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Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

January 2017

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Foundation for Liberal And Management Education

Domestic violence is a serious issue in India with 37% of women reporting being beaten at some point in their lives in national surveys. While this is likely to be an undercount given the stigma associated with intimate partner violence and women’s lack of access to the justice system, it is noteworthy that conviction rates continue to be extremely low even for the those cases that end up in the Courts. Drawing from critical legal anthropology and feminist jurisprudence, I argue that legal language, procedures and discourses attempt to normalise domestic violence by deploying discursive strategies such as consistent and pervasive use of the passive voice diminishing perpetrator responsibility, trivializing violence by avoiding the use of violent attributions in describing violent acts, and shifting blame to victims. Of the 787 cases registered under Section 498(A), disposed by the Bombay High Court between 1998 and 2004, just 6% obtained a conviction where the victim was alive, and 35% to 39% were convicted where victims had committed suicide or had been murdered. Conviction rates were extremely variable with many judges acquitting all the cases that they tried and just two judges convicting a third or more of the cases brought for trial. This disparity was further consolidated by procedural inconsistencies including the treatment of evidence, extent of documentation required to prove a history of abuse, the classification of interested witnesses and retractions by medical examiners, who were seldom cross-examined. The findings present a very troubling picture for gender justice in India, suggesting that what we need are not additional laws but a gender-aware approach to the implementations of existing laws.

Judges' records of convictions (for cases disposed by 2005) All names anonymised

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Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

Law, Social Justice & Global Development

Gendering Legal Discourse: A Critical Feminist Analysis of

Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

ARTICLE INFO

Issue: 2016 (2).

This article was published on: 16 Jan, 2017.

Keywords: Gender, Domestic Violence, Law, Feminist Jurisprudence, India.

ABSTRACT

Domestic violence is a serious issue in India with 37% of women reporting being beaten at some

point in their lives in national surveys. While this is likely to be an undercount given the stigma

associated with intimate partner violence and women’s lack of access to the justice system, it is

noteworthy that conviction rates continue to be extremely low even for the those cases that end

up in the Courts. Drawing from critical legal anthropology and feminist jurisprudence, I argue that

legal language, procedures and discourses attempt to normalise domestic violence by deploying

discursive strategies such as consistent and pervasive use of the passive voice diminishing

perpetrator responsibility, trivializing violence by avoiding the use of violent attributions in

describing violent acts, and shifting blame to victims. Of the 787 cases registered under Section

498(A), disposed by the Bombay High Court between 1998 and 2004, just 6% obtained a conviction

where the victim was alive, and 35% to 39% were convicted where victims had committed suicide

or had been murdered. Conviction rates were extremely variable with many judges acquitting all

the cases that they tried and just two judges convicting a third or more of the cases brought for

trial. This disparity was further consolidated by procedural inconsistencies including the treatment

of evidence, extent of documentation required to prove a history of abuse, the classification of

interested witnesses and retractions by medical examiners, who were seldom cross-examined. The

findings present a very troubling picture for gender justice in India, suggesting that what we need

are not additional laws but a gender-aware approach to the implementations of existing laws.

AUTHOR

Sreeparna Chattopadhyay is a cultural anthropologist by training and is currently

an Assistant Professor at the Azim Premji University, Bangalore.

http://www2.warwick.ac.uk/research/priorities/internationaldevelopment/lgd/

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

INTRODUCTION

Domestic violence (DV) is a serious problem in

India with nearly 39% of women reporting physical,

sexual or emotional abuse at some point in their

lives (Gupta 2014). However most cases of DV are

never reported to the police, as evidenced through

the reporting gap between the National Family and

Health Surveys, a representative, anonymous

reproductive health survey in India and the

National Crime Records Bureau, a central

repository of all crimes in India (Ghosh 2013).

While reported cases of DV have been increasing

with a 55% increase between 2005 and 2009, there

has been a commensurate decrease in the rates of

the police filing a formal complaint by 2%, and

arrests from a low of 2.19% to 1.95%. The slight

increase in conviction rates for DV, up from 19.58%

to 21.02% is negligible, and much lower than the

average convictions obtained for all crimes (41.7%)

and crimes against women (27.8%)

In the last three years, there has been an

expansion of women’s protections in India through

the legal system; for example new laws have been

passed to prosecute sexual harassment at the

workplace, acid attacks and stalking. These have

been partly as a result of the extensive

recommendations of the Justice Verma Committee,

constituted after the brutal gang rape and murder

of a Delhi student Jyoti Singh in 2012 inside a

moving bus

. Simultaneously and perhaps as a

backlash, there have been demands from Men’s

Rights Organizations to repeal some of the more

progressive laws, for instance Section 498(A), that

protects women from DV, by arguing, that most of

these cases are false and women are using these to

extract alimonies during bitter divorce battles and

to secure favourable child custody arrangements

(Basu 2016; Oxfam 2013)

. Men’s rights groups and

conservative groups such as Repeal498A.org and

Save the Indian Family are discomfited by the

expansion of laws to guarantee women greater

rights in India, and argue that they allow for

Source: http://feministlawarchives.pldindia.org/wp-

content/uploads/498A-Report-for-NCW-final.pdf

Source:

http://www.prsindia.org/uploads/media/Justice%20verma%20commit

tee/js%20verma%20committe%20report.pdf

For further details see websites such as

http://www.saveindianfamily.org/; http://mensrightsassociation.org/;

http://menrights.org/

“persecution of men at every level

, including

through “fake” rape cases, prosecuting mothers

and sisters’ of husbands during “fake” dowry

harassment and DV cases and other criminal

offences against women. However just 10% of

cases filed under Section 498(A) were found to be

false in 2009, a much lower percentage compared

to other criminal cases and just 0.03% of women

who were subjected to DV in 2008, reported it to

the police (Swayam 2011). Continuing in the same

vein, in this paper I empirically examine domestic

violence

in India using a mixed-methods approach

that permit us to (a) to interrogate whether the

claims of fake cases are real or imagined and (b)

establish the relationship between the low rates of

convictions for DV offences and discourses

advanced during the adjudication of these cases.

These questions will illuminate the contestations

that result from the tensions between the forces of

patriarchy and the demand for greater rights for

women.

India’s commitment to gender justice needs to

be discussed both in the contexts of domestic

demands for more gender-equitable laws from

women’s rights groups as well as India’s

international obligations as a signatory to the

CEDAW and other international instruments. For

instance the General Recommendation number 19

at the 11th session of the CEDAW in 1992

specifically addresses issues of violence against

women including domestic violence through the

following measures: “(a) criminal penalties where

necessary and civil remedies in cases of domestic

violence; (b) rehabilitation programmes for

perpetrators of domestic violence; (c) parties

should report on the extent of domestic violence

and sexual abuse, and on the preventive, punitive

and remedial measures that have been taken”

. Yet

as this article demonstrates the extent of

criminality in DV offences are often contentious

because of the tensions between feminist

Source: http://www.mid-day.com/articles/men-are-persecuted-at-

every-level-says-founder-of-mens-rights-organisation/15146083

I use the term domestic violence loosely to define abuse that a

woman is exposed to in her marital household perpetrated by a

husband or any of his relatives. Section 498 (A) includes both

emotional and physical abuse that may or may not be related to dowry

demands.

Source:

http://www.un.org/womenwatch/daw/cedaw/recommendations/reco

mm.htm

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

jurisprudence and the continuing hold of

traditional ideas of gender differentiated behaviour

that mandates that women treat marriage as a

sacrament, even enduring abuse and violence. As a

result, perpetrators of DV are often acquitted, with

conviction rates as low as 6%, which this study

demonstrates. There are almost no rehabilitation

programs for perpetrators of DV and while NCRB

records DV, given that marital rape is not a crime in

India, there are no legal enumerations of the

extent of sexual violence in marriages. However

surveys like the NFHS, a nationally representative

survey with nearly 100,000 women aged 15-49

indicate that 1 in 10 women report being subject to

sexual violence in the last 12 months, with younger

women reporting higher percentages (NFHS-3,

2005-2006).

At the 58th Session of the meetings of the

CEDAW held with Indian delegates and expert

committee, specific questions were asked with

reference to the non-criminalization of marital

rape. The responses of the delegates were vague

and inadequate stating that “marital rape is not

considered rape in the Indian constitution” (IDSN

2014, CEDAW 58th Session)

. Despite the

obligations imposed by the CEDAW, DV in India is

often treated as a private, family matter, especially

in the absence of dowry related violence. Police are

often reluctant to file cases, frequently asking

couples to resolve their differences amicably,

outside the criminal justice system. The

overreaction of the criminal justice system has

been so acute that Delhi and Madras High Courts

have passed orders, in contravention to the Indian

Penal Code that the police do not file complaints

unless there are “visible signs of abuse” on the

complainant (Reddi 2012). Currently complaints

filed under Section 498(A) are non-bailable, non-

compoundable and cognizable offences

. However

Source: http://idsn.org/wp-

content/uploads/user_folder/pdf/New_files/UN/TB/CEDAW_review_o

f_India_-_minutes__July_2014_.pdf

Non-compoundable offences are classified under Section 320 of the

Code of Criminal Procedure, CrPC. India. These offences are serious

and no compromise can be reached between the victim and the

accused under the assumption that these crimes not only affect the

private party, but also society at large. Rape, domestic violence,

murder, grievous hurt – all lie within the ambit of non-compoundable

offences. Cognizable offences are those where the police officers can

arrest without a warrant (non-cognizable offences require the

procurement of a warrant from a magistrate), produce the accused in

a court of law, investigate the crime, make a chargesheet through

which the magistrate can demand that the accused be arrested, if the

he/she is out on bail (Source: http://lawcommissionofindia.nic.in/101-

169/Report154Vol1.pdf)

there is a bill pending in the Parliament to make

the law non-compoundable, implying that the

complainant can withdraw the case at any time.

One can only imagine the pressure on women by

their families, to withdraw complaints of DV, if this

bill were to be passed

2.0 Methodology and Context

The analysis presented in this paper draws

from a year of fieldwork in Mumbai during 2005/06

that employed a mixed-methods approach

including archival analysis of the documents

generated as part of trials in the Bombay City, Civil

and Sessions Court in South Mumbai, statistical

analysis of cases and observation of court

proceedings, in conjunction with ethnographic

fieldwork in a slum in one of the most deprived

wards in north-eastern Mumbai

. Documents

reviewed here include judgments, post-mortem

reports, First Information Reports (F.I.Rs), Spot

Panchnamas (reports prepared at the scene of

crime) and Inquest Panchnamas (reports prepared

during autopsies), medical records, dying

declarations, witness testimonies including

statements of relatives, and other documents

produced during the trial. Seven hundred and

eighty seven cases for which records could be

obtained for, form the basis for the numerical

analysis in this study

Section 498(A) of the Indian Penal Code

prosecutes domestic violence offences and

includes within its remit husbands and in-laws of

complainants. This analysis suggests that legal

language, procedures and discourses, disguise

brutal violence normalizing or trivializing these acts

through the deployment of specific discursive

strategies. Using a feminist and critical

anthropological lens I argue that strategies such as

the consistent use of the passive voice that

Source: http://indianexpress.com/article/india/india-

others/government-plans-to-amend-anti-dowry-harassment-law/ and

http://www.498a.org/contents/general/Malimath%20Committee_Sel

ectedSections.pdf

In several Indian cities, the Sessions Court adjudicates on matters

related to criminal cases. There are three Sessions Courts in Mumbai,

two in the Southern part of the city and one in the western part of the

City. Cases on appeal from District Courts in other parts of

Maharashtra are tried in the Sessions Court.

I had to manually examine all the handwritten registers that are

supposed to record every case disposed in the Sessions Court. The

judge, the section(s) under which the cases are filed, the case number

(which records the year it was filed), the outcome of the case

(pending, acquitted, convicted, transferred) and details of the

conviction.

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

diminishes perpetrator responsibility, routinisation

of violence by the avoidance of violent attributions

in describing violent acts, and the portrayal of

victims as aggressors undermines the element of

violence in domestic violence cases that ultimately

discourage convictions for these offences

Procedural flaws also contribute to the low

conviction rates including the differential standards

and treatment of evidence by different judges,

sloppy investigations of crimes and the

embellishment of non-dowry related cases with a

dowry clause that ultimately results in the case

losing its credibility

. In the selection of case

studies, I have excluded dowry related violence

because typically trials related to dowry violence

conclude quickly and are often accompanied by

stringent punishments; however the extent of

‘criminality’ involved in marital violence where

dowry plays little or no role is heavily contested

The findings from this study must be reviewed

taking into account that this is just the tip of the

iceberg; the reporting rates and subsequent

conviction rates for domestic violence cases are

extremely low in India. The incidents that are

reported to the police usually involve extremely

serious cases of domestic violence and often the

victims are already dead. Data from the National

Crime Records Bureau (NCRB 2010) indicates that

despite only a slight difference in reported

domestic violence (6.8% in Maharashtra and 7.9%

overall for India), the conviction rate is much lower

at 2.1% for the state and much higher nationally at

19.1%

. When NCRB data is compared to NFHS-3,

Camiss (2006) finds similar processes at play with victim testimonies

not being accorded the seriousness it deserves and DV cases being

tried in Magistrate’s Courts in the England and Wales rather than the

Crown courts.

A study in Tamil Nadu in Southern India revealed that in some

instances, the police employ a two-tiered approach to crimes involving

wife abuse- prosecuting them when they are part of harassment

related to dowry, and trivializing them when they are unrelated to

dowry demands (Kethineni & Srinivasan, 2009). In some cases, the

police embellish domestic violence cases with the anti-dowry laws

under the (mistaken) assumption that domestic violence coupled with

dowry would enhance the possibility of a conviction. However this

ultimately weakens the original case, because in the absence of

credible evidence for dowry related harassment, judges are

predisposed to disregard the case in its entirety, even if the evidence

for marital abuse is strong.

I have included dowry related violence in the statistical examination

of cases when they are read with Section 498(A). For a description of

the offences which are often registered with domestic violence cases,

please see Table 2.

The crime rate is calculated by dividing crimes under Section 498(A)

by the mid-year population (based on census data). There is a large

disparity in conviction rates across states with some states convicting a

it appears that in Maharashtra 23% fewer cases are

reported to the police, compared to the national

average

. Just 6 % of the 787 cases reviewed in

this study involving domestic violence that were

tried in the Bombay Sessions Court obtained a

conviction. However the conviction rates are

extremely variable, with some judges not

convicting a single case brought to their attention,

while others convicting 33% of cases. Subsequent

sections in this paper will explore reasons that may

contribute to such large variations in conviction

rates including the role of progressive judges in

facilitating gender-just outcomes, a critical

evaluation of legal procedures and discourses for

Section 498(A) cases, inconsistencies in what

constitutes clinching evidence and finally the

impact of low conviction rates on the normalization

of DV as well as reinforcing claims that DV cases

lack authenticity.

3.0 Can Judges And Courts Be Instruments Of

Social Reform?

It is instructive to bring in Rosenberg’s theory

of courts and judges as instruments of social

reform based on the landmark Supreme Court

judgements such as Roe V Wade and Rosa Parks in

the United States into our current discussion

(Rosenberg 1991; 2008)

. Rosenberg theorises two

models of the Court: the Constrained Court and the

Dynamic Court; the notion of the Constrained

Court derives from the belief that courts are unable

to effect social reform in the absence of

concomitant support from the legislature as well as

the wider society. In contrast a Dynamic Court can

be an instrument for transformation because

courts are free from electoral pressures and thus

they can act in the face of public opposition for

greater equity. Indeed there are instances when

judges (and by extension) courts appear

constrained by cultural scripts that allow for the

trivialization of domestic violence, and examples

when judges act in opposition to these scripts

ensuring justice

third of cases brought to its attention while others convicting very few

cases.

For further discussions on the gap between domestic violence

reported in national surveys such as the National Family and Health

Surveys and cases registered with the police that make its way to the

National Crime Records Bureau, see Ghosh (2013) and Gupta (2014).

The Indian constitution can be usefully compared to elements within

the American constitution (Galanter 1992).

For a discussion of these, see the Shah Bano case (1985) which

awarded a divorced Muslim woman alimony in contravention to

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

While Section 498(A) contains a long list of

actions which are deemed violent, analysis of

verdicts suggest that adjudicators often allow their

attitudes towards modernity, patriarchy and

familial obligations to influence their assessment of

the extent of criminality and brutality involved in

these cases (Basu 2012; 2016). Further, while many

judges demand extensive medical and forensic

documentation before convicting perpetrators, a

few judges convict based on eyewitness

testimonies, dying declarations and precedents,

and the lack of medical documentation proving

prior abuse is not deemed necessary to obtain

convictions. Thus what counts as evidence in one

judge’s court may not stand scrutiny in another

judge’s, exposing inconsistencies involved in the

evidentiary processes as well as judges’ subjective

treatments of domestic violence cases.

3.1 A Feminist Critique of Legal Procedures,

Discourses and Outcomes

Whereas the notion of a Dynamic Court

suggests that courts are capable of instituting

reform and there exist examples of such

transformative jurisprudence in India, there are

also multiple ways, by which the criminal justice

system fails victims of domestic violence, including

substantial scholarship that suggest procedural

failings, prejudices of the police and poor

investigations contribute to low conviction rates in

India

. Procedural shortcomings that fail litigants

Islamic Personal Laws in India, though this was withdrawn due to

political and religious pressure (Agnes 2001), Vishakha v/s State or

Rajasthan (1997) which broadened the definition of sexual harassment

and recognised it as a violation of fundamental rights, Om Prakash v/s

Dil Bahar (2006) where the Supreme Court ruled that even in the

absence of medical evidence, a rape accused could be convicted,

based on the sole testimony of the victims. The Justice Verma

Committee report is also another example of the Dynamic Court which

led to amendments in the criminal law allowing for specific crimes to

be prosecuted, recommended a suite of safety measures for women

and suggested stringent punishments for crimes against women

contingent on the seriousness of the offence.

Studies indicates that the criminal justice system often fails victims

of domestic violence not just by failing to convict perpetrators, but

from the time the cases are registered, until the case comes up for

trial, consciously and constantly attempting to discredit the victim, so

that the complainants can be discouraged from going to trial

(Geethadevi, Raghunandan and Shobha, 2000; Jejeebhoy and Cook,

1997). A study of police stations and women’s protection cells

revealed that biased, shoddy and corrupt investigation by the police as

well as deliberately preventing domestic violence cases from being

brought to trial by telling women that their injuries are ‘simple’ and do

not need state intervention, are some of the ways by which the system

fails victims of domestic violence (Mitra, 2000; Prasad, 1999; Solanki &

Post, 2001). For further discussion on the lack of state accountability in

delivering gender justice see Agnes (1993), Kapur (2005), Kishwar

(1999), Moore (1998) and Sunder Rajan (2003).

are often overt and easily substantiated; for

instance, in this study I find in at least half the 40

cases reviewed in-depth, instances of suppression

of evidence, intimidation of witnesses and victims,

and deliberate delays in hearing and similar

strategies. It should be noted that these are not

exclusive to domestic violence cases and may also

occur with other offences (Bhushan and Pranati

2007; Gangoli 2011; Thakur 2012)

However some interventions by the defence

with the tacit or direct complicity of the judicial

system, assume a form that is often covert and

intangible. These are deliberately deployed in cases

that have a gender dimension; for instance,

systematic invalidations of victims’ claims of

violence through the use of specific discursive

devices such as the passive voice to diminish

perpetrators’ responsibility, shifting blame from

aggressors to victims, and insertions of claims

about victims’ mental health without any medical

substantiation. As one of the case studies in this

study illustrates a woman whose death was initially

ruled suspicious, then accidental, was finally

declared to be “mentally unbalanced” and believed

to have committed suicide in the absence of any

evidence

. While the law claims that everyone is

equal, feminist critiques of legal processes and

legal discourse force us to question the neutrality

of the law

. In the following sections, I will offer

examples using case studies that will explicate the

ways in which legal discourse trivialises domestic

violence as well as the statistical impact of

In at least half of the 40 case files examined in-depth for this study,

this was the case.

Pinto (2014) in her work on mental health facilities in India gives

examples of women left in mental health institutions by their

husbands or other kin as a result of a marital dissolution, regardless of

the medical diagnosis of their conditions. It is not uncommon for

institutions to collude to declare women mentally unfit, often at the

behest of their marital families.

See Baxi 2010, 2014; Frug 2014; Menon, 1998; MacKinnon, 2001 for

further discussion. Feminist scholars have argued that laws have often

been used to reinforce the social subjugation of women; for instance,

MacKinnon argues that liberalism supports state intervention on

behalf of women as abstract persons with abstract rights; but in reality

‘the state is male in the feminist sense’; abstract rights only ‘authorize

the male experience of the world’ (MacKinnon in Harding, 2004:169).

Frug makes three claims about the relationship between women’s

bodies and the law that reflect the deeply patriarchal spaces that

women inhabit: (a) legal rules allow for “terrorization of the female

body” and “a body that has learned to scurry, cringe and to submit”

(2014:129) (b) legal rules authorise the “maternalization of the female

body” and therefore any act that is seen to be in opposition to this

nurturing function (sex work for example) is penalized while those in

alignment of this function are rewarded (c) legal rules permit the

sexualisation of the female body, particularly evident when women’s

sexual background are brought into question during sexual assault

cases.

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

normalising domestic violence, comparing the

conviction rates of judges to highlight disparities.

4.0 Legal Discourse- The Indian Penal Code and

Section 498(A)

Section 498(A) is an example of

transformative feminist jurisprudence in India,

introduced as a result of intense pressure from

social activists working towards gender justice and

against dowry deaths

. On the 25th of December

1983, a new cognizable offence, cruelty by husband

or in-laws came into being, which obligated the

police to arrest husbands and in-laws once a

complaint had been registered by the victim or any

of her relatives. Additionally from 1983 to 1986,

there were some notable amendments undertaken

including changes to the Indian Evidence Act

(Section 113), the Dowry Prohibition Act [Section

304(B)], which made the offer and receipt of dowry

a cognizable offence, and the introduction of

further provisions to protect women from

domestic violence in the marital household.

Section 498(A) states,

‘Whoever, being the husband or the relative of

the husband of a woman, subjects such woman to

cruelty shall be punished with imprisonment for a

term which may extend to three years and shall

also be liable to a fine. For the purpose of this

section, "cruelty" means-

(a) Any wilful conduct which is of such a nature

as is likely to drive the woman to commit

suicide or to cause grave injury or danger to

In October 2006, the Protection of Women from Domestic Violence

Act (PWDA), a new law came into force. The act defines domestic

violence as (a) harms or injures or endangers the health, safety, life,

limb or well-being, whether mental or physical, of the aggrieved

person or tends to do so and includes causing physical abuse, sexual

abuse, verbal and emotional abuse and economic abuse; or (b)

harasses, harms, injures or endangers the aggrieved person with a

view to coerce her or any other person related to her to meet any

unlawful demand for any dowry or other property or valuable security;

or (c) has the effect of threatening the aggrieved person or any person

related to her by any conduct mentioned in clause (a) or clause (b);

or(d) otherwise injures or causes harm, whether physical or mental, to

the aggrieved person. The passage of this law was a watershed

moment in Indian feminist activism because it offers protection to not

only married women, but also women in non-marital partnerships that

involve cohabitation and prosecutes offences committed by one’s

natal family in the case of crimes such as “honour killings” where a

woman and often her partner are killed if they have transgressed

religious or caste boundaries in the choice of partners. Since this law

came into force after the completion of fieldwork, this analysis does

not cover the PWDA.

For further discussion see Danda and Parashar (1999), Deshpande

(1984), Kapur and Cossman (1996), Jaising (2001), Solanki & Post

(2001), Sunder Rajan (2004).

life, limb or health (whether mental or

physical) of the woman; or

(b) Harassment of the woman where such

harassment is with a view to coercing her or

any person related to her to meet any unlawful

demand for any property or valuable security

or is on account of failure by her or any person

related to her to meet such demand.]’

The law stipulates that the victim or her

relatives can file a complaint with the police on

grounds of cruelty and brings within its remit the

following actions: persistent denial of food, forcing

perverse sexual relations on wife, constantly

locking her out of the house

, denying her access

to children thereby causing mental torture,

physical violence, taunting, demoralizing and

putting her down with the intention of causing

mental torture, confining her at home and not

allowing her normal social intercourse, abusing

children in their mother's presence with the

intention of causing her mental torture, denying

paternity of the children with the intention of

inflicting mental pain upon the mother, and

threatening divorce unless dowry is provided.

4.1 The Limits Of Defining ‘Cruelty’

‘Cruelty’ in the legal parlance brings within its

purview the most serious instances of physical

and/or mental emotional abuse and does not

necessarily capture the frequent and chronic

violence that many women experience in their

daily marital interactions

. While behaviours such

as slaps, kicks, shoving and pulling hair could all be

legally defined as ‘cruelty’, in practice, without

medical documentation it becomes virtually

impossible to establish ‘cruelty’ of the variety

which would attract the provisions of this law.

Furthermore, emotional abuse which is within the

purview of Section 498(A) is nearly impossible to

establish through documentation, unless

psychological support has been sought by the

victims, which may happen in a tiny fraction of the

Although a woman has the customary right to remain in the

matrimonial home for as long as she is married, there is no law that

guarantees this right. If pressurised to leave her matrimonial home,

she can request an injunction protecting her from being evicted.

However these injunctions and restitution of rights are extremely

complicated and difficult to enforce (Basu 1999). Therefore lawyers

often advise women, to not leave their matrimonial homes, even if she

is being abused.

For a discussion of the ways in which women’s ‘suffering’,

particularly emotional suffering is negotiated and articulated in the

context of marital dissolutions within Indian courts see Sen (2010).

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

cases, as evidenced in this study and others (Ghosh

and Choudhuri 2011) . However as the case studies

will reveal an established pattern of physical,

sexual and/or emotional abuse is sometimes

neither necessary, nor sufficient, to convict under

Section 498(A). While some judges display a

nuanced understanding of ‘cruelty’ and

acknowledge that standards of cruelty are relative,

others demand extensive medical documentation

before they are willing to convict.

4.2 Eroding the Seriousness of Abuse and Violence

The case studies reveal that far from being

neutral, judges often allow their gendered

subjectivities and prejudices to slip into their

professional judgements of cases. Constrained by

regressive ideas about obligations of daughters-in-

law, the judiciary assumes the role of an enforcer

of patriarchy, deploying language to minimise the

seriousness of domestic violence offences. Drawing

from critical legal anthropology we observe that

law and legal proceedings constitute discourses,

acts and processes that are at once powerful and

contentious. The legal process can be seen as a

paradox- it is simultaneously an arena that

oppresses and engenders subtle acts of

dominations as well as allows for protest and

resistance that permit participants to challenge

hegemony despite its naturalization in the social

order

. In the examples selected here it is

observed that while in some cases the ‘iron cage of

legal instrumentality’ (Riles 2006) as well as judges’

predispositions disallow convictions, in a Dynamic

Court where a judge is unimpeded by gendered

cultural scripts, justice can be delivered.

The four case studies presented at length in

this article were selected because they met the

analysis criteria: none of them were read with

Section 304B (anti-dowry law), they represented a

range of socio-economic circumstances, from being

very poor to being middle class, and all involved

serious domestic violence offences where victims

were either hospitalised or dead. I will refer to

judgements of lower courts where relevant but will

A comprehensive review of critical legal anthropology is beyond the

scope of this paper; however for discussions please see (Adelman,

2004; Chouliaraki & Fairclough, 1999; Comaroff & Roberts, 1981;

Goodrich, 1987; Hirsch, 1998; Lazarus-Black, 1997; 2001; Lazarus-Black

and Hirsch 1994; Lazarus-Black and Merry 2003; MacMartin & Wood,

2005; McEvoy & Conway, 2004; Philips, 1998; Sunderland, 2004;

Wodak & Meyer, 2003; Yngvesson, 1993).

primarily focus on verdicts delivered at the City,

Civil and Sessions Court. The first case is produced

at length and in verbatim to demonstrate the

strategic utilization of discursive strategies to

diminish the seriousness of violent acts. In the

second case, a lack of a documented history of

abuse leads to a suspicious death being ruled as a

suicide, despite the absence of evidence to support

the judge’s verdict. In the third case the very

presence of a documented history of physical and

mental abuse does not lead to convictions, and in

the fourth case convictions are obtained despite

the lack of a documented medical history of abuse

because the judge displays a contextual

understanding of the social, cultural and economic

constraints that victims of domestic violence often

encounter in their quest for justice.

Case Study 1

Ramesh Raghavji Shah (husband, accused number

one), Raghavji Anandji Shah (father-in-law, accused

number two) and Laxmibai Raghavji Shah (mother-

in-law, accused number three) V. The State of

Maharashtra (Filed 1986)

The facts of the case were as follows: Rashila’s

husband had started physically abusing her soon

after their marriage. Although she claimed that her

husband and in-laws demanded a car and

jewellery, the documents did not suggest that

dowry was the cause of the violence. She fled to

her natal family a number of times but was

persuaded to return to her matrimonial home,

under assurances that she would not be abused.

After a year and a half of being married, Rashila

went to live with her parents on a semi-permanent

basis because her husband did not stop being

physically violent. However reconciliation was

organized by their Caste Panchayat and she was

persuaded to return to her husband

. One of the

most important conditions of this mediation was a

reduction in contact with her natal family including

reducing the frequency of her visits to her parental

home in Bombay. On the evening of 4th of May

1986, her husband hit her on the chest while she

was undressed and when she tried to scream

thrust the four fingers of his right hand which

Mediation in domestic disputes are often taken up by caste

panchayats to facilitate reconciliation between couples, thus avoiding

divorces in India (Kethineni 2014)

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

caused serious injuries to her oropharynx and then

tried to throttle her. She somehow managed to

escape and her in-laws rescued her and took her to

the hospital. The case was filed under Section

498(A) as well as Section 307, which is a charge of

grievous hurt and complaints were registered

against her husband as the primary accused and

her mother-in-law and father-in-law as the co-

accused. The case lasted for for 15 years, finally

resulting in the conviction of her husband under

Section 498(A), but not Section 307. He was

sentenced to Rigorous Imprisonment for a month

and ordered to pay a fine of Rupees 5000 (roughly

100 USD). It should be noted that during the 15

years it took to deliver the verdict, significantly

longer than the average time of 9 years for the

cases selected, the charges against the in-laws

were dropped on account of their deaths.

Additionally the extent of their involvement in this

particular act of violence was not clarified in the

documents, thus even alive, it is unclear whether a

case could have been made against them.

Diminishing Perpetrator Responsibility

Language is specifically deployed to

diminish perpetrator responsibility. Note the

excerpt below reproduced from the verdict, which

describes the incident that led to Rashila being

hospitalized and the case being tried under Section

498(A).

‘On the evening of 4th May 1986 after

return of the entire family from an outing

at about 10.45 p.m. the complainant and

accused No.1 retired to their bedroom. On

the accused No.1 … asking the complainant

to take off her clothes she complied.

Thereupon accused No.1 inflicted a couple

of blows on her chest and when she

shouted for help the accused No.1 thrust

the four fingers of his right hand deep into

her mouth and pressed her neck with the

other hand. In the course of struggle, the

complainants head struck against a

wooden cot resulting in [a] bleeding injury

above her right eye-lid. The father-in-law

accused No.2 … who was in the adjoining

room hearing the commotion forcefully

opened the door and finding the

complainant naked asked her to dress up

and thereafter he asked her to wipe off the

blood stains on the floor. Hearing the

shouts of the complainant several

occupants of the building collected in

the chowk and some of the them … rushed

to the flat and prevented the accused No.1

from further assaulting the complainant

’.

A number of important points emerge:

firstly, the use of the passive voice, which is

employed consistently throughout the judgement.

The effect is to diminish the notion that the

accused actively tried to injure the victim (the head

struck the cot rather than the perpetrator bashed

his wife’s head on it). Secondly a distraction is

inserted, the nakedness of the victim. It is unclear

why the victim’s state of undress is necessary since

there are no explicit references to sexual violence

or psychological humiliation in any of the

documents. It appears to have been employed not

out of a legitimate need, but for voyeuristic

reasons, not dissimilar to the types of discourses

advanced during rape trials (Baxi 2009; 2014). The

fact that there was blood on the floor which

needed to be “wiped off”, alludes to the extremely

serious nature of the assault, corroborated by

medical certificates. It is worth noting that the

incident probably occurred when the accused and

the victim were engaged in sexual intercourse,

although there is no specific mention of sexual

violence in the documents.

Labelling the Complainant as an Aggressor

In this case and in several others, it is not

unusual for defence lawyers to portray women as

aggressors rather than victims. While these tactics

of the defence are not surprising, what is unusual is

for these to bleed into the verdicts of judges. The

trial judge at the Lower Court had acquitted all

three accused on the grounds that he disbelieved

that the victim was subjected to ‘cruelty’ as

defined by Section 498(A), despite the seriousness

of her injuries. Section 307 which carries a higher

sentence was not applied because the judge played

on the technicality of the phrase ‘pressed her neck’

instead of ‘strangulation’. While in Hindi the two

terms are used by the same phrase (gala dabana),

the passage below casts doubts on the intentions

of Rashila’s husband.

PW is an abbreviation for Prosecution Witness.

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

So far as the charge under section 307 of

I.P.C is concerned the learned trial Judge

has disbelieved the testimony

of the complainant on the

ground that the medical evidence does not

support the prosecution case that

accused No.1 attempted to strangulate or

throttle his wife Rashila Shah. Moreover

Rashila Shah in her testimony has not even

remotely referred to any attempt made by

accused No.1 to strangulate her and it is

only when she was called to

explain the circumstances in which she

sustained injuries she stated that her

husband had pressed her neck and further

reference is made by the learned trial

Judge to the statement of the complainant

at Exh.10 wherein the complainant has

stated that the injury alone was to the right

eye consequent upon her fall on the cot

in the course of grappling with her

husband i.e. accused No.1. In view thereof

her testimony before the Court that the

accused No.1 caused her eye injury

by dashing her against the cot is an

improvement. Furthermore the learned

trial Judge seems to have been swayed to

believe that it was the complainant who

was aggressor in view of the fact that

accused No.1 … had suffered nail scratches

at the hands of the complainant which has

been borne out by the medical certificate

at Exh.38; and also ‘from the surrounding

circumstances it was clear that things

happened on the spur of the moment’.

The excerpt above reinforces the earlier

observation regarding the pervasive use of the

passive voice which diminishes perpetrator

responsibility as well as highlights a number of key

issues: firstly, the assault is described as ‘grappling’

which dilutes the vicious nature of the assault.

Thrusting four of his fingers into her throat, which

abraded her tonsillarpillar (oropharynx) could

hardly be classified as ‘grappling’; secondly it is not

unusual to portray women as aggressors when they

try to defend themselves, although the Sessions

Court judge reprimanded the Lower Court Judge

for this characterisation; thirdly describing the

violence as an act ‘that happened on the spur of

the moment’ makes it seem un-premeditated,

conferring an organic quality to it, forcing us to

view it as an accident, rather than a planned attack

that is meant to inflict physical harm.

Reducing Natal Family Contact

The view of a conflict squarely lays blame

on a daughter-in-law’s unwillingness or inability to

fully integrate with her marital household due to

enduring ties with her natal family is not atypical in

domestic violence arbitration (Basu 2012; 2016;

Kowalski 2016). In Rashila’s case too, reconciliation

organized by the caste Panchayat made this an

important condition. During couples’ mediations

organized by women’s organizations, it was clear

that reducing natal family contact was one of the

most frequent terms of arrangement during

reconciliation. Imposing this condition on a young

woman further isolates her from her natal family,

potentially exacerbating and not reducing the risk

for abuse and also underscores the tensions

between what is perceived as a problem of

modernity - women demanding greater parity in

marital negotiations and frequent contact with

their natal families, and traditional views of a

woman’s responsibilities to her husband’s family.

Retraction of Statements

While the Sessions Court Judge did not find

sufficient evidence to prosecute the accused under

the more serious charge of Section 307, he did

convict under Section 498(A) because of the

retraction of statements by the attending doctor as

well as the Judge’s belief that the accused did not

‘intend to murder’ and ‘the quarrel became

physical when the accused started boxing the

victim on her chest’. In his original statement the

attending doctor had termed the injuries

‘dangerous’ and reported that the victim’s life

would have been in imminent danger, had she not

been rescued. However during cross-examination

he retracted his statement and testified that both

injuries could have been ‘self-inflicted’. Retraction

of statements by witnesses, doctors and

investigating officers were common occurrences

for the cases reviewed and also is the case

generally for many criminal cases in India

(O’Flaherty and Sethi 2009) and unsurprising given

the length of time it took, for this particular case to

come to trial at the Sessions Court in Mumbai. This

retraction was instrumental in establishing the

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

lesser charge of grievous hurt, rather than the

more serious offence of attempt to murder.

Case Study 2

Patil V. The State of Maharashtra (Filed 1997)

The facts of the case were as follows: a twenty

three year old woman Swati had been married for

three years and lived with a two year old son, in a

joint family comprising her husband, his parents,

older brother and older sister-in-law. On the 4th of

December 1995 her mother received a phone call

from her mother-in-law saying that Swati was ‘ill

and had been taken to the hospital’. She rushed to

the hospital and found Swati dead. [The a]utopsy

report concluded that Swati had died from

organophosporus poisoning, an ingredient

commonly found in insecticides and death was

ruled not accidental. However her family, in

particular her mother was dissatisfied with the

investigation and ten months after Swati’s death

on the 27th of October 1996, Swati’s mother

requested that the police investigate her death as

‘suspicious’. The police treated this request as an

First Information Report (FIR). and arrested Swati’s

in-laws, husband and sister-in-law and seized her

Streedhan. All the accused were charge sheeted on

the 25th of February, 1997, 14 months after the

death of Swati and were booked under Sections

498(A), 306 (Aiding and abetting suicide) and IPC34

(Common Intent) to which they pleaded not guilty.

The prosecution had four witnesses –

Swati’s mother, maternal uncle, sister and the

Police Inspector who investigated the crime and

made the following arguments: Swati had a two

year old son at the time of her death and suicide

was completely out of character; secondly, her in-

laws notified her natal family only after Swati’s

death; thirdly, none of her in-laws or her husband

attended her funeral and her final rites were

performed by her parents instead of her husband,

despite Hindu norms that a married woman’s final

rites are usually performed by her husband. Swati’s

mother’s suspicions were confirmed when her in-

laws refused to respond to her questions

surrounding the event and her brother-in-law

instead taunted her by saying ‘…the amount we

spent on your daughter’s sickness we would have

had four marriages in the cost’.

Inadequacy of Evidence, Sloppy Investigation or

Judicial Bias?

In this case, the combination of a lack of

evidence and a closer examination of evidence that

was presented, poor investigation and judicial bias

led to the acquittals. While the F.I.R. says ‘…during

investigation it was transpired that that the victim

was subjected to cruelty by the accused and in-

laws and therefore committed suicide…’, it does

not identify Swati’s mother or another natal family

member as specifically to have made the

statement and this omission on the part of the

police was used by the defence lawyers as proof of

a ‘cooked-up case’. Secondly the dying declaration

was declared inadmissible on the grounds that

Swati was brought to the hospital in a semi-

conscious state and the judge rejected it on the

grounds that it would be prejudicial to the accused.

The dying declaration is a statement that the victim

records prior to her death in a hospital, in the

presence of the medical examiner, the doctor

treating the patient and an independent witness, at

a time when she is lucid. Thirdly the witnesses in

Swati’s case were deemed “interested witnesses”

and their corroborating statements were not taken

seriously by the judge.

At this point it may be worth reviewing the

record of the judge, who tried this case. Of the 787

domestic violence cases reviewed here, he tried 52,

of which he did not convict a single case (Table 1).

While this could be coincidental, one cannot help

but have misgivings regarding his views on

domestic violence if a single case brought for trial is

not deemed worthy of a conviction. The argument

in favour of judicial bias is strengthened further

given that the judge stated that the delay in the

filing of the FIR indicates that Swati’s family ‘were

angry because of Swati’s premature death and

therefore cooked-up this case against her in-laws’.

A lack of a documented history of abuse in his view

is suggestive of the absence of abuse. He pointedly

asks why Swati had ‘failed to confide in her

parents’ and pronounced that because ‘there was

no documented history of harassment’ it indicates

‘she had a happy married life’.

At no point in his judgment does he discuss

the post-mortem report and reflect on a vital piece

of evidence that Swati was, in fact three months

pregnant at the time of her death. The fact that the

prosecution also do not use this information to

build their case is mystifying. While the initial post-

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

mortem report had concluded that the ingestion of

the poison could not be accidental, during cross-

examination the medical examiner retracted his

statement and testified that the ‘ingestion of

poison could be accidental’. This inconsistency

benefited the defence who succeeded in portraying

Swati as a ‘mentally unbalanced woman’ who was

‘not a victim of harassment by her in-laws or

husband’. While the case was ruled as a suicide, no

evidence was presented to prove that Swati was

indeed ‘mentally unbalanced’. Whereas it may

appear that a documented history of abuse is

adequate to obtain a conviction, the third case

study indicates that even with extensive medical

documentation and eye witness testimonies,

judges often do not convict perpetrators.

Case Study 3

Case Study 3- Shaikh V. The State of Maharashtra

(Filed 2000)

The three accused – the husband, the mother-in-

law, and the elder sister-in-law were charged under

sections 498 (A), 306, with IPC 34. The victim

Nazma was a young woman who had died from

complications associated with severe burn injuries.

The complaint was filed by her father. The trial

papers indicated that due to a considerable

difference in living standards between the victim

and her in-laws, she was often taunted by her

mother-in-law and the eldest sister-in-law that

‘because she came from a slum she did not know

how to cook food and wash clothes properly’. They

also warned Nazma against getting pregnant

because they wanted her to establish a separate

household which her husband could not afford to

do at that time. When she reported the abuse to

her mother, she was assured using the familiar

refrain: ‘These are minor things which occur in

every house. Do not worry so much about it’

. She

often visited her parents and these turned into

longer stays when the abuse became too frequent

or severe. She had repeatedly confided in her

mother that her husband was physically violent

during fights. When she became pregnant, her in-

It is interesting to note that tropes used by families to ensure that

the marriage remains intact are very similar to the ones used by judges

to undermine brutal domestic violence. The quote here is not a

witness statement or a testimony from a deposition but the clerk’s

paraphrasing of what the mother had said to the victim which found

its way into the court documents.

laws pressurised her to abort the child, which she

refused. Subsequently they fired the domestic help

forcing her to do physically arduous work

throughout her pregnancy, resulting in her

delivering a still-born child. She recovered for a few

days at her parents’ but went back under (false)

assurances that she would not be abused.

In the weeks prior to the incident, she

missed two of her regular visits to her parents’

house. The evening of the incident she visited them

extremely upset and reported that in the previous

week her brother-in-law and sister-in-law had

jointly beaten her along with her husband. That

evening her husband came to take her back and

she returned on the assurance that they will not hit

her. The same night her mother rushed to the

hospital to find the victim with over 40% burn

injuries but conscious. She told her mother she was

beaten so badly that she lost consciousness and

when she regained sense she discovered that she

was on fire which her in-laws were trying to douse.

She struggled for a month and five days, prior to

succumbing to her injuries.

Corruption in the Criminal Justice System

It seems anomalous that in the absence of

any evidence for suicide, the case was registered

under Section 306 which is a charge of abetting a

person to commit suicide rather than Section 307

which would have been a greater charge of

attempt to murder. Technically, this should have

been an uncomplicated case; there was an

extremely well-documented medical history of

abuse including the birth of a stillborn child

brought on by forced physical labour six months

prior to her death, and ample testimonies from

parents, investigating officer and other prosecution

witnesses, as well as details of the history of abuse

including that her brother-in-law had hit her twice

and threatened to set her on fire

. One of the

prosecution’s primary witnesses, the attending

doctor, told the court that at the time of

hospitalization, the victim was lucid and gave a

statement that clearly implicated her husband and

in-laws. The landlord confirmed that she had been

burnt at her home and the investigating officer

testified that the victim had told him that her

There are many studies that have established that between

domestic violence causes negative reproductive health outcomes for

women as well as increased risks of contracting infections such as

HIV/AIDS and other STIs (Diop-Sidibe et al 2006; Heise et al 1994;

Sinha et al 2012).

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

husband and in-laws subjected her to “mental

cruelty” using the Marathi word tras (trouble) to

describe her ordeal.

The judge ruled that the statements of the

medical examiner and the investigating officer

contradicted each other because while the medical

examiner confirmed that the victim had been

physically abused by her husband and in-laws, the

investigating officer reported that they inflicted

mental cruelty on her and he declared them

inadmissible. It was his opinion that the fights and

quarrels constituted ‘minor wear and tear of family

life and were not serious enough to invite the

rigours of section 498(A)’ and called the parents

‘interested witnesses’ on whose testimonies he

could not convict. The judge drew an artificial

difference between emotional abuse and physical

abuse; it is obvious that physical abuse naturally

involves emotional abuse while emotional abuse

may not involve physical violence, but may have a

physiological impact on victims. Insisting that

Nazma abort her baby and forcing her to do

physically arduous tasks during her pregnancy

constitute both physical and mental abuse and not

‘minor wear and tear on family life’, as the judge

would lead us to believe, in his attempts to

normalize violence

. Though speculative, it is likely

that Nazma’s family’s financial disadvantage and

the perpetrators’ economic advantage played a

role in the procurement of lawyers as well as the

subsequent judgement in this case

Case Study 4

Case study 4- Bhujbal V. The State of Maharashtra

(Filed 1999)

The fourth example is presented to demonstrate

that a few judges prosecute and convict family

members under Section 498(A) despite little

medical evidence. These judges demonstrate a

nuanced understanding of the structural, economic

The normalizing of violence and the avoidance of violence

attributions has been studied in-depth in the study of light sentences

of sex offenders in Canada by Macmartin and Wood (2005). The study

found that violent attributions were used rarely and sexual

explanations were preponderant, despite consensus among forensic

experts that sexual assaults are largely the result of power differentials

between perpetrators and victims and are not crimes of passion.

Corruption in the Judiciary has been widely reported in Indian and

international media. Transparency International in its most recent

report has also indicated that judicial corruption in India is common.

http://www.transparencyindia.org

and social constraints that female victims of

domestic violence often encounter which

perpetuates a culture of silence discouraging them

from discussing these matters with even close

family members or friends. An illustration of this

understanding can be seen in the verdict of Bhujbal

V. The State of Maharashtra. In this case the victim,

a garbage collector had committed suicide unable

to endure the daily beatings her husband subjected

her to. Further her husband had remarried,

without divorcing her (illegal under the Hindu

Marriage Act) and she was subjected to emotional

abuse by his second wife. They were booked under

Sections 498(A), 306 and IPC 34.

Judge Basu used the following rationale to justify

her decision

‘It has also been brought on record that

Sanjeevani the deceased was not taken to any

doctor for treatment after accused number

one, the husband assaulted her. On the basis

of this evidence the lead advocate for the

accused argued that the oral evidence of all

these witnesses cannot be relied on in the

absence of any documentary evidence. I do not

agree that only because there is no medical

evidence, oral evidence of all these witnesses

which is clinching evidence can be

discarded (italicized for emphasis). The

evidence of these witnesses shows that they

were hopeful that the relations between

accused number one and the deceased… would

improve and therefore might not have thought

it necessary to lodge in police

complaints. Similarly as stated above deceased

and witnesses (are) from poorer strata of

society and it might not have occurred to

witnesses or the deceased to take treatment

for assault. Further the fact that both accused

stayed at home while Sanjeevani [the

deceased] worked for 12 hours can be

constituted as mental harassment. There is no

absolute standard of cruelty irrespective of

persons concerned. What is to be seen,

examined and considered is whether with

references to the man and the woman

concerned, considering the circumstances,

patterns of life, background, behaviour, and

other factors, it would be cruelty in their

case. The standard is individual and specific, so

far as they are concerned. Naturally the

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

consequences would therefore be that no

formal straitjacket regarding the standard of

the cruelty can be laid down’.

Judge Basu convicted the accused under all

three charges. In addition to her astute reasoning,

she used the precedent of Laxman Irayya Yengati V.

The State of Maharashtra

This verdict highlights a number of important

issues: firstly an acknowledgement that there is no

absolute scale of cruelty; secondly, the presence of

medical documentation is not critical for conviction

if other supporting evidence such as witness

testimonies are available; thirdly there appears to

be great latitude in the classification of ‘interested

witnesses’, extent of documentation required to

establish abuse and the impact of judges’ personal

views on the degree of seriousness with which

domestic violence is treated

. Judge Basu had a

conviction record of greater than 50% of all

domestic violence cases involving murder or

abetment to suicide and contributed to more than

33% of the total convictions for 1998-2004 (Table

2). She and Judge L Rao were exceptions to the

pattern of convictions obtained for domestic

violence cases that were reviewed in this study.

5.0 Statistical Impacts of Normalising Domestic

Violence

So far we have focussed on the discursive

processes by which domestic violence becomes

normalised. Naturally, the subjective constitution

of serious domestic violence also has large

statistical impacts. Table 1 highlights disparities in

the conviction rates of judges, clearly

demonstrating that the majority of judges are

disinclined to convict. There is great variability in

judges’ conviction records with some acquitting all

the cases brought for trial.

The judge in this case (1989) said "Wife is not a chattel to be beaten

at whim and caprice of the husband. The beating by the husband to his

wife cannot be undermined and ignored. It is not necessary for

proving cruelty that there must be many incidents of beating. Proof of

some incidence is more than sufficient to prove physical cruelty”.

Indeed my own experiences with women in a slum community

indicate that often abused women do not even confide in their parents

or their siblings, rarely seek medical assistance for their injuries and

unless dowry harassment is involved, do not report their husbands or

in-laws to the police.

Table 1- Judges’ records of convictions (for cases

disposed by 2005)

All names anonymised

Names

Judges

Total

(n)

Acquittals

(n)

Convictions

(n)

Convicted

(%)

Abc

Def

11.02%

Ghi

Klm

8.88%

Nop

4.26%

Qrs

32.25%

Tuv

Wxy

9.09

Zab

Cde

0**

Fgh

50%**

Ijk

5.80%

Lmn

Opq

Rst

Uww

6.45%

Xyz

8.69%

Cba

Fed

100**

Ihg

3.57

Lkj

Onm

2.94

Rqp

Uts

4.76

Xwv

Azy

Bdf

Hjl

Npr

100**

Tvw

36.5

Adg

Hkn

Oru

45%**

Psw

Qtw

100%**

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

Total

787

693

11.94%

** indicates sample sizes too small to draw any

inference.

Table 2- Convictions Disaggregated By Type Of

Charge

Section

No.

% of

total

cases

Acquittal

Conviction

498(A)

637

81%

94%

498(A) and

302 (Murder)

61%

39%

498(A) and

306(Abetment

to Suicide)

65%

35%

498(A) and 34

(Common

Intent)

0.10%

100%

498(A) and

324

(Voluntarily

causing hurt

by dangerous

weapons or

means)

0.10%

100%

498 A and 304

(Dowry

Harassment)

1.50%

83%

17%

498 A and 120

(Criminal

Conspiracy)

0.50%

25%

75%

498 A and 307

(Attempt to

Murder)

0.40%

100%

Total

787

Table 2 indicates that the average

conviction rate for domestic violence when murder

or suicide is uninvolved is a low of 6 %. Table 3

underscores the lengthy durations to resolve cases

with just 7 % of cases resolved within two years, 34

% resolved between nine to 11 years and nearly a

quarter resolved in 12 to 14 years. The impacts of

such low conviction rates are multiple: firstly it

denies justice to victims of domestic violence,

secondly it perpetuates the notion that the

majority of domestic violence cases brought to the

attention of the courts are spurious and thirdly by

not convicting perpetrators it sends the signal that

it is possible to get away with abusing and

murdering wives

Table 3 – Time taken for Cases to be resolved

Sectio

0-2

yrs

(%)

3-5

yrs

(%)

6-8

yrs

(%)

9 -

yrs

(%)

12-

yrs

(%)

15 or

yrs

(%)

Total

498 (A)

637

498

(A) and

302

498 (A)

and

306

498 (A)

and

134

100

498 (A)

and

324

498 (A)

and

304

498 (A)

and

120

498 (A)

and

307

7.0 Conclusion

The large disparities in conviction rates

observed in this study cannot be explained as

natural statistical errors in the distribution. One

must then examine the discursive archives as well

as legal processes to explain this phenomenon. A

close reading of the discourses advanced during

domestic violence trials reveals that the laws

The notion that women ‘misuse’ Section 498(A) to extract hefty

alimonies from husbands and settle scores with in-laws is widely

prevalent both within and outside of the Judiciary. In fact in a

consultative exercise included as part of the 2012 Law Commission

Report, 100 of the 244 Judicial Officers consulted (including police

officers, Registrars and Directors of Judicial Academies and Officers

suggested it should be made a bailable offence. There is no evidence

to indicate that there is widespread abuse of this law and in fact a

recent study by Oxfam in Odisha conclusively established this to be

untrue. Justice Reddi the author of the reported that there was no

empirical data to suggest that Section 498 (A) is abused and laid out

some recommendations to prevent its misuse. While it cannot be

ruled out that a very tiny minority may misuse this law (or any other

law for that matter), nationally the poor conviction rates present a

dismal picture. Although interesting, a detailed discussion of this issues

is beyond the scope of this paper and will be discussed elsewhere.

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Sreeparna Chattopadhyay

cannot be independent forces for change in a

context where most judges and lawyers display a

woeful lack of understanding of the inequities

inherent in gendered power relations. In fact a

recent Law Commission of India report has

revealed that the Delhi and Madras High Courts

have issued orders to the police to delay filing

F.I.R.s (unless there are ‘visible injuries’) until such

time that the ‘preliminary investigation is done and

reconciliation process is completed’

. This is both

deeply disappointing and alarming suggesting that

despite the lack of conclusive data on its misuse,

some judges and courts have pre-decided that

women are abusing this law and their desire to

keep the marital family intact supersedes their

desire to ensure justice for victimised women. This

is in no small part due to the pressures from Men’s

Rights Organizations as well as political parties

which are wedded to regressive and patriarchal

ideas of the Indian family

. This experience and

expediency based law-making carries several risks:

firstly a focus on injuries that are ‘visible’ thus

precluding any violence that is not immediately

physically evident, the risk of being constitutionally

unsound by transforming a non-bailable offence

into a bailable one and the suggestion that F.I.R.s

be delayed until reconciliation is completed,

presumes that reconciliation is both desirable and

possible. The matter is currently under

consideration by a sub-bench of the Supreme Court

which has taken a different view on this issue. The

future of 498(A) as well as the 2006 Protection of

Women from Domestic Violence Act hinges on this

decision

In conclusion, using the frameworks of the

Dynamic Court and the Constrained Court as well

as a critical and feminist analysis of legal discourse,

I delineate processes and deconstruct discourses

that can shed light on the reasons for the low and

highly variable conviction rates for domestic

violence. Legal rhetoric and language are

strategically deployed to systematically efface

Reddi 2012:42

Recently the Minister for Women and Child Ministry gave reasons

for why marital rape could not be criminalized in India including

poverty, illiteracy and sanctity of marriage in India:

http://www.thehindu.com/features/metroplus/woman-

uninterrupted-the-marital-rape-debate/article8370439.ece

Although more inclusive in its formulation, the PWDA has not

brought a reduction in domestic violence cases though the new law

has become an alternative for primarily urban victims of domestic

violence (Ghosh and Choudhuri, 2011; Ghosh, 2011).

women’s claims of violence and to minimise

brutality. Unlike other acts of violence, the extent

of criminality involved in domestic violence

continues to be contested within courts. While it is

possible for courts to be agents of social reform

and to deliver justice, unless the element of

violence within domestic violence is made salient

and treated with the appropriate degree of

seriousness, this will be difficult to accomplish. The

findings from this study present a very troubling

picture for gender-justice in India.

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Meghana Geethadevi

In 1986, major amendments were introduced to the Indian penal law, in which two new sections were added to the penal code. These sections made violence leading to murder of women within 7 years of marriage, as well as harassment by a husband or his relatives leading to suicide, punishable. At the same time, the Indian Evidence Act was also amended, shifting the burden of proof for such deaths on the accused, which meant that, contrary to normal practice, the husband and his family would be presumed guilty unless proven innocent. Despite such amendments, the Vimochana, a leading voluntary organization working on cases of domestic violence in Bangalore, indicates that the number of cases registered by the police and eventually punished by the courts has not increased. It seems to have only discredited the legal process as an ineffective method of protecting weak citizens within the democratic framework. According to the Vimochana, this may be because every stage of the recording and investigation of an incident of domestic violence, even when it leads to death is poorly handled. This paper presents the experiences of the Vimochana, which show how the law, courts, and police fail victims of domestic violence in the region. Moreover, it provides recommended strategies on addressing this issue.

Domestic Violence as a Public Issue: A review of Responses

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