Vismaya Nair was found dead on June 21, 2021, in her marital home in Kollam, Kerala, less than a year after she got married to Kiran Kumar. When Kiran was convicted on May 23, 2022, for driving Vismaya to suicide, Vismaya’s family said that they were content with the verdict – their daughter had gotten justice. In a country where legal battles and family disputes can drag on for years, it is not hard to imagine why Vismaya’s family would have felt a sense of vindication and relief at the conviction that came within a year. But for Vismaya, a 22-year-old Ayurveda student who had her whole life ahead of her, the ‘fast-track’ verdict still comes too late.
After the case came to light, the shocking details of Kiran’s atrocities towards Vismaya over his unhappiness with the dowry were also revealed. He exerted control over who she spoke to, as well as her economic freedom. The photos of the injuries on her body, juxtaposed with those of her smiling, laughing, posing with Kiran at their wedding, painted a painful picture, especially in the context of her suicide. Vismaya, in a lot of ways, became the ‘ideal’ victim – a young, beautiful, dominant caste woman, who had tried to “save” her marriage despite the violence she was subjected to. Not that there weren’t people who justified the treatment meted out to her, but largely, the media and the sentiment around the case were sympathetic towards her.
However, most victims are not “ideal”. A number of women who are survivors of violence are picked apart for the inanest of reasons – they are outspoken, unwilling to “adjust”, dress “immodestly”, aren’t willing to try to “save” their marriage and more. In a legal and social system that is geared towards reconciliation and keeping the family intact, often at the cost of the woman’s best interests, it is a question worth asking – would Vismaya's ordeal have sparked the same sympathy if she had pushed back against the violence, if she had implicated Kiran instead of trying to ‘compromise’ to make the marriage work? Would she not have been picked apart in court like so many women who allege domestic violence, sexual abuse, and dowry harassment are? Would she have been believed the same way if she had lived and fought?
Akhila, an advocate practicing at the Madras High Court, describes what the courts expect a ‘perfect’ victim to look like. “There is more sympathy when she is a modest woman; essentially someone who fits the patriarchal archetype of the submissive wife or obedient daughter-in-law. She is independent but not ambitious, not threatening the matrimonial family, someone who would persevere and want to continue with the marriage,” she says, “depending on who the judge is too, of course.”
Akhila pointed out that we have more sympathy for women who become ‘martyrs’. A case in point is Nirbhaya, the moniker given to the victim of the 2012 Delhi gangrape and murder, who was a physiotherapy student. The case led to amendments to India's criminal laws to broaden the definition of rape beyond penetrative peno-vaginal assault, and increase the minimum punishment for rape. Another comparable case is the Disha (not her real name) gangrape and murder in 2019, in Hyderabad. The veterinary doctor was sexually assaulted allegedly by four persons, three of them minors, and her body was burnt by the rapists. The Disha Act (Andhra Pradesh Criminal Law (Amendment) Bill), stipulating the death penalty for those found guilty of rape within 21 days of the crime, was passed in 2019.
There are several similarities between Vismaya, Nirbhaya, and Disha: all the cases had proof of overt and graphic violence, the women did “respectable” work, were urban and belonged to dominant castes, and died.
“Vismaya checked a lot of the boxes. She was beautiful – long hair, dimpled smile – and she looked domestic,” says Srimati Basu, a professor of Gender and Women’s Studies at the University of Kentucky, College of Arts and Sciences, who has studied the workings of family courts between 2001 and 2014. “The cases that are more likely to be believed are ones that leave a trail of evidence such as, say, if a woman had gone to the police once before and that complaint exists, there are messages, and photos,” she adds. Vismaya also expressed fear of what she would look like with a broken marriage – one that ‘good’ girls are socially conditioned and expected to have.
Ekta Viiveck, the founder of a six-year-old support group for domestic violence survivors called Invisible Scars, active in 59 cities and 12 countries, points out that like Vismaya, many domestic survivors do reach out to family and others for support when they are experiencing violence; but they are often told to, or conditioned to, try to make it work anyway. “We’ve noticed that in a lot of cases, the family only starts feeling distraught or regretful if she dies. But what about when she reveals the abuse? Why do we not tell them to leave, or provide support or refuge then?” Ekta asks.
Vinita Thakur, a lawyer practicing in Hyderabad’s family courts for two decades, admits that depending on the judge – and how conservative they are – she does advise some clients to dress a certain way to have a better chance at being believed: “Like asking them to wear a salwar-kameez and oiling and tying their hair,” she tells TNM.
Ekta notes that many survivors have reported being met with disbelief and questioning much before a case goes to court – right at the police station. “When a woman walks into a police station, especially a women’s police station, to report violence she is facing and is then judged by a woman sitting there in uniform, it really discourages the victims,” she says. Caste and class are also at play here – while a middle-class woman who knows her rights is more likely to get an audience, a woman from a marginalised socio-economic location is more likely to be dismissed.
In many cases, police officials turn ‘counsellors’, telling women to compromise and adjust instead of filing a complaint, scaring them about how their lives and families may suffer if they take legal recourse. “And when cases do go to court, domestic violence survivors have reported being questioned for being too loud (“are you this aggressive at home?” the judge asked a woman), dressing in western clothes. Their experience tells us that often, if they don't fit the bill of a saree-wearing, bindi toting, domesticated woman, they run the risk of being judged at the reporting stage itself,” Ekta observes.
Some lawyers allege that the police get suspicious when a woman files a case under section 498A. This is partly due to a lobby of men’s rights groups claiming rampant misuse of the law, though the National Crime Records Bureau data shows that out of 1,67,067 cases reported or under investigation for cruelty by husband or his relatives in 2020, only 5,520 were found to be false. While civil society has acknowledged that women are often advised to file a complaint under section 498A because the Domestic Violence Act only provides civil remedies, they also note that it is more underused than misused. This is because of the stigma associated with being a victim of domestic violence, and the fact that a woman’s ability to report or navigate the situation is determined by whether she has support, personal safety, a safe place to go to if she leaves, and sustenance, among other things.
Contrary to the assumption that women would enter police stations and willingly and openly tell traumatising stories of assault, “women start with smaller stories – like her mother-in-law pushing her – and other, seemingly less brutal forms of violence,” says Srimati. “There is a lot of pain and shame in telling stories of your battering. So, the police may assume that it is just a family tussle when the opposite is true. People have come to believe that domestic violence is not a huge thing unless they are poked in the eye with it because it is so ubiquitous,” she adds.
There is enough evidence to show that an overwhelming proportion of people believe that some amount of domestic violence is to be expected – and endured – by a woman when she gets married. Nearly half of the respondents to the National Family Health Survey-5 – 45.4% women and 44% men – said that beating a woman is justified for things like going out without telling her husband, neglecting housework, arguing with him, or refusing to have sex with him. It isn’t surprising then that women who do report domestic violence often don’t find support from the police, who are results of a patriarchal society too. This is especially true in cases of emotional and economic violence because these may not leave discernible signs of abuse, such as injuries.
The judiciary isn’t exempt from manifestations of these justifications for misogyny either – an example being Delhi High Court judge Justice C Hari Shankar’s order from the recent split verdict on criminalising marital rape. Justice Shankar’s order reinforces that women’s sexual autonomy is secondary to a man’s conjugal rights, and while consent is important, a single instance of a man compelling his wife to have sex with him, is not enough to call him a rapist.
Evidence is the clinching aspect of any legal battle. But in domestic violence cases, while having substantial documentary evidence (messages, photos etc.), medical evidence (injuries), and anecdotal evidence (witness accounts) can help a woman, this is also turned on its head and can be used to accuse a woman of scheming.
Similarly, while victims are expected to look and act traumatised and submissive, they are questioned for the same – “Why didn’t you leave? Why didn’t you fight back?”; and for having civil behaviour towards the perpetrator. It is not difficult to imagine that if Vismaya had been alive, her Facebook timeline – full of photos of her wedding, photos with her husband, to maintain a facade of marital bliss against the stigma of the brutal violence she was facing – could have been used to discredit her in court. This is what had happened with the nun from Kerala who alleged sexual abuse by Bishop Franco Mulakkal, acquitted by the Additional Sessions Court judge Gopakumar G in Kottayam, Kerala in January. The judge’s reasons were “flaws” in the nun’s testimony essentially arising from the fact that she didn’t present as the “ideal” victim, by still interacting with the accused after the alleged sexual assault, not being confrontational with him over email, and attending a public event in his presence, among other things. All this, despite the fact that there the bishop wielded significant power and authority over the nun, which would have affected her ability to express herself confrontationally.
Ekta adds that survivors have also experienced questioning along the lines of why they didn’t leave the relationship sooner if their allegations were genuine. Further, there is a larger lacuna of understanding if there isn’t physical abuse, but primarily emotional or economic abuse, says advocate MA Shakeel, practicing in Hyderabad. “The judiciary often does not have sensitivity about gender dynamics and places emphasis on the woman’s ability to “maintain” her marriage to establish her credibility,” he says.
The very fact that the institution of marriage is challenged by the woman speaking up against domestic or dowry-related abuse is often seen unfavourably. Srimati writes in her book, The Trouble with Marriage – Feminists Confront Law and Violence in India, that in family courts, “While judges were scrupulously attentive to issues of maintenance, these concerns seemed secondary when they knew the women had filed parallel charges under section 498A. They depicted such cases as a willful destruction of the marriage, an unforgivable embarrassment to the husband and affinal family, and an arbitrary demonstration of power.” In a case that she describes in the book, a judge sees a woman’s allegation of physical violence from her husband and the fact that she had filed a case under section 498A, as the more “harmful” act. The fact that there was a lack of testimony from neighbours to corroborate the violence was another factor that acted against the woman’s favour. The judge in the case, a woman, also seemed to be sympathetic to the husband, who could lose his railways job, and accused the man’s wife of not being a “simple dumb woman” because she was able to “put him through the process.” Further, the fact that she demanded maintenance and a lump-sum amount also “seemed to turn the courtroom against her, as if that made the torture claim spurious, the assumption being that a genuine victim would not be thinking about money,” Srimati writes.
These assumptions remain, despite the fact that economic dependence remains a key factor in women being unable to leave abusive relationships and marriages. “Domestic violence survivors don’t get the support they need. As a single woman, would you get safe accommodation? How will you support yourself and your family? Are you bringing shame to your family? Will your reputation as a single or divorced parent spoil your child’s prospect too? And of course, there is always blame ascribed to the survivor – did you do enough to make it work?” Akhila points out, listing some of the reasons women aren’t able to report domestic violence, or leave abusive marriages.
As per NCRB data for 2020, there were 6,966 cases of dowry deaths reported that year, bringing the total number of cases under investigation to 10,421 including cases reopened and those pending from previous year. Of these, 956 dowry death cases ended in conviction. Meanwhile, 17,854 cases were there for investigation under the Dowry Prohibition Act from the previous year and that year; 56,731 were found to be pending trial; and 803 ended in conviction. These numbers are often used by a section of people to claim that most cases of dowry are false. However, if one looks at the number of convictions in comparison to those under investigation, along with the fact that there is a pendency of 35% in dowry death cases and 43.2% in cases under the Dowry Prohibition Act, the claim of false cases falls through.
Srimati points out that for many women, a favourable outcome in dowry and domestic violence cases may not always be about getting a conviction against their husbands or the affinal families, but rather, securing maintenance, or even going back into the marital home with the violence abating – because we teach women that no marriage or a broken marriage is worse than a dysfunctional one. Akhila points out that even in cases where there has been death, the cases could fall apart because there isn’t proper investigation. “Or, there is some form of settlement because the victims and their families cannot afford the process or the social ostracisation,” she says. “It is an uphill battle to get an FIR registered and a chargesheet filed in a timely manner. Many survivors and their families would rather make a settlement so they can move forward with their lives, instead of shouldering hefty legal fees for years,” she says.
Vinita adds that in many cases, the husbands can use methods of character assassination to discredit the woman in court – calling her nagging, unwilling to adjust. Akhila gives an example: “While a woman recording evidence of violence could be seen as one who has planned to incriminate her husband, many feel scared if their partners have recorded evidence of them fighting back or yelling back. If they have had previous relationships or sexual relationships before marriage, they may feel afraid of it being brought up in court,” she says.
"There is stigma around reporting domestic violence, breaking a marriage and reporting your own husband; relatives and neighbours can refuse to testify as witnesses as soon as a woman starts litigation. The man can, meanwhile, comment on her nature and character,” Vinita says. “However, in my experience, the judge will often primarily rely on evidence. If the woman is able to prove the abuse and harassment with evidence, then that will take precedence over the husband’s character assassination,” she adds.
However, the fact that the Vismayas, Nirbhayas and Dishas set our standards – women who faced graphic violence and can no longer argue their cases – creates an unachievable trope of an “ideal” victim… One that actively discourages living, breathing women from speaking up, and fails them in their life.