This article is written by Aparna Aggarwal, a student pursuing BBA LLB (Hons.) from the UPES School of Law.
The term “domestic violence” comprises elaborately all forms of real abuse or threat of abuse of physical, sexual, spoken, emotive and monetary nature that can harm, cause grievance to, compromise the health, wellbeing, life or either psychological or physical condition of the aggrieved person. Domestic violence can be bodily or emotional, and it can affect anyone of any age, sex, race or caste. It may include behaviours meant to jolt, physically injure, or control a partner. It generally involves an unequal relationship in which one partner tries to emphasize control over the other partner in various ways by using their power on them. Gender-based violence is defined by the United Nations as any act of violence that results in physical, sexual, or psychological harm or suffering to women, girls, men, and boys, as well as threats of such acts, coercion, or the arbitrary deprivation of liberty.
According to ‘India National Family Health Survey’ of 2015-16, 30% of the women between 15-49 years of age have experienced physical violence (either by husband or by anyone else) since the age of 15 years and 21 percent have experienced such violence in the last 12-months. On a closer observation, from 17 percent among women age 15-19 had suffered from domestic violence. In India, more than 55% of the women suffer from Domestic Violence, majorly in the states of Bihar, U.P., M.P. and other northern states.
However, it is not only women who are the victims of Domestic violence. 4% of women who were ever married had initiated physical violence against their husband, in cases when there was no existing violence by the husband. 3% women have reported to initiate such violence in the last 12 months against their husbands.
But the effects of domestic violence are not limited to the victim, rather it affects the people around them, mostly children residing in such a household. Whenever we come across a child who lives in a violent family or has suffered from domestic violence against themselves or seen either of their parents suffer, they are usually told that “Refuse to inherit dysfunction. Get over it and start afresh instead of repeating what you have gone through.” As a child, the need is to have a safe and secure home and a lovable family that protects them. The early social upbringing and emotional development reflects largely at later stages of life. While a positive upbringing shall develop a child into a responsible person, a negative upbringing- like that in a violent family or where the parents usually are in dispute- might not be so healthy for children of tender age. Being exposed to an abusive, violent or coercive behaviour can have a devastating and long-term effect on the child. These children witness either parent assaulting the other and are denied of their right to be in a safe and stable home environment. Children exposed to these incidents may face difficulty in focusing on their studies, developing skills and may also show violent episodes of behaviour or suffer from depression or severe anxiety.
According to the Report by UNICEF in 2006, as many as 275 million children worldwide are exposed to violence in home. It is found that there is a common link between the violent households and child abuse. Among victims of child abuse, as many as 40% report of violent households. This link is observed in nations around the globe, including India, China, South Africa, Columbia, Egypt and others, with relevant studies and observations.
Types of child abuse in India
Child abuse can be understood as the neglecting the child or harming in verbal, sexual or physical ways as a result of pressure from the cultural or ethnic factors. Sometimes, an emotional abuse, however, not visible, can have a life-long impact on the child’s mental health. According to the World Health Organisation, “Child abuse refers to any kind of physical or emotional mistreatment, sexual/physical abuse, negligent treatment or commercial/other exploitation, resulting in actual or possible harm to the child’s health, survival, development or dignity…”
Therefore, Child abuse can be categorised in the following Categories:
- Sexual Abuse
- Emotional Abuse
- Physical Abuse and Domestic Violence
Sexual abuse of a child means the involvement of the child in a sexual activity that he/she is not fully capable of comprehending, is not of the maturity to give informed consent for such activity or that are a result of the societal taboos or in violation of the law. Child sexual abuse can be forced by an adult upon a child or by another child, who is in the relationship of responsibility, trust or power, where such act is intended to satisfy the needs of the offender. This includes, but is not limited to, the following:
- Inducement of a child or coercion upon a child to involve in an unlawful sexual activity.
- Exploitative use of child’s person, for example: prostitution.
- Exploitative use of children in pornographic materials or performances.
As per the Nation-wide study conducted by the MoWCD in 2007 of 12447 children, the following observations were made:
- Around 53% of these children have experienced sexual abuse in the form of sexual assault, exhibiting private body parts, or nude photography.
- 20% reported severe sexual abuse.
Several other smaller studies have shown similar observations, and so, keeping in consideration the facts, the Government of India enacted the Protection of Children from Sexual Offences Act, 2012, popularly known as the POCSO Act. This act criminalises sexual offences against children including rapes, harassment of any kind, and exploitation of children below the age of 18 years for pornographic content. This act has also established a special court because of the pendency of children’s sexual abuse cases and related offences in the existing courts.
Cases of sexual abuse
In the State of Punjab vs Gurmit Singh & Ors, the Hon’ble Supreme Court has laid down the following:
- The anonymity of the minor victim (name, address etc.) should be maintained in all cases throughout the criminal proceeding. The name and other details should be withheld even while providing the charge sheet to the accused. The idea is to save further embarrassment of the victim of such an offence.
- The court laid emphasis on Sec 327 of the Code of Criminal Procedure, 1973, which provides for the trial of certain offences to be conducted on camera, which shall aid the victim of such offence to give her testimony comfortably. Presence of the Media or public in general may make the victim uncomfortable and shy while giving her statement.
In addition to the above-mentioned rules, the court in the case of Sakshi vs Union of India the following was laid down:
- The video tape of the child’s interview can be used by the court only in the presence of a child support person.
- In order to get a candid account of the complained offences, the victim should be allowed to testify through a closed-circuit television.
- A minor victim can be cross examined only by the judge on the basis of the written questions submitted by the defense.
- A child should be allowed for sufficient breaks, as and when required by them, while giving their statement.
Neglect can be understood as the failure of the family or caretaker to provide for a child’s development including his/her health, education, shelter, nutrition, and safe living environment. Any act or omission which causes or may cause a harm to the child’s overall development also refers to neglect or to protect them from any harm as much as is feasible. In other words, a neglect comprises of the failure to:
- protection against harm
- attention of care
- monitor the child’s progress
- report bruises
- provide proper and adequate nutrition
An Emotional Abuse against the child can impair his very emotional development and the sense of self-worth. An emotional abuse is usually in the form of criticism, rejections, threats, withholding love and support. As a result, the child may present a lag in his physical developments, speech disorders and sometimes, extreme behaviours (like aggression, stubbornness etc.) Such a child may also avoid being in physical contact with his parents or be afraid of going home at times.
In other words, the failure to provide for an appropriate and supportive environment necessary for a child’s overall growth, including a primary attachment figure constitutes emotional abuse. The acts intending to cause harm to child’s health and well-being (physical, mental, spiritual, moral or social), like restriction of movement, scapegoating, discriminating, ridiculing and other forms of hostile treatment also amounts to emotional abuse of such child. Other examples include, isolating or excluding the child, stigmatizing them, not providing a supportive environment or responding to emotional needs of the child.
As per the WHO, the lowest rate of cursing children or calling at them by the parents is 17% in Chile and the highest in Egypt at 48% (past six months). The same source shows other kinds of emotional abuse against children including refusal to speak to the child, threatening about evil spirits or abandonment, locking out the child from the house and yelling at the child in five countries- Chile, Egypt, India, Philippines and USA.
In the case of Prakash vs State of Rajasthan, the court focused on the impact of abuse on the children of sensitive age. It observed that a child, who puts his faith in his elders to protect him, falls prey to the uncontrolled libido of the adult. The psychological effects of such betrayal haunt this child throughout his life. Sometimes, this abused child who is wronged, becomes a mal adjusted citizen and rebels against the society and state. The duty is of the state and the society to protect children and promote him in his life thereafter. These cases invite for creative investigations and judicial sensitivity. The minor victim may initially not speak up, but it is up to the family of such victim to take care of his emotional well-being. The courts should be able to make this victim comfortable enough to speak, and not intimidate him. The necessary guidelines have been given by the supreme court in several cases (supra, Sakshi vs Union of India).
PHYSICAL ABUSE AND DOMESTIC VIOLENCE
According to the WHO, physical abuse means any act the consequence of which is the actual harm to the child or a potential harm, by a parent or any person in a position of power, responsibility or trust. Some signs which a physically abused child may show are bruises, broken bones, or undernourishment and obvious neglect (not appropriately dressed according to weather, lack of medical care etc).
In the case of Childline India Foundation v. Alan John Waters and Ors, the Supreme Court issued elaborated guidelines with respect to child abuse. These are briefly as follows:
- The DPSP provided under the Indian Constitution provides policies specifically for protection of children, to ensure that children of tender age are not abused or forced by economic necessity to indulge in activities unsuited to their strength.
- Art 45 states that the State shall provide for early childhood care and education up to the age of 14 years to all children. It also realises the importance of dignity and personality of individual and provides for free and compulsory education by the state for children (up to 14 years of age).
- The JJ Act was enacted to provides for care and protection of neglected and delinquent juveniles and the establishment of special courts for the disposition of delinquent juveniles.
In Rangesh vs State by inspector of Police, the court observed that child abuse is increasing at an alarming rate at schools. According to reports of the National Commission for Protection of Child Rights (NCPCR), the cases of child abuse have tripled over past three years from 21 states:
- 34 complaints in 2007-08
- 68 complaints in 2008-09
- 95 complaints in 2009-10
International standards regarding protection of children against abuse
AGAINST PHYSICAL VIOLENCE
STANDARD: Girls and boys to be protected from any kind of physical violence and other harmful practices, and the survivors of such acts to have an unbiased access to age specific and culturally appropriate response.
Standard 8 of the Minimum standards for child protection in humanitarian action highlights the physical violence and other harmful activities against children. As a result of strain and weak protective environments, the family or community members may start abusing the children, putting them at a higher risk of domestic violence, physical or sexual violence and even emotional abuse. One of the major examples of the societal abuse is the Female Genital Mutilation and child marriages for the purpose of enhancing the family’s economic condition or an intention to provide for their daughters.
HOW IS THIS STANDARD MAINTAINED?
- Raising awareness of the symptoms of distress in children and adults and how to deal with this distress in non-violent ways.
- Gender sensitive and multi-sectional care for minor victims of domestic abuse or physical violence of any kind.
- Monitoring of children who are at a risk of being exposed to domestic violence or physical harm and give them access to the required resources as and when required
- Focusing on eradicating social harmful practices- for example, the parents’ right to hit their children.
- Strengthening the existing child protection mechanisms in public domains, so that the perpetrator is well-aware of the consequences and will therefore resist.
AGAINST SEXUAL VIOLENCE
STANDARD: Girls and boys to be protected from any kind of sexual violence, and the survivors of such acts to have an unbiased access to age specific and culturally appropriate response.
Children around the globe are subjected to sexual violence in different settings and circumstances. Sometimes, the perpetrator is a family/community member, strangers or colleague at workplace. Children are exploited for prostitution, child trafficking or pornographic content. Sexual violence can have a life-long impact, on both girls and boys, and may reflect in their social and physical well-being, emotional, and psychological health.
HOW IS THIS STANDARD MAINTAINED?
- Working with children and families on ground level to aware them about sexual violence and how to prevent it.
- Providing for multi-sector resources for survivors of such offences- medical, psychological and emotional support.
- Assisting adolescents in addressing their safety concerns at ground-level and provide risk-free services.
- Social workers and health service providers to be trained on child-appropriate responses when dealing with victims of sexual violence.
- Eradicate structural discrimination (girls and boys of low social status are more exposed to sexual offenses against them).
AGAINST EMOTIONAL VIOLENCE
STANDARD: Girls and boys to develop coping mechanisms and strength and the survivors of such acts to have an unbiased access to age specific and culturally appropriate response.
Emotional violence majorly relates to the mental well-being of the child. Victims of emotional abuse show changes in social behaviour, physical distress and changes in emotions and spirituality. They may also face issues with their sleeping patterns, nightmares, lack of concentration in studies and skill development.
HOW IS THIS STANDARD MAINTAINED?
- By ensuring that there is proper psychological support for such victims.
- Spreading awareness about and strengthen the already existing community networks for the purpose of providing psychological support to children and their families.
- Awareness about the concept of ‘Providing psychological first aid to a fellow human victim of such abuse’ among people.
- Monitoring the well-being of people through a combination of qualitative and quantitative data (collected through focus group discussions, interviews and community observations).
Is there a need for stringent laws on violence against children?
The statistics relating to child abuse, be it sexual, domestic, emotional or neglect, are alarming in India and worldwide. At the international level, the major convention aiming to prevent child abuse and protect children from any kind of harm is the Convention on the Rights of the Child, which provides for the recognition of the inherent dignity and equal treatment of the children. This convention is based on the Geneva Declaration of the Rights of the Child of 1924. Children are protected from any kind of abuse by virtue of this Convention which was signed in order to improve the standard of life of children. As of September 2020, 196 countries have become a party to this convention. India ratified to this convention in December 1992 with certain exceptions as to child labour.
In India, the following laws have been enacted over the years to protect children from abuse:
This act provides for the prohibition of children in all kind of occupations and of adolescents in hazardous occupations. Any person who employs a child/adolescent or permits him to engage in work is punishable with imprisonment of minimum 6 months, extending up to 2 years, or with fine not less than 20,000 INR and up to 50,000 INR or with both.
- The 9th ISPCAN Asia Pacific Conference of Child Abuse & Neglect (2011) conference re-affirmed and pledged a resolve to stand against the child abuse/neglect and to strive for protection of child rights and work towards a community for every child which is free of violence of any kind.
- The Prohibition of Child Marriage Act, 2006 criminalises child marriage and any person contracting such marriage is punishable with a rigorous imprisonment of two years or a fine of up to rupees one lac or both. A person who promotes permits for child marriage, like the child’s guardian or parents, shall also be subject to a rigorous imprisonment of 2 years or fine of up to rupees one lac or both.
- The latest National Plan of Action for children focusses the key concerns. There are 4 key priorities of the children as identified and monitored in this report- Survival, Health and Nutrition; Education and development; Protection; and Participation.
- The Juvenile Justice Act focusses on the treatment of children and provides for a room of improvement and reformation of the children convicted by the courts. It was enacted with the aim of having child-friendly approach in the judicial processes. However, there is still scope of misuse of this acts in some cases.
- The POCSO Act of 2012 criminalises sexual offences against children including rapes, harassment of any kind, and exploitation of children below the age of 18 years for pornographic content. This act has also established a special court because of the pendency of children’s sexual abuse cases and related offences in the existing courts.
- The The Offences against Children (Prevention) Bill, 2005 covers majorly all forms of abuse against children and further defines the rights and remedies available to the minor victims. It includes all kinds of direct or indirect sexual abuse, offences related to pornography, prostitution and even manipulation of the child’s body in any sense.
The Indian laws and regulations are sufficient to provide quality care and education in early childhood, which is essential to prevent rapes of minor and other types of abuse. However, punishments need to be strong enough to restrict the victim from committing such offence. Creating awareness among the general public to report instances of child abuse (sexual or otherwise) may also be helpful. Existing policies against such offenses should be known to people and should be built upon, as and when required, in the society.
Children exposed to abuse are more vulnerable to have trust issues in later stages of life. Witnessing domestic abuse, either towards themselves or their parents, may lead these children to face difficulty in focusing on their studies, developing skills and show violent episodes of behaviour or suffer from depression or severe anxiety. Child abuse can be of four types: Sexual Abuse, Neglect, Emotional Abuse and Physical Abuse & Domestic Violence. International standards with regard to sexual violence, emotional abuse and physical abuse have been identified and the ways to tackle them have also been discussed. Internationally, various laws and conventions have been signed by countries to ensure protection of children worldwide. In India, various laws have been enacted to ensure safety of children from abuse and to punish the perpetrators who commit such offences. There is still a need to improvise Indian laws to make it a safer place for children to grow and evolve.
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