Monday, October 31, 2006

By Gyan Pathak

The Protection of Women from Domestic Violence Act 2006 has finally been implemented in India from October 26. Thanks to the politics on issues relating to women, this act saw the light of day as against Women's Bill which has been scuttled for over a decade. Our politicians want support from women without making them strong enough to fence for themselves, and they are doing it well by giving them a little of the support they actually need.

The politics of protection of women is in itself expressive of the truth that our women are yet an 'endangered species'. They have been traditionally suffering not only at the hands of men but also women. The focus of the act this time is “domestic violence”, the definition of which has been broadened in the act itself to protect not only wives and living-in women partners of a household but also our mothers, sisters and widows. Any type of abuse including physical, sexual, verbal, emotional or economic has been defined as domestic violence and has been made punishable. Not only that, a threat of abuse to women has also been made punishable. I cases of trouble, legally speaking, women can get now protection officers, service providers and counselors for their benefit.

It may, prima facie, look fantastic. It may look all encompassing. However, its actual application in our lives may prove to be problematic and cumbersome, for the simple reason that the terms are kept too vague. A reading of the act does not give an impression of a precise legal document. It's like reading a political statement.

The level of perfection and effectiveness of a law is determined by various factors including clarity in the provisions of any act. In the backdrop of lack of clarity in the act in consideration, it is clearly prone to misuse by the hostile women on the one hand, and impediments on the way of getting justice for genuine victims on the other. Our women need removal of impediments in their way of progress and well-being in which our lawmakers miserably failed because of insufficient provisions they provided in the act, and with much vagueness too. The vagueness in various provisions suggests that the act is not a result of well meditated efforts.

The most dangerous area which this act tries to enter into is the “emotional offences” committed or threatened to women in general and wives and live-in female partners in particular. The present Protection of Women from Domestic Violence Act envisages not to check such offences but to punish the perpetrators of such offences. However, it ignored the incapabilities of the present laws and jurisprudence in particular, and limitations of human brain in general, to gauge the level of “hurt” to women, emotionally. In the matter of physical offences, we can easily ascertain the level of hurt or injury, and after that, in matters of punishment, we can also punish the accused accordingly. The question is, if we cannot ascertain the level of emotional hurt, how can we decide the level of punishment to the accused and relief to the victim?

The lawmakers clearly traveled in the blind alley in the realm of emotional offences. A wife, live-in female partner, a mother, a sister and a widow has been traditionally at the receiving end - physically, economically and socially, which are comparatively safer areas to deal in as compared to emotions. A woman can always claim, and rightly so, that they are emotionally hurt or mentally tortured. A problem will erupt when the law enforcing agencies will try to ascertain the level of hurt and the required action to be taken against the accused or when a judicial magistrate or a judge will try to deliver a judgment in the matter and level of punishment without sufficient tools to gauge the level of hurt.

This critique applies not only when we think of prosecution, but also when we think of defendants. Vagueness in various provisions of a law gives much scope to the accused to clear out of the case. It is a known fact, and it can be seen in any court of law in our country. We have a miserably a very low level of convictions primarily due to loop-holes in the laws that our lawmakers have obliged us with.

Another danger of the act under consideration will surface when someone will combine sexual, verbal, and emotional offences altogether, in a husband-wife or live-in partner's relationship. No sexual or verbal contact may also cause grave emotional hurt and dislocation of personality of women. This law is incapable of doing anything in such cases against the accused. Such male partners, strategically resort to such tortures to their spouses without giving them liberation from the wrong choice of partnership. Our women needed a way out from animal like existence tied in a pole.

The problem of widowhood in India has never been addressed properly. Almost 99 per cent of women in our country suffer widowhood for over five years in their lives. The root cause of widowhood lies in our social mindset that a man should marry a woman much less than his age ranging from 5 to 15 years or more. Life expectancy at birth for a man is 70 years and woman is 71 years as per the official figures. It means, when a man and woman lead normal life, the years of widowhood of a woman will be the years by which she is younger than her husband plus one. Thus the problem of widowhood will be eradicated only when our men marry a woman of their age. Men are selfish in this regard who want their woman of much younger age for their own benefit, like a younger woman can give much sexual pleasures to them, older man can get physical and other support or help by a younger and physically stronger woman etc. And when her old partner dies she is cursed to suffer widowhood.

This act is a welcome step in this regard, howsoever insufficient it is. Widows are invariably treated like inauspicious objects for the rest of their lives and many of the times they are thrown out of the house. The level of emotional, physical and economic hardships they suffer is just inexpressible.

Despite all the shortcomings, the act rightly seeks to cover those women who are or have been in a relationship with the abuser, where both parties have lived together in a shared household and are related by consanguinity, marriage or a relationship in the nature of marriage, or adoption, in addition relationship with family members living together as a joint family. In brief, Woman's right to a secure housing, is the most important aspect of this act, because it provides them this right even if they do not have any title or rights in the household. It is certainly an upgradation of our civilization, and let us hope, we do not find a hapless woman roaming in streets or without a shelter in future.#