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A crisis within a crisis: Domestic violence during Covid-19

Post by on Wednesday, July 7, 2021

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Since the COVID-19 pandemic broke out in 2020, a sharp increase in the domestic violence cases was witnessed across the world and Kashmir was no exception. United Nations in November 2020, taking a notice of the rising violence against women and girls amid the pandemic, called it ‘The shadow Pandemic’.
We at Rising Kashmir spoke to Advocate Shefan Jahan Gazi, a practicing lawyer at Jammu and Kashmir High Court and asked her about various issues concerning domestic violence.
1.    What is domestic violence (DV) and what are its various forms?
Domestic violence is a very broad term or otherwise a generalized expression for all deliberate and intentional omissions or acts of physical, psychological or even sexual violence that can cause psychological trauma or physical injury to the victim. In aggravated circumstances there may even be a likelihood of death. The term also includes economic deprivation, where a victim fights for sustenance in the household. Such acts are committed on a victim by the family members such as the husband. In other circumstances, the act is committed by an intimate partner, while a couple is residing together.
Traditionally domestic violence is associated with acts of violence against a woman by her husband. In rare cases, the vice-versa is also true but such cases are very less and hardly reported because of the prevalent patriarchal system of our society; where men are considered to be in a dominating position. Such cases may arise due to poor physical health and economic condition of the male. Surely men do not report such issues for the fear of being laughed at. Elderly men also face domestic abuse often at the hands of their daughter-in-laws. The differently abled or physically challenged may also become a victim of domestic violence.
FORMS OF DOMESTIC VIOLENCE: - Domestic Violence can be of various forms. It may be physical, psychological or even economic where an aggrieved person is dependent on the aggressor.
Threats of physical or sexual violence, assault in an inebriated state or intimidation of physical violence to children, emotional abuse, continuous aggressive behavior, blocking economic resources by refusing to pay for household expenses or the expenses incurred on the children, refusal to pay for medical bills, etc.; forcibly removing children from the custody, forcing the wife to undergo abortion, threats to terminate the relationship, secluding the victim and/or forcing her to commit suicide are certain examples of domestic violence.
2.    What has been the impact of the COVID-19 pandemic on DV?
Pandemic is a crisis undoubtedly but we are witnessing a crisis within a crisis. One year before the pandemic broke out post 5th of August 2019 we were completely shut out from our routine activities. The lower strata of the society who were labourers, daily wage earners or those earning their livelihood in the unorganised private sector were either laid off or had no work to do. Consequently there was no family income. Such frustrations often find expression through violence. The COVID-19 induced Confinement only added to that emotional trauma. Whereas the cases of domestic violence increased manifold during these two years, but there is another side to it. The victims were not able to seek redressal due to the closure of courts and not many victims know about the domestic violence hotlines that were established to counsel such victims.
The effect of the pandemic and economic instability is not confined to just the lower strata. Everyone and all have been suffering as earnings have drastically dropped. People, including children, have been emotionally caged and are unable to vent out their feelings freely. Pandemic, I would say is an 'energy trap' which has by and large made us unproductive and overstressed affecting our mental balance. It has exacerbated our financial circumstances and reduced or rather restricted our earning capacity. Unemployment is a critical factor in assessing cases of domestic violence.
In general women are discouraged by their family members and friends to file such complaints of domestic violence which sometimes become fatal and result in the death of the victim, Otherwise there is a surge in domestic violence cases. Even against children, there have been reported cases of physical abuse. The mother in order to protect her children often faces the brunt of the whole situation.
I receive phone calls from such women who find the situation very taxing. It's difficult for them to make ends meet as they can’t even do small odd jobs and support their families. The educated women, for the sake of family honor and to save their marriage, prefer to bear everything in silence or simply they just want to walk out of the relationship.
3.    Have DV cases surged in Kashmir?
The J&K State Commission for the Protection of the Rights of Women and Children was established in the year 1999 by an Act. The main aim of this Commission was to ameliorate the condition of the women victims; to investigate and examine the cases of excesses against such women in accordance with the principles of international law regarding the rights of the women and within the parameters of the guarantees enshrined in the Indian Constitution that was also read with the erstwhile constitution of J&K which had similar provisions.
Furthermore, we do not have the culture of NGOs taking up such causes either due to societal indifference or due to patriarchal norms. The State Women’s Commission (SCPWCR) was a resort of hope for such victims. Only a few NGOs are active in this field and they also provide succor to such destitute women. However, they do not actively take up cases of physical/domestic abuse against women. We have not seen such activity by them. Their activity in this aspect of women's rights has in fact been either none or quite minimal.
Courts are already heavily burdened and adversarial systems of advocacy are not just expensive but time-consuming also.
The Commission had a huge cache of litigation arising out of matrimonial disputes. Its role was more recommendatory in nature. So, its approach was redressal through reconciliation. However there were matters which needed coercive action but the Women's Commission was a toothless tiger for such cases; but it goes without saying and without an iota of doubt that this forum was a meaningful source of redressal of women’s issues.
After J&K Reorganization Act of 2019 the State Commission for Protection of Women and Child Rights or as briefly mentioned the State Women’s Commission was abolished by the order of 23rd October 2019. The National Commission for Women took over thenceforth. All the cases that were pending before the State Women’s Commission were referred to the National Commission for Women.
The Commission held a hearing in the month of Feb 2020. It adjudicated some cases but some cases out of the existing thousands of cases are not much. The files of the new cases  have to be sent to the National Commission for Women  which is located at New Delhi, it’s not only cumbersome but has put redressal beyond and away from  the suffering women. Admittedly the State Commission for Women was an effective alternate redressal forum which doesn’t exist anymore.  I would also go to this extent to say that it was a powerful voice for the victims and even now I strongly advocate its existence rather than its dismemberment.
4.   How to file a complaint against domestic violence?
A petition or an application is to be filed through a lawyer before the judicial magistrate within whose jurisdiction the act of domestic violence has been committed or where such victim lives either temporarily or permanently. Domestic Violence Act itself does not mean a criminal proceeding but the court when it applies its mind to the circumstances that are enumerated in the pleadings can classify the case whether it will be treated as a civil case or a criminal complaint.
With regard to the practical difficulties that such cases face in the courts, I would say that the adversarial system of adjudication in the courts drags on the proceedings, when counter cases are filed, when appeals or even revisions are filed which may be genuine or they may not be genuine but thereby the victim is rendered helpless till such time of final adjudication. It even makes differences between the contesting parties very unbridgeable where there are chances of reconciliation between the two parties, but since the litigation keeps dragging on those differences become barely irreconcilable.
There is Family Courts Act of 1984 that stipulates the establishment of family court in every district that is to be presided over by a sessions judge. Recently a family court was also established in Kashmir in Srinagar district but because of the pandemic we could not go for the physical hearings in such cases. So, we are yet to see what difference its functioning is going to have on the overall cases of matrimonial disputes. Though I would say that it’s going to be overburdened with the caseload and pragmatically an overstressed judicial officer cannot be expected to be efficacious in speedy delivery of justice either. Seemingly the law is there but the spirit appears to be missing.
5.      When you say the counter cases, appeals, or revisions in such cases may or may not be genuine, do you mean to say that the DV law is misused?
See, we have to look at the aims and objectives of the Act. The DV Act was enacted to assist women in particular and all such victims suffering the agony of various forms of domestic violence. Therefore it's a beneficial and a welfare law. However, there is always a scope for misuse of any law.
6.    What are the types of redressal one can seek under the Domestic Violence Act?
There are various types of redressal that the aggrieved can seek. When a petition is admitted under section 12 of the Domestic Violence Act the judicial officer seeks a report of the domestic violence incident and after he/she has obtained such a report an order for maintenance compensation or damages can be passed in favor of the aggrieved person.
Under section 18, if the magistrate is satisfied that the woman has suffered such domestic violence he / she may pass Protection Orders in favor of the aggrieved person and restrain the respondent from committing any act of domestic violence aiding or abetting in the commission of any such acts of domestic violence. Even entering the place of employment or any such place that is being visited or frequented by the aggrieved person can be restrained, if the court feels satisfied. The court may also restrain any attempt to communicate with the aggrieved.
Under the section the court may restrain the respondent from selling off the assets or operating bank lockers or accounts that were previously used or held jointly by the parties.  The court may also restrict such a respondent and all his relatives from causing any violence to the dependents of the aggrieved person.
Under Section 19, the judicial officer can order the respondent to allow the aggrieved person/woman to reside in the shared household if she has an existing domestic relationship. She may or may not have title or interest in such property. The Magistrate can even restrain the respondent or his relatives from entering such property or order an alternate residence for the aggrieved.
Under section 20, there are various monetary reliefs that can be ordered in favor of the aggrieved including maintenance, medical expenses or loss of earnings.
Under section 21, the magistrate can grant temporary custody child or children to the aggrieved person.
Under section 22, magistrate may pass an order directing the respondent to pay Compensation and damages for injuries, mental agony and distress caused by the domestic violence committed by the respondent.
All these civil reliefs have been clubbed in the DV Act so as to avoid multiple litigations and assist in providing relief to the aggrieved women.

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