Domestic Violence Laws: Are They Gender-Biased?

Author: Shantanu Gupta, NMIMS Navi Mumbai

It is safe to say that domestic violence is an issue that is deeply rooted in our society, affecting people from different backgrounds. Even though there seems to be laws that provide justice, there has been an ongoing discussion on the attention given to whether domestic violence laws in India show any sign of gender bias. The primary legal structure attempts to offer aid only to a woman which increasingly becomes problematic when men and LGBTQ+ individuals start to suffer because there is no support provided legally for them.  

The discrete effort to address domestic violence in India is found in the Protection of Women from Domestic Violence Act, 2005 (PWDVA). It was designed to help women facing violence in family relations. It offers protection, maintenance and right to residence to women suffering abuse, physically, emotionally, sexually and economically. There is also cruelty against women in the form of a wife being beaten and her husband or his relatives hurting her, which is listed in section 498A of Indian Penal Code (IPC).   

 Another legislation that aims to curtail domestic violence is the Dowry Prohibition Act of 1961. Although these laws are helpful to most women, they make no provision at all for male and violence against men or people who have changed their gender identity leaving the legal frame very weak for aids to such types of victims.

Although these legislations are critical for addressing gender-based violence against women, many neglect male victims and non-binary people who experience violence within the domestic sphere. 

1. Exclusive Protection for Women

The Protection Against Domestic Violence Act (PWDVA) and Section 498A married women's rights both focus on women as victims, presuming that only females are prone to suffering from domestic violence. Most reports and research demonstrate that men as well as members of the LGBTQ+ community can also suffer from domestic violence, but legal remedies available to them under the current laws are very few, if any.

Data from the National Family Health Survey 5 shows that a large number of men, as counted in the survey, admitted to being victims of domestic violence, but there was no way for them to request help or justice. Studies of same sex relationships also point out that domestic violence exists among the members of the LGBTQ+ community, thus supporting the call for gender-neutral laws.

2. The Issue of False Cases

This is yet another concern of the law’s opponents: allegations of domestic violence are made much more often than they occur. Even though such allegations represent only a small portion of the overall numbers of cases, the repercussions can be devastating to the people who are unjustly targeted. The Supreme Court of India has revealed cases of wrongful arrest or harassment of males and their families due to the supposed abuse of Section 498A.

In Rajesh Sharma v. State of U.P. (2017), the misuse of Section 498A was noted and guidelines for arbitrary arrest were issued. This case helps us to appreciate the fine balance between safeguarding genuine victimised individuals and ensuring that legal provisions are not abused for ulterior motives. 

3. Lack of Legal Remedies for Male and LGBTQ+ Victims

There does not exist a specific law under which a man or an LGBTQ+ individual facing domestic violence can seek protection or file a complaint. While they can approach the court under the general criminal laws like IPC assault and harassment, such provisions do not offer the comprehensive protection, support, and rehabilitation extended by PWDVA to women.

India is far behind many countries like Canada, the UK and Australia that have enacted gender-neutral laws pertaining to domestic violence which cover all victims regardless of their gender. In contradiction with the current legal system in India which operates on gender-based protective laws, a large number of victims in India remain unsupported in the absence of proper legal protection.

For the male and LGBTQ+ victims, gender-biased domestic violence laws aggravate considerable distress socially and psychologically. These victims do not normally report out of fear of stigmatization, ridicule by society, and lack of institutional support.

1. Social Stigma: The belief that men are not victims in society suppresses male domestic violence victims. This causes additional emotional pain and isolation.

2. Mental Health Issues: Depression, anxiety, and even suicide are rampant among male and LGBTQ+ victims of domestic abuse due to ignoring a clear medical problem that needs addressing.

3. Legal Disempowerment: LGBTQ+ and male victims are disempowered since there are no laws that ensure their protection, such laws make them apprehensive about reporting to the police or pursuing legal action.

1. Victim Identification of Both Genders: One does not have to belong to a certain gender to qualify as a domestic violence victim. A gender-agnostic approach toward such legislation would enable all such victims of both genders to fight for justice.

2. Protection for Male and LGBTQ+ Survivors: Men, non-binary, and LGBTQ+ people would benefit from the provision of protections like restraining orders, safe houses, and psychosocial support – which are currently in place for women.

3. Balancing Act: Even though women need protection, there are safeguards against the misuse of such laws to provide equitable justice to all concerned.

4. Taking a Global Approach: The nations that have gender-neutral domestic violence legislation see an increase in abuse cases against men and LGBTQ+ because they report the offenses. India must take this into consideration when crafting their legal frameworks

Potential Legal Modifications

• Revising the PWDVA Act in a way that accords male and LGBTQ+ victims a chance to seek protection orders and initiate legal proceedings against abuse.

• Creation of new domestic violence law that is not gender discriminatory in any manner whatsoever, such that all victims are treated equally legislatively and otherwise.

• Guaranteeing that both courts and law enforcement bodies undergo sensitization training to accept violence in domestic settings as a concern that affects people of all genders. 

• Establishing help lines, counselling centers, and shelters catering to the specialized needs of male and LGBTQ+ victims. 

The current laws regarding domestic violence in India are designed in a manner to protect women from violence and abuse, Hence, they're not having any provisions for men and LGBTQ+ people poses an issue of discrimination towards them and a gendered approach to domestic violence legislation. A comprehensive strategy that incorporates gender inclusivity will lead to domestic violence policies that can protect and serve all individuals.