10 Family & Law, Patriarchy and Violence in Domestic Space

Ms .Priyanka Adhikari

Contents of this Unit

1.  Family and Structures of Patriarchy

1.1 Patriarchy

1.2 Patriarchy and Power Relation within Family

2.  Violence in Domestic Space

2.1 Domestic Violence takes Place in Various Forms

2.2 Dowry Death

2.3 Cruelty by Husband and Husband’s Relatives

2.4 Husband or Relative of Husband of a Woman Subjecting Her to Cruelty

2.5 Protection of Women from Domestic Violence Act 2005

1. Family and Structures of Patriarchy

A human family refers to a group of people who share a bond that are associated by a web of relationship through values, emotions and shared experiences. This unit not necessarily has to be united through blood line but through common socializations also. In other words, family is a unit where its members are economically and socially dependent on each other and share common ideas and values and provide love, care and support by both biological and conjugal line. Bronislow Malinowski defined family as a bounded set of people who recognizes each other and can be differentiated from other groups in a definite social space. The concept of family which challenged Malinowski’s idea of family is that family is a group which comprises of a woman and her dependent children, and at least a man connected in the course of marriage or blood relation. Feminist anthropologists argued that mother child bond or the entity of couple and children is present in every society but Malinowski’s features of a family may not be universal.

It is a well known fact that anthropological discourse had been engaged with the debates and talked about diffusion of structures of human family. Discovery of classification of kinship terminologies and ethnographic account of kinship practices on one hand and on the other hand, the evidence of mother-goddess cult in many modern and historical societies has helped scholars to conceive the idea of a universal stage of mother-right prior to the stage of father-right in human evolution enroute for perhaps civilized form of conjugal family seen in the advanced western societies.

Gerda Lerner has talked about the mechanism through which family reinforces a hierarchical structure where patriarchal values are constantly practiced. Patriarchal values in this way is regulated and exercised through generation after generation by socializing them. The first question that pops in our mind at the time of birth of a child is ‘boy or girl?’ and gender roles are assigned to the child based on its gender by agencies of socialization. If it is a boy, he gradually tries to imitate the male member of the family especially his father and by imitating him, he learns to be dominating by seeing his father’s ruling status in the family. On the other hand, the girl socializes herself with caring, nurturing, loving, and submissive mother/ females. These gender stereotypes are not only the socially constructed categories but they are also embodied by both men and women. According to the prescribed roles, men are the responsible agencies of societies to earn and look after the family while women are given the responsibilities with domestic work including raising children and the other family members. These stereotypes of masculinity1 and femininity highlight discrimination against women and violence and injustices. Although this binary nature of public and private sphere is defined by gender, women now exercise and enjoy the public domain in terms of economic and educational gain and other purposes. It is also important to emphasize that the archaic gender role expectations are still subtly present in our society. Women are systematically disadvantaged and discriminated against occupation, education, nutrition and subjected to various forms of violence: domestic violence, dowry death, rape, sexual harassment, sexual abuse, physical abuse, female foeticide, infanticide, witch killing and so on.

Quoting Margaret Mead to make the statement more logical, “men may cook, or weave, or dress dolls or hunt hummingbirds, but if such societies are appropriate occupations for men, then the whole society, men and women alike, votes them as important”. When the same occupations are performed by women, they are as less important (p. 168). Mostly, roles which are not confined to women have been given higher status, no matter whatever roles are and for whatsoever cultural explanations are given high status in society- are combined with males. A contemporary example can be a good description to facilitate the situation prevailing in societies. Although the concept of being in higher position of science students than students of arts or humanities is changing, even today, a science student is given higher status in society than a student of humanities. If the upper status of academic hierarchy is filled by boys then the scienctific community is undoubtedly biased as most science students are boys. Even if there are contemporary modern societies giving equal opportunity in economic sector for men and women, it could not possibly be considered as equality because women not only perform maternal roles but also participate in financial endovers. As a matter of fact, working both inside home and outside makes women spend working hours to a great extent than do men. Labor or task, therefore, has been seen as largely male in some societies and female in others.

1.1 Patriarchy

The term, ‘patriarchy’ was first introduced in the 19th century kinship studies. If we break the word into two syllable it appears as ‘patri’= pater (father) + ‘archy’= rule. The term patriarchy suggests a family which is ruled by the father. Patriarchy is a socially constructed idea of male having power and superior position over women. As a matter of fact, the concept of patriarchy is developed on the idea of a hierarchical power relation where women are under control of men in all spheres of life. It conform the so-called ideas of masculine and feminine traits which sanctions unequal power relation between men and women. Subjugation of women, therefore, a ubiquitous phenomenon across globe but nature of controlling and oppressing women is different from one society to another, in different class, caste, religion, landscapes, ethnicity and socio-cultural practices. Similarly, patriarchy is practiced diversely in developed countries as compared to developing countries. In Indian panorama, patriarchy among dalit, brahminical, indigenous people differ from one another. Despite the different ways of exercising patriarchy among different cultures, the foundational factor of patriarchy is same everywhere i.e., to rule over women.

Sylvia Walby in her “theorizing patriarchy, has defined patriarchy as “a system of social structures and practices in which men dominate, oppress and exploit women” (Sylvia 1990). She used the term ‘social structure’ to decline the biological determinism which says that men and women are assigned to different gender roles based on their biology. According to Sylvia Walby, the ‘system of patriarchy’ is formed by six main pillars that influence women’s lives. These pillars are:

1. Inequality in household labor – domestic work is not considered as it should be acknowledged as labor. Household activities and looking after children is expropriated by husband and the family.
2. Unequal paid labor- labor market discriminate women with lower wage payment in comparison to men. Not only is there a disparity in labor market but women are also isolated in less skilled profession.
3. The state- state plays a crucial role in creating inequality among men and women in its political priorities. In Indian context first female Lok Sabha speaker is Smt. Meira Kumae in the 14th Lok Sabha for the period of 2009 to m2014
4. Violence by men – violence against women is indeed the manifestation of unequal power distribution between two genders. Women experience and routinely suffer from male violence.
5. Patriarchal relations in sexuality – patriarchy dictates to practice heterosexuality.
6. Patriarchal socio-cultural institution – institutions like family, religion and in fact state represents patriarchal rule over women. These representations influence women identities and demands acceptable standards of conduct and action (Giddens 2006: 473).

1.2 patriarchy and power relation within family

Female sexuality and reproduction in the context of power relation and subordination of women which, according to Michel Foucault, is important as they put up with cultural meaning of normal and abnormal behavior that governs people’s idea about their body. According to Foucault, “body is the focal point of the struggle over the shape of power”. It depicts the presence of power at dispersed levels like family, educational institution, hospital and so on but he did not talk about the implementation of power over body. He missed that the part of normalization of women oppression is being performed by everyday patriarchal norms. Susan Bordo has portrayed the beautification of woman and her bodily exposure. Many women undergo surgery in order to bring the best beauty out of them and that beauty is defined by men. Women submit themselves to the power of masculinity by undertaking such surgical procedures. This idea of submission to men is also found in Indian historical text. Manusmriti views an ideal woman with the idea of a good daughter, ideal wife, and lovable mother. According to Manusmriti, a woman’s life revolves around men only. She is a daughter of her father, wife to her husband and mother to her son. Although this image and status of women altered while obtaining ideas drawn from tradition and modernity, the basis of women oppression persists. Partha Chatterjee (1999) has acknowledged the inconsistent situation of Indian women at the time of freedom movements. Women were highlighted in public domain during this time. Despite women’s exposure in modern world and their engagement in some non-stereotypical work, their private lives were maintained as well.

2. Violence in domestic space

In Indian mythology, the idyllic womanhood symbolizes by Sita is one of chastised, transparent, gentle, affectionate, loving, honest, truthful which can neither be demolished or agitated by anyone nor by her husband’s denial and condemnation. She tried to defy these set of norms by confronting her husband for his behavior which is criticized by the society and the state of course. In fact, state creates woman by composing differences among them i.e., women may be treated with different law and policy based on their religious identities or categories of “good” and “bad” like housewives and prostitutes and normal and atypical (Sunder Rajan 2003: 22). This theory applies when a wife chooses to split the customary bondage and leaves the social sanctity, she becomes a deviant character in the eye of society.

The country, which has witnessed a woman as a Prime Minister and reelected for the same administrative position has also witnessed merciless death of a female fetus because of its gender. It is a harsh reality that when our country propagates women empowerment, it also subjects women to abuse in this male dominated society. She is confined to exercise her freedom as a human being and is regarded as a commodity. The status of women in our country is overall assigned by men be in private or public domain. Being taken the superior position in society, men disseminate their power through ruling over on the other gender i.e., women. It is a form of aggressive behavior generally in interpersonal interaction or relation. Since men are the ruling category, they endorse their social position of committing violence against women. Violence, as a result, is the exercise of power that delineates the very fact of gender inequality2 and patriarchal socially sanctioned rules. Having considered the definition of violence by WHO (World Health Organization), “the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, which either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation”. Who considered the fact of using power which makes this definition more convenient because it broadens the conventional and common meaning worldwide? Violence in domestic sphere, therefore, is manifested in family by the superior to the inferior. Violence against women was first acknowledged as an area under discussion in the World Human Rights Conference organized in Vienna in 1993 and was recognized as a human rights violation. Meanwhile, United Nations declaration identified violence against women as “any act of gender-based violence that results in, or is likely to result in physical, sexual or psychological harm or suffering to a woman, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”. This section particularly focuses on violence in domestic spaces.

Meaning of domestic violence can be defined within a broad spectrum and shaped by the varied repercussion. Domestic violence covers a whole range of violence from spousal violence to violence committed by family members. Violence against women to Malvika Karlekar is manifestation of power through asymmetrical gender relations in society. Malvika Karlekar is the editor of the Indian Journal of Gender Studies, a consultant for the centre for Women’s Development Studies (CWDS), New Delhi. She is a woman who has reached great heights in India and the World over. Such asymmetrical gender relations often developed as a device to socialize the members of the family with given norms of behavior from the standpoint of male control. Domestic violence is defined as form of violent actions perpetrated by family against one of its affiliates or individuals that intimidates and terrorizes the life of the individual and affects physical, psychological dignity and liberty (Anthony and Miller, citer in Adriana Gomez, 1996). Violence in domestic spaces thereby includes abuse, assault, torment, cruelty, physical harm, harassment and so on. By physical harm it intended an attempt to situate a spouse in fear of threat and injury and make the spouse to forcefully engage in any act or conduct either sexual or the other through abstinence by the spouse. There are multiple underlying causes which play major roles in occurrence of violence in domestic sphere.

2.1 Domestic violence takes place in various forms

Types of violence in domestic space under Indian penal code and act:

1. Dowry death (section 304b of ipc)
2. Cruelty by husbands and relatives (section 498a)
3. Dowry prohibition act 1961
4. The protection of women from domestic violence act 2005

2.2 Dowry death

Dowry death and bride burning3 are the cases which one can find in every corner of Indian society. By definition, dowry death connotes death of a young married woman by hanging, physical injury, burning or any other unnatural stroke of attack following dowry harassment issues committed by her husband and in-laws when she or her maternal family fails to fulfill their forced demands in terms of kind or money. Dowry refers to transmitting property from the bride’s family to that of bridegroom during marriage (Negi, 1997: 14). The cultural practice of yielding and receiving dowry has been a part of Indian culture, especially among Hindus, for a long period of time. The recent practice of dowry system suggests that dowry basically comprises of material gift and currency to the bridegroom and his family as a prerequisite for the marriage. Dowry is carried out even after marriage (Paul 1986). Dowry in the name of gifts is provided to the husband’s family during pregnancy related rituals, childbirth, initiation ceremonies and so on. Bestowing gifts therefore, does not always remain as a symbol of affection from parents to their daughter but sometimes an act to fulfill the demand from the husband’s family.

The essentials of dowry consist of the gifts for the brides in terms of expensive jewelries, garments, additional goods like refrigerator, household equipments and sometimes vehicles and the list just goes on. Whenever such demanded items are not supplied by the bride’s family, the bride begins to be subjected to violence by her marital family. The level of torment to the woman leads to fatal accident like burning the woman alive. Section 304b4 IPC provides sentences with a term of not less than seven years, but could lead to life imprisonment as well.

The dowry prohibition acts were promoted in 1984 and 1986. In late 70s at the time of second phase of women movement in India, dowry related crimes came into notice which was shown to be suicides or accidents. Problems associated with dowry were always regarded as family issues and the matter of dowry murders were thought to be a case of suicide. The legal ignorance have led to the increasing number of such lethal instances and at this juncture it is essential to address the issue seriously. The dowry prohibition act which was introduced in 1961 which prohibits giving and accepting of a dowry, “as consideration for marriage”. Under this act, punishment for yielding, demanding or receiving dowry is imprisonment of upto six months or a fine up to Rs. 5000. The act however, had many loopholes. Having been in pressure from women group, this act was amended in 1980 for the first time and then in 1986 once again with the penalty of Rs. 15000 and the crime became non-bailable. However, the 1984 and 1986 acts were as negligible as 1961 act per se. Malvika Karlekar continued with the remark that the asymmetrical structure of families result in demanding dowry in forms of gift or cash from bride’s family reinforces disparity.

2.3 Cruelty by husband and husband’s relatives Section 498a of the Indian Penalty Code was introduced to combat domestic violence and protection of women from dowry harassment.

2.4. Husband or relative of husband of a woman subjecting her to cruelty

Anyone, whetherthe husband or the relative of the husband of a woman commits cruelty to the woman shall be penalized with imprisonment for a period of time which may make longer and shall also be responsible for fine. This section is cognizable5, non-bialable6, non-compoundable7 offence.

In this legal context, cruelty defines a pleasure in tormenting that can compel a woman to commit suicide or cause her severe injury or collapses her life in great danger and affects her physical and psychological health. In other words, “harassment of a 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 meet such demand.” This section, therefore, can be evaluated with four types of malicious acts:

1. Any action which compels a married woman to commit suicide.
2. Any act which is prone to cause severe injury to the life of a woman and affects her physical and psychological health.
3. Intend to harass the woman in order to fetch some property or cash or some material objects from her maternal family.
4. Finally, subjects the women to torment when her maternal family or relatives either fail to fulfill the demand for more cash or not giving some property share.

2.5 Protection of women from domestic violence act 2005 no. 43 seeks to protecting women victims of any kind of violence that occur within the family or household. It was addressed by the government of India in October, 2006. The act was permitted by the parliament and acknowledged by the president on 13th of September, 2005.this act facilitates anyone who considers that the person has been subjected to any incident of domestic act can file a complaint to a protection officer. In other words, “any woman who is, or has been, in a domestic relationship” with the man being accused of perpetrating the violence- which means wives, female live-in partners, sisters, widows or mothers. Even relatives of the man can be listed as “accused” in the case. In this context, a protection officer is who, appointed by the state government and take testimony of the event and reports to the magistrate and the police. Protection officer also plays an important role in undertaking the guarantee of woman getting legal help, medical help, shelter, economic support and any other help if necessary.

One of the crucial factors of domestic violence is associated with dowry. Such violence is not only represents undermine status of a woman in her marital family but in her maternal home too. In Indian context, once a girl is married, she becomes an outsider to her natal household which supports the idea of rejection to get sympathy and support from her maternal home when she undergoes physical and emotional pain cause by her marital family. Kanyadan, an Indian tradition of giving away of bride by father is practiced and dowry is given, therefore, there is no question of looking back as the bride now belongs to her husband’s family.

To conclude it would be inappropriate if Hindu code bill is not acknowledged where women rights were introduced. During 1955 and 1956, the Hindu code bill was anticipated by Dr. Ambedkar’s in the parliament which highlighted the women’s right to property. The marriage institution was completely interpreted with more dynamic changes for example, inter-caste and gotra marriage restrictions were wiped out, tradition of polygamy was eradicated and divorce was announced.