Family – A Site of Despair Also: Endorsed through South Asian Domestic Violence Laws

February 8, 2010

By Rukmini Sen. Columnist, Sanhati.

The feminist perspective to family is very different from the original male stream sociological discourse on family which considered it as a group of individuals related to one another by blood ties, marriage or adoption, who form an economic unit, the adult members of which are responsible for the upbringing of children [1]. Juliet Mitchel provides the radical feminist understanding of the family.

Like woman herself, the family appears as a natural object, but is actually a cultural creation. There is nothing inevitable about the form or role of the family. The ‘true’ woman and the ‘true’ family are images of peace and plenty; in actuality they are both the sites of violence and despair [2].

This article is in continuation to the last article on the definition of domestic violence in South Asian countries’ enacted and proposed legislations on domestic violence. While I have already analyzed how domestic violence is defined, this article makes an assessment of how domestic relationship is defined. In other words, how is the family constructed through these laws? It is interesting to see that the family which has always been considered as a site of peace and protection today is acknowledged by the law and policy makers to be a violent space, and feminist movements worldwide and in South Asia specifically have had a role to play on this reconstruction. The meaning of family also is transforming—marriage is no more the basis of domestic violence, that violence can happen both in the consanguinal and affinal families are accepted in the legislations or bills.

The Indian law Protection of women from Domestic Violence Act, 2005 [3] does not define family, it defines domestic relationship as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Domestic relationships are meant to cover sisters, widows, mothers, daughters and single women. One thing of crucial significance in this definition is that the live in relationships are legally recognized in the phrase ‘relationships in the nature of marriage’. Given the fact that marriage still remains the reference point, yet we have for the first time an Indian law legitimizing live in. the limitation however is that live in relations ‘need’ to be violent to be recognized by the law, because otherwise there is still no Indian statute giving any legal rights to live in partners. Moreover, this law talks about two persons being married, and does not say a man and a woman married—this also can have far reaching implications now with S 377 being decriminalized according to the Delhi High court and if in some distant future we would see the legal system legitimizing gay and lesbian partnerships.

The Sri Lankan law, titled Prevention of Domestic Violence Act, 2005 [4] defines a relevant person in relation to an aggrieved persons, the latter being the victim of domestic violence, in the following way:

(a) (i) the spouse; (ii) ex-spouse; (iii) cohabiting partner , of an aggrieved person ;

(b) (i) the father, mother, grandfather, grandmother, stepfather, stepmother ;

(ii) the son, daughter, grandson, granddaughter, stepson, stepdaughter ;

(iii) the brother, sister, half-brother, half sister, step brother, step-sister ;

(iv) siblings of a parent ;

(v) the child of a sibling ;

(vi) child of a sibling of a parent, of an aggrieved person or of the spouse, former spouse or cohabiting partner of the aggrieved person

Here it is interesting to note that the ex-spouse is also taken into consideration, besides cohabiting partner being recognized legally. Unlike the Indian law, which does not specify separate relationships and mentions members living in a joint family, the Sri Lankan law separately takes note of the different relationships associated through blood, adoption, and re-marriage.

According to the National Assembly of Pakistan, Prevention of Domestic Violence Act, 2009 [5] domestic relation means the following relationship between the victim and the respondent: a) they are or were married to each other, including marriage according to any law, religion, custom or usage b) they are family members related by consanguinity c) they are family members through marriage d) they share or recently shared the same residence e) the victim is a dependent f) the victim is a child g) the victim is an incapacitated adult. Like Sri Lanka, Pakistan proposes to bring the ex-spouse within the ambit of domestic relationship. Unlike India and Sri Lanka, Pakistan does not have a mention of cohabitation. However, it does bring in a disability perspective in its legislation by acknowledging the vulnerability of the disabled person within a domestic relationship requiring further protection. The law defines an ‘incapacitated adult’ as any person wholly or partially incapacitated or infirm, by reason of physical or mental disability or ill-health or old age over whom the respondent exercises or has actual or constructive control. There is a connection that is being made between disability, ill-health, old age and dependency in the legislation. Both the Sri Lankan legislation and the Pakistani bill have a separate mention of the child which the Indian legislation does not, although it is implied.

The Law Commission of Bangladesh, 2005 proposing a Domestic Violence Act [6] defines a family directly and does not talk about domestic relationship as the other legislations. Family would consist of a spouse including his/her child, adult children including handicapped adult, adopted son or daughter and their respective spouse, parent, grandparent, sibling, sibling’s spouse, child, any domestic servant of any sex or age or any other person whether related or not by blood or marriage living in the same or shared household as a regular or intermittent inhabitant thereof. Like the Pakistani legislation, there is no mention of cohabitation or relation in the nature of marriage. It can be concluded that none of these two countries are yet ready to legally recognize cohabitation. Like Pakistan, Bangladesh also proposes separately the vulnerability of the handicapped adult who is wholly or partially handicapped, incapacitated or infirm, by reason of physical or mental disability or ill health or old age and who is living as a member of the family. But what is most significant in Bangladesh is the inclusion of domestic servant of any sex within the ambit of shared household and the meaning of family. None of the other countries have any mention of domestic workers. In fact in India organizations working on domestic workers are actually demanding separate legislations for the violence faced by women domestic workers. It is actually a very broad definition of the family when one includes domestic workers within it, and also reflects the complexities of feudalism and modern legal system co-existing.

Changing relationships in family are being recognized in domestic violence laws in these four countries. Since in India the law is specifically having women as the aggrieved person who can lodge a complaint, there are already efforts from men’s groups and Save India Foundation for the need to amend the law citing its misuse. The Ministry of Women and Child is pre-empting some changes. It would be unfortunate if modifications are made, based not on well founded research but on frivolous charges from conservative groups in the country. Whatever happens, it is important to remember that family is and has been a site of inequality based on gender, age and able-bodiedness.

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[1] Giddens, Anthony Sociology, Polity Press, Cambridge (2001: 689)

[2] Mitchell, Juliet ‘Woman’s Estate’ in Jaggar, A M and Rothenberg, Paula S (eds.) (1993) Feminist Frameworks: Alternative Theoretical Accounts of the Relation between Women and Men, McGraw Hill, Boston, pp. 189-191 (1971: 190)

[3] The Protection of Women from Domestic Violence Act, 2005 http://www.vakilno1.com/bareacts/Domestic-Violence/Domestic-Violence-Act-2005.htm

[4] Prevention of Domestic Violence Act No 34 of 2005, http://www.documents.gov.lk/Acts/2005/Prevention%20Act%20No.%2034%20of%202005/H%2022927%20Prevention%20(E).pdf

[5] Prevention of Domestic Violence Act, http://www.na.gov.pk/private_bills/prevention_domestic_violence_12082008.pdf

[6] Government of People’s Republic of Bangladesh, The Law Commission, A Final report on The Proposed Law on Domestic Violence along with a draft Bill namely the Domestic Violence Act 200…., December, 2005 http://www.wcwonline.org/pdf/lawcompilation/Bangladesh-DomesticViolence%20Law%20draft.pdf

2 Comments »

2 Responses to “Family – A Site of Despair Also: Endorsed through South Asian Domestic Violence Laws”

  1. kostenlos kennenlernen Says:
    July 3rd, 2010 at 06:58

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  2. SB Says:
    October 21st, 2010 at 20:12

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