Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

Abstract

Domestic violence is a serious issue in India with 37% of women reporting being beaten at some point in their lives in national surveys. While this is likely to be an undercount given the stigma associated with intimate partner violence and women’s lack of access to the justice system, it is noteworthy that conviction rates continue to be extremely low even for the those cases that end up in the Courts. Drawing from critical legal anthropology and feminist jurisprudence, I argue that legal language, procedures and discourses attempt to normalise domestic violence by deploying discursive strategies such as consistent and pervasive use of the passive voice diminishing perpetrator responsibility, trivializing violence by avoiding the use of violent attributions in describing violent acts, and shifting blame to victims. Of the 787 cases registered under Section 498(A), disposed by the Bombay High Court between 1998 and 2004, just 6% obtained a conviction where the victim was alive, and 35% to 39% were convicted where victims had committed suicide or had been murdered. Conviction rates were extremely variable with many judges acquitting all the cases that they tried and just two judges convicting a third or more of the cases brought for trial. This disparity was further consolidated by procedural inconsistencies including the treatment of evidence, extent of documentation required to prove a history of abuse, the classification of interested witnesses and retractions by medical examiners, who were seldom cross-examined. The findings present a very troubling picture for gender justice in India, suggesting that what we need are not additional laws but a gender-aware approach to the implementations of existing laws.