LEGAL RESPONSES TO VIOLENCE AGAINST WOMEN

The United Nations defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”  Intimate partner violence refers to behaviour by an intimate partner or ex-partner that causes physical, sexual or psychological harm, including physical aggression, sexual coercion, psychological abuse and controlling behaviours. Sexual violence is “any sexual act, attempt to obtain a sexual act, or other act directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting. It includes rape, defined as the physically forced or otherwise coerced penetration of the vulva or anus with a penis, other body part or object, attempted rape, unwanted sexual touching and other non-contact forms”.

 While it may not be possible to envisage a complete and comprehensive legal response to violence, either by the Commonwealth or the State and Territories, the level of tolerance of it in different areas of the law needs to be examined and addressed. A brief reading of judicial decisions across a range of different legal issues shows that violence is quite often a part of the background or context of a legal dispute but it is either ignored or treated as irrelevant. This is not to say, however, that courts always ignore or miss the violence in cases involving domestic relationships when the case is not one legally classified as ‘about violence’. Indeed, the cases discussed below indicate that courts can respond to male violence against women. However, it was obvious from the response of women to the law that such judicial sensitivity to issues of violence was by no means uniform.

In traditional legal education, violence against women is not typically a subject in the law course in its own right nor, more importantly, is it a topic in a general compulsory course such as property law, contract, equity or administrative law. While it is an essential and comparatively visible part of criminal law in courses in Australian law schools, it should also be a prominent part of all traditional law subjects. Violence is often part of the context of a case, or essential to understanding the dispute between the parties, even while it is not the central focus of the case. The federal Department of Employment, Education and Training (DEET) has recognised this by providing funds for the development of course materials on key thematic areas, including violence, for inclusion in core subjects within the law curriculum.

The Senate Standing Committee on Legal and Constitutional Affairs has recently examined the issue of gender bias in the judiciary. Its May 1994 report concentrates on issues of sexual violence against women. The Committee found that stereotypes deriving from historical, social attitudes which did not accept women’s status as equal, autonomous citizens continue to be used. While the Senate Committee focused on particular cases of sexual assault that had received widespread media coverage, they suggested that it was not an adequate response to the issue of gender bias merely to hold individual judges responsible. They saw the problem a real, significant but largely unconscious problem of a systemic nature calling for multiple solutions. The law can respond to violence against women in a number of different ways, as an examination of violence against women in the home illustrates. These responses include enforcement of existing criminal laws, such as the law of assault; resort to quasi-criminal laws, such as the use of protection/restraining/apprehended violence orders; the use of administrative law remedies, such as a writ of mandamus to compel police to exercise their powers under the criminal law in appropriate cases.

The apex court in State of Punjab v. Major Singh, while dealing with section 354 had interpreted the term ‘women’ denoting female of any age. It further held that an offence which does not amount to rape may come under the sweep of section 354, IPC. In Rupen Deo Bajaj v. Kanwar Pal Singh Gill, the Supreme Court said that the offence under this section should not be treated lightly as it is quite a grave offence. In certain western countries privacy to person and even privacy to procreation are regarded as very sacrosanct rights and if this offence is studied in that prospect the offence would clearly show that it affects the dignity of women and, therefore, the accused of this offence, when proved, should be appropriately dealt with. In People’s Union for Democratic Rights v. Police Commissioner, Delhi, Police Headquarter and another, the supreme court after holding that the accused was guilty of offence under section 354 of IPC, awarded, to the victim, compensation which is to be recovered from the salary of the guilty officers.

Offence of rape is regarded as one of the most heinous crimes. Every person’s physical body is a temple in itself. No one has the right to encroach and create turmoil. When there is any kind of invasion or trespass, it offends one’s right. The right of a woman to live in her physical frame with dignity is an epitomization of sacrosanctity. An impingement or incursion creates a sense of trauma in the mind of the person. Not only does the body suffers but also the mind goes through such agony and tormentation that one may not be in a position to forget it throughout her life.

In State of Haryana v. Mange Ram, the Supreme Court gave emphasis highlighting that the evidence in the case of this nature should be appreciated on broader probabilities and the judge should not be carried away by insignificant contradictions. In State of A.P. v. Ganula Satya Murthy, the Supreme Court made an observation that it is an irony that while we are celebrating women’s rights in all spheres we show little or no concern for their honour. Their lordships further observed that the courts must deal with rape cases with utmost sensitivity and appreciate the evidence of the totality on the background of the entire case and not on isolation. Violence is a part of the background to many legal disputes, even though it is less frequently the central issue before a court or tribunal. 

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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