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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Feminist Theories and Domestic Violence: A pandemic within a pandemic

 

Today human beings live in the so-called civilized and democratic society that is based on the principles of equality and freedom for all. Therefore, there is an automatic inclination towards non- acceptance of gender discrimination in the society.In order to eliminate it totally from the world, many International Human Rights organisations advocate for an end to all sorts of discrimination against women and promote equal rights for women. Many steps are taken by the government in the form of various policies and programmes to promote the status of women and to realize women’s rights.However, these positive actions towards its elimination are not meeting the required threshold and despite all the efforts, the basic issue that threatens and endangers the very existence of women is the issue of domestic violence against women.

Violence against women is not a new phenomenon. It has been there as a primitive  practice right from the beginning of existence, as due to the physical strength and structure of men, they dominated the family and society, since then started the subjugation of women.Even ‘Home,’ which is characterized as a ‘poor man’s castle’ where one should feel love, affection, gentleness, and comfort, is not a safe place for women. Furthermore, the situation has worsened dramatically during this time of lockdown and pandemic. Emerging statistics and studies have shown that all forms of violence against women and girls, especially domestic violence, are on the rise[1].

Domestic violence is a primitive phenomenon that has often been viewed as an integral part of each society’s socio-cultural milieu, and it is something that occurs in almost all countries around the world, whether developed or developing. As a result, this procedure was never regarded as irregular or immoral. Domestic abuse is a relatively new concept in this context.Domestic violence against women is often viewed as a systemic problem that is gender specific and embedded in the culture. It is thought to be deeply rooted in the nation’s culture or civilization. It has now progressed to the point that it is being committed by the father, mother, and brother of women, as well as in-laws.

By opposing the age-old tradition of domestic violence against women, feminist movements played a major role in exposing the pathetic circumstances of oppressed women all over the world. Feminists all over the world began to lift their voices in various ways as abuse of the weaker sex reached a height. The feminist viewpoint has been one of the most prevalent since the early 1970s.However, in the scope of domestic violence, feminist therories have played a great role to understand the heinous practice in the society.Moreover, it is through these feminist theories that people identified and accepted that domestic violence and crimes against women of  any sort are unacceptable in the society and women should not just be considered to be other sex, rather they should be accepted as a gender with equal needs and desires. National lockdowns, quarantines, border closures, and school closures have certainly helped to control the disease and the effect of Covid-19 on society, and these lockdowns and travel restrictions enforced by countries around the world are slowing down the infection rate of Covid-19. However, the evidence indicates that “domestic violence is behaving like an opportunistic infection, flourishing in the absence of quarantines and border closures.”

Feminist legal theory, also known as feminist jurisprudence, is based on the premise that the law has played a significant role in women’s historical oppression. Feminist legal theory has a two-fold goal. To begin, it attempts to understand how the legislation influenced women’s former status as second-class citizens. Second, how feminist legal theory contributes to the evolving status of women[2].

Three major schools of feminist theories are:          

1.      Liberal Theory:According to the theory, women are just as fair as men and, as a result, should have an equal opportunity to make their own decisions. The theory focuses on the “process of socialization” as the primary cause of gender inequality (through which you acquire knowledge, skills etc). As a result, the laws and biases that influenced women’s conditions in society were the situations and circumstances that shaped their conditions in society and excluded them from equal footing with men. Supporters of this theory argued that society is mistaken in believing that women are by nature less mentally and physically capable than men, and as a result, it discriminates against them. Women have had to fight for their rights and privileges in society. According to this theory, women were denied schooling, technical employment, and adult franchises. As a result, the current crimes against humanity take the source from this theory which defines the status of women and the mindset of the society responsible for this age old practice of domestic violence.This can be linked with the discriminations they face at home in the form of domestic violence and assaults at workplace. Women were not considered to have a legal identity after she got married ,all sorts of rights in the society were not provided to them. Hence, providing equity and equality of opportunities to women will be a solution to reverse the scenario of present times and the laws and prejudices that underwrote them would gradually be replaced.

2.      Radical Theory: Radical feminist theory is a more reformist type of feminism that is based on a gender oppression-centered view of social relationships. Radical feminists never questioned the role of liberal reforms in improving women’s status, especially measures aimed at protecting victims’ rights, such as rape shield laws or, in the international context, the re-definition of rape.Instead, radical feminists argue that reformist programs are far too restrictive, and that far more sweeping changes are needed. Furthermore, since women must live and endure in oppressive environments, silence or passivity cannot be construed as approval. Instead, the law would demand that the woman give her active consent and that she be given the room to do so.For example-The exclusive aim of monogamous marriage in the society was to make the man the controller of the family and supreme in the family.The sole purpose of the marriage was to subjugate the female sex to the male.Hence, women have always been in position to get suppressed in the society and got brainwashed to be one of those victims.

3.      Cultural Theory- focuses on the distinctions between men and women and celebrates those differences; this community of thinkers claims that women value relationships more than men value abstract concepts of rights and reasoning. The aim of this school is to give women’s moral voices of caring and communal values equal recognition.They agree that instead of proving that women are equal to men, institutions should be changed to represent and accommodate women’s values. As a result, society has reached a point where women must be accepted as a distinct gender with their own voice and rights[3].

Legal developments

Since its inception, our constitution has attempted to protect the rights of women. In the case of National Legal Service Authority v. Union of India[4], it was decided that the Preamble’s principles of justice, social, economic, and political equality, as well as assuring the dignity of the person, clearly recognize the right of one and all people.Equality as a concept, has been enshrined in the very heart of our constitution and it has provided us with certain rights and provisions which protect the positivist equalism atmosphere. Article 14 and Article 15 read with Article 12 reflects the thinking of our constitution-makers and further prevent women against gender discrimination. Within the article 15, clause 3 gives the power to the state to make any special provision for women and children so that the concept of equal protection of law remains stable in the society.

In the following case Bodhisattwa Gautama v. Subhra Chakraborty[5], The court discussed the need for legislation to limit the superiority appraisal activities that are prevalent in our patriarchal society. Unfortunately, a woman in our country belongs to a class or community in society that is in a disadvantageous role as a result of many social barriers and impediments, and has thus become the target of tyranny at the hands of men, according to the court.[6].

Conclusion

The constitution has always prioritize the protection of women, but the issue, as mentioned in the interpretation, is that this is no longer the case. Rape or any sort of violence against women is are the most disgusting crimes a society can witness. It degrades womanhood. It degrades a woman’s integrity and diminishes her honor. It distorts her personality and undermines her self-assurance. It infringes on her right to life, which is protected by Article 21 of the Constitution.

 

Authored By- Swastika Saxena



[1]Rahat Zamani, DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA: A CASE STUDY, 2009,https://core.ac.uk/download/pdf/144526937.pdf.

[4] National Legal Services Authority v. Union of India and others , Writ Petition (Civil) No. 400 of 2012, India: Supreme Court, 15 April 2014.

[5]Bodhisattwa Gautama v. Subhra Chakraborty, 1996 AIR 922.

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