WUNRN
Smita
S. Pendharkar
April,
2007
Domestic Violence Act (2005,
In India the case of ‘men’s laws and women’s
lives’[1][1] is routinely justified under the pretext that “western” human rights
paradigms are imperialistic in nature and reminiscent of colonial assertions.
Post-independence, grassroots movements have regularly sought to distance the
emergent democracy from its colonial legacy, however, the Indian judiciary,
while cautiously denying its lineage, has trudged forth with the skeleton of a
colonial constitution while maintaining its commitment to total democracy.
Today, cleverly dressed personal laws with romantic pluralistic overtones
convey the patriarchy’s underlying agenda to regulate
women’s bodies and their agency. The vestiges of Victorian
social order permeate the secularity of
The DV Act (2005) is an
expression of the legislative body’s understanding of the changing social,
political, and economic landscape. With the women’s question taking center
stage the pressure to democratize legal provisions is of the essence. Conscious
of the existing system’s inability to wholly divest itself of the colonial discourse on selective equality,
liberty, and justice, the male orthodoxy has extended the Rights continuum to
expand the constitution’s capacity to, at least, textually afford all of its
citizens equal rights and protections. The troublesome passage of this Act
suggests that several cultural and religious norms were de-centered during its
conceptualization. Relevant to this de-centering is the sub-continent’s
historical acquiescence of ethnic and religious diversity which
post-independence translated into special provisions protecting and/or
preserving customary practices even when they were in violation of women’s and
dalit rights. The Nehruvian Uniform Civil Code (UCC) with its potential to
secularize Indian social and political fora proved too controversial with its
directive principle to supersede the right of citizens to personal laws based
on their religion or ethnicity. Independent India chose to identify with a
secular constitution which maintained religious laws as a recourse for crucial vote
banks: the Hindu majority and Special Minorities. The “secularity” of
Briefly, the Domestic
Violence Act (2005) articulates that women, regardless of the nature of their
live-in relationship, are entitled to legal protection from domestic abuse. Essential
to this Act are three key developments: (a) The change in live-in legalities as
symbolic of the paradigmatic shift towards more inclusive and progressive
legislation entitling all women, not just those who adhere to hetero-norms, to
the basic right to protection from abuse; (b) the multi-dimensional
understanding of domestic violence and its myriad implications for women; and,
(c) a departure from the orthodoxy of private-public binaries where marital /
intimate rape and violence fall under the private domain. However, the romance
of this Act is short-lived as committees and legal experts, mostly
anti-feminist, congregate in their shared apprehension of its anti-men
language. Casting a wide net over women and their perceived vindictive
psychology, critics of the Act claim that its loose language has opened the
flood gates for false cases against men and their families. The court’s backlog
of domestic violence cases has been attributed to the Act’s accommodation of a
perceived culturally degenerative modernity, not its supportive, dynamic
pro-women / victim reasoning. The urgency to re-examine the Act is a symptom of
gynephobic attitudes infecting judicial processes. In August 2007 the Ministry
of Women and Child Development (WCD) set up a panel to review the Act and
identify the loopholes that were giving women an undue advantage over their
alleged abusers. The committee, comprising mostly of high profile women
lawyers, was directed to accept suggestions from men’s organizations. Not
satisfied with the censuring of one Act, the ministry keenly set up another
panel to reassess the oft-criticized Dowry Prohibition Act (1961) and impending
Sexual Harassment Bill. Any glimmer of hope, it seems, is suffocated by a
pathologized patriarchy raring to promulgate, through customary laws and
religious propaganda, the idea that women are imprudent creatures eager to
exploit victimhood.
Birthed with the
intention of democratizing the law and policy-making process, the Act in its
preliminary draft confirmed the judiciary’s resounding effort to, “on being
prima facie satisfied that domestic violence has taken place or is likely to
take place”[2][2], extend all protections to women citizens.
Initially optimistic of the enactment, pro-women advocates observed the Act as
a tool to flatten the gender hierarchy in legislative tabling processes. The
Act engaged in an inclusive discourse by destabilizing the male hegemonic order
while calling for the inception of a new socially harmonious and equitable
democracy. Post-enactment however, unable to contain the disturbance within
male orthodox polities, the governing body has launched into prosecutorial
attacks against the Act, its advocates, and beneficiaries. Media hoardings
portray the Act as a veiled threat against men, the Indian family, Indian
cultural norms, and the nation’s patriarchal heritage. Grounded in the simple
idea of equality for women, the Act has sought to dispel
The erosion of
In the Indian context, it is imperative to scrutinize the colonial
legal code that has calcified within the last half century. Recent
constitutional amendments have been determined by a body politic that does not
represent the needs of women. The micro resistances to caste-based
discrimination secured the DalitBahujan constituency the Protection of Civil
Rights Act (1955) and Prevention of Atrocities Act (1989). Inciting a lexical
movement whereby caste practice became a non-bailable offense, Dr.Ambedkar’s
historic rejection of Hinduism and Manushrama was received as revolutionary.
Comparatively,
Despite having stirred the hornet's nest, the DV Act (2005) is yet in
its nascent stage and little more than a paper dragon. As more questions surface
about it effectiveness and adequacy in addressing gender violence, Indian women
need to evaluate the value of their productive and reproductive labor, their
role as social caregivers, and the realm of their influence in global political
and economic activities. As transnational borders shift to facilitate
(i) the adoption of
a secular constitution has made any difference to the legal status of women? ;
(ii) the transition
from colonialism to constitutionalism in the era of human rights has made any
difference to the rights of women? ; and,
(iii) constitutions
that recognize equal rights make any difference to the institutionalized
private/public divide?
underscore the
universality of women’s inequality, and the failure of emergent democracies to secure human
rights for their female citizens. Shirley Chisolm captured the essence of this
struggle from embryo to womanhood when she said, “The emotional, sexual, and psychological stereotyping of females
begins when the doctor says, ‘It's a girl’.”
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[1][1] From the title of
Jaising, Indira (ed.) (2005). Men’s Laws
Women’s Lives.
[3][3] Constitution of
____________________________________________________________________
Smita Shashank Pendharkar - smita.africa@gmail.com - University of Pennsylvania School of Social Policy & Practice - MSW, Clark University, Center for Study of Social Exclusion & Inclusive Policy & Center for Women's Studies - Tata. Smita Pendharkar is a Research Associate for the Women's UN Report Network - WUNRN.