india

Updated: Nov 03, 2019 06:41 IST

The 21-year-old resident of a Delhi shelter home fits a few statistical categories of the 2015-16 National Family Health Survey (NFHS) report. For instance, she is among 36.3% of women who have never married, live in a city and have enough freedom of movement to visit a health facility. But she does not fit the cohort that agreeswivesare entitled to refuse intercourse. For one, she is not married. Furthermore, her consent was never sought.

At 18, she began living with a man a few years older than her. Earlier this year, she succeeded in escaping from him. “There is not a single house that we have lived in where the walls and floor haven’t been streaked with my blood,” she said. “He used different vessels for different parts of my body: the cooker for my head, frying pan for my torso, belan (rolling pin) for my elbows. He would make me stand and point my elbows out and then he hit me. If I moved my arm, he’d hit me more. He wanted to see that I was remorseful for whatever he was punishing me for,” she said.

When she first reached Delhi-based shelter home Shakti Shalini, the front four teeth in her upper jaw were missing. “The day he broke my teeth with a belan, he told me that even Suparnakha [a mythological character] had her nose cut off because she was a woman without morals. This is how he justified his violence. After he beat my teeth in, he asked me to pull them out myself.” This happened in March 2018, when she was four months pregnant.

“The sex was never consensual. He would beat me with a belt, and make videos. In my seventh month, he hit me hard on my pelvis because I refused to have sex with him.”

When she visited a health facility after this incident, she told the doctor examining her that she had slipped in the bathroom. “I was too scared to file a police report,” she said. “What would he [the perpetrator] have done to me, if he had come to know that I had reported him?”

Though domestic violence is recognised as a crime under section 498-A of the Indian Penal Code (IPC), it was only with the enactment of the Protection of Women from Domestic Violence Act (PWDVA) of 2005, that it received a broader definition. It now includes all forms of physical, sexual, economic, verbal and emotional violence. It also provides protection for wives, live-in partners, sisters, mothers or widowed relatives. It crucially leaves out transgender and gender non-conforming persons, for whom, activists say, sexual violence is part of a continuum of discrimination.

“Whether it is sexual violence laws, domestic violence laws, or any other personal laws, they are all applicable to the ‘majority’ of society. None of these laws are built to include sexual minorities,” a 2018 report titled Domestic and Sexual Violence: Claiming Voice, Rights and Dignity, released by Bengaluru-based gender and sexuality rights group Ondede, stated.

Even the Transgender Persons (Protection of Rights) bill 2019, which was passed by the Lok Sabha earlier this year, suggests a two-year imprisonment for criminal offences against transpersons — a shorter duration than what is legally provided to women in the IPC.

The NFHS-4 data, which only includes men and women, reveals that 30% of women between 15 and 49 years have experienced physical violence.

The report also states that different forms of violence are seldom experienced in isolation. Bharti Sharma, honorary secretary of Shakti Shalini, would agree. “Violence is embedded in patriarchy, and sexual violence is a part of it which is an extreme form. Such violence has an element of physical, emotional and psychological violence.”

To be sure, the India Crime Report 2017 based on National Crime Records Bureau (NCRB) data, released earlier this month, shows a decline in the number of rapes reported, all India, since 2013. The data also shows that rape conviction rates (cases in which the suspect was convicted as a percentage of cases where trial was completed) in 2017 was 32.2%, the highest since at least 2001. However, this decline is not uniform across states. While a state-wise break up of reported rape cases is available — in some states like Madhya Pradesh and Chattisgarh, the reports had spiked between 2016 and 2017 — a similar state-wise break up is not available for conviction rates. This makes it tough to understand whether higher conviction rates across India have indeed led to a drop in instances of rape.

Roadblocks

For Zishaan Iskandari, a lawyer associated with Delhi-based not for profit organisation HAQ that works with children who are victims of sexual violence and abuse, the process of obtaining justice is a big roadblock.

One of his clients is a 19-year-old woman from Jharkhand, who experienced physical and sexual violence by her South Delhi-based employers, who hired her as a domestic help in November 2015. The same month, her employers accused her of stealing ~2 lakh, a charge the woman denies. Soon after that, the physical violence started, she said. One day, her employer and their friend cloistered her in a room. “They tied me up and my employer’s friend inserted a wooden stick inside my private part. They kept asking me where I had hidden the money that they accused me of stealing,” she said. “They did not pay me a single paisa for the work I did,” she said, adding that she managed to escape from their house the following year.

She has three sisters who live in a village in Jharkhand, her brother currently works in the National Capital Region, but she is not in touch with any of them, she said. Her parents had died before she left her home.

In November 2016, the Child Welfare Committee (CWC) took cognisance of her case and sent her to a child care institution. In an order dated May 26, 2017, it directed her employer to pay back-wages amounting to ~1.75 lakh. “The order was set aside by the sessions court in the appeal,” Iskandari said, “as she was found to be a major at the time of the incident, basis a school document.” Iskandari has not seen the document, and cannot attest to its authenticity. Three years on, a charge sheet has still not been filed. “We have now asked for a court-monitored investigation in this case,” Iskandari said.

In cases of child sexual abuse (CSA), the biggest challenge that a victim faces is a difficulty in reporting their abuse, Iskandari points out. “Most of times, the perpetrator is known to the child. The delays in the investigative process and in securing justice — dates are given, but the case doesn’t proceed — demoralises the victims and the families.”

As of December 31, 2018, there were over 10,000 cases of sexual assault against women and children pending in Delhi alone. To that end, the centre had proposed setting up 16 more fast-track special courts. But this alone is not enough. Amod Kanth, general secretary of child rights organization Prayas, and former Director General of Police of Arunachal Pradesh, pointed out that the police have still not understood the scope of the problem. “Police investigation is a mainstay, but it doesn’t always happen [the way it should]. That’s because the police still have not understood the various kinds of sexual crimes. They still think of sexual violence as either rape or outraging of modesty.”

The solution, Kanth said, lies in an integrated approach to sexual violence. “Support persons, lawyers, doctors, and police who work together as a team, can help treat the case with the seriousness it needs and take it beyond resolving a crime, to helping the survivor achieve whatever they want. This mechanism, however, is missing.”