Do We Need Gender Biased Laws: Domestic Violence Act

Source : http://www.legalsrviceindia.com
Author : sanjana
Published on : June 14, 2011


  
sanjana's Profile and details
Sanjana Mittal I am a student of fourth year in Symbiosis Law School.

Do We Need Gender Biased Laws: Domestic Violence Act

I am the banner and the head, a mighty arbitress am I: I am victorious, and my Lord shall be submissive to my will.
Rig Veda(Book 10)

The mentioned abstract from the most ancient source of Indian society, explicitly describes the enthralling glory cherished by the women of the era.

India has a great history and heritage to boast about. A major part of this has been expatiated upon the position of the women; though, the status has often been vacillating. Initially daughters of Vedic era were nurtured with love and affection but the innumerable invasions obliterated the culture. There was a considerable downfall in the socio-cultural and legal status of women. In the modern era few attempts to curb the barbaric attitude were made, but the initiative was not welcomed. Though, 62 years down the row, tables have turned. Sexual Discrimination has become despicable and punishable. The reforms have been possible only because of the legal initiatives. Various legislations and laws passed in the recent years have been instrumental in strengthening the position of women in society. Not only provisions favourable to women were incorporated in the Constitution when it was framed but various legislations like Dowry prohibition Act 1961, The Equal Remuneration Act 1986, The Hindu Marriage Act 1956, The Hindu Succession Act 1956, The Muslim Women (Protection of Rights on Divorce) Act, 1986, the commission of Sati (prevention) Act 1987, Protection of the Women from Domestic Violence Act 2005 have been introduced from time to time as required. Separate sections have been incorporated in the Indian Penal code, which deal with the offences committed against women. Though, such attempts have often been condemned and criticized as being gender biased and violative to the right of equality; but, the truth is that even such specious arguments cannot justify why daily news papers are coloured with articles on crimes committed against women, or why every another day dignity and integrity of a woman is sacrificed to meet an insatiable demand of the patriarchal society. Had the laws already implemented been executed in their letter and spirit, India would have been a different place to live in. Thus, it is much evident that the need of the hour is the stricter execution not the abolition of gender biased laws.

Indian Judicial system owes its existence primarily to customs and traditions, so do the discriminatory measures. Civil cases dealing with marriage, inheritance, divorce, succession, adoption, guardianship and maintenance are governed by personal laws of the communities. Often these personal laws give an inferior position to the women. Thus it can be happily contended that when the sacred laws only consider the women weaker and inferior then how can the neonate legislations raise them to a higher status? But, then shouldn’t we look into the actual sources of all these laws? Vedas are the oldest and the most sacred texts of the Hindu community. Nowhere in these texts is it mentioned that women were any less than men. They were not forced to sit behind four walls and confine themselves to household chores, instead they received education, took part in Shastrartha(debates), observed Brahmacharya and Upnayana and some even went to the battle field with their husbands. Women like Gargi, Maitri, Apala, Ghosha, have gained eternity. They were given equal legal rights and enjoyed equality of status unsurpassed ever since. A man was considered to be incomplete without his spouse and she was known as his ‘Ardhangini’. If this is basis of original Hindu society, then where is the space to contest the present day laws which are striving hard to help women regain their lost glory and position in the society?

Gender biased laws aim at upliftment of the female gender. But this does not mean that it curbs the prospects of the opposite sex. The objective of such laws is to secure women from any inhuman treatment, cruelty or injustice which they are often subject to and to punish the wrongdoer. The efforts to do so are not novice in nature; instead owe their gestation to the brains of the Constitution drafters. Article 15(3) of the constitution empowers the legislature to make special laws for women and children, and such laws are not considered discriminatory prima facie. In cases like Yousuf Abdul Aziz vs. State of Bombay, where provision of IPC concerning adultery, which punished only the male participant and not the female, or, Government of Andhra Pradesh vs. P.B Vijaykumar, where reservations upto 30% were made for women in State services, it was contended that the special provisions made for the women were unconstitutional and discriminated on basis of sex, thus contradicting article 14and Article 15(1) which promote equality. The court here upheld the supremacy of Article 15(3) over other articles and validated the legislation. This article is the womb of the future gender biased legislations.

Presently, one of the many evils faced by the women is of dowry death. Marriages are said to be made in heaven, true, but very often lives of young girls are turned into hell for not bringing in sufficient dowry. They are subject to brutish treatment by in-laws and husband and are murdered or coerced to commit suicide. Here creeps in the need of special gender biased laws. In 1961, Dowry Prohibition Act was passed to control and eradicate the menace of dowry rampant on large scale. Later it was replaced with Dowry prohibition (amendment) act, 1984. Sections of Indian Penal code deal on similar footing. Section 304-B of IPC punishes the husband and his relatives if dowry death, has occurred within a period of 7 years of marriage. Section 498-A is wider and makes cruelty or harassment of a married woman punishable, with no time period as a limit after which or within which the offence must have been committed.

The mentioned sections dealt only with offences against married women. Thus came into picture the Domestic violence Act, 2005. This act is not only restricted to marital context, but it extends its protection to other household women also. The Act defines ‘domestic Violence’ as For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Thus,it is a much wider act because it comes into action not only on abuse but also on the threat of physical, sexual, verbal, emotional or economic abuse. Unlike Section 498 of IPC, it makes sure that the victim, if wishes, has the right to stay in her matrimonial home and then continue with proceedings. Another favourable point is that the act is retrospective in character. Thus action can be brought even for the crimes committed before the execution of the act. The Act also sets up a provision for appointment of Protection officers who would assist the victim in filing the case before the magistrate. Moreover, the aggrieved can file a simultaneous complain under, Section 498 of IPC.

Domestic Violence Act also reduces the scope of misuse, because, it defines all the offences in detail and is not left to any discretion of the judges. Thus, coupled with efficient executive machinery it can be ensured that the act is not misused in the form of fake cases against men. Thus it does not work as anti-men act but only favours women.

Gender biased laws only ensure that women are given the position which they deserve. For example, where earlier women had no right in the ancestral property, now laws such as, Hindu Succession Act,1956 ensure that women have equal rights in the coparcenory property; the commission of Sati (prevention) Act 1987, which makes the inhuman burning of a woman alive on the funeral pyre of her husband cognizable; Equal Remuneration Act 1986, which ensures equal pay for equal work without discrimination on the basis of sex; Laws such as Medical Termination of Pregnancy Act, 1971 or Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)Act, 1994, prevent the misuse of technologies to determine sex of foetus so that female foetus can be aborted, even if the mother wants the child; laws such as Indecent Representation of Women(Prohibition)Act, 1986, or Suppression of Immoral Traffic in Girls and Women, 1956, which keep in check the sexual offences against women etc., ensure effective implementation of the Fundamental Rights granted to one and all. By preventing heinous crimes like female infanticide, dowry deaths, domestic violence, rape, commission of sati the laws enforce women’s right to liberty and lead a life with human dignity. Sometimes precedents by the court also act as legislations, as it happened in the case, Vishakha vs. State of Rajasthan, where guidelines were laid about the measures to be taken by the employers to ensure the safety of women employees. For ages women have been treated as animals and male child reproduction machines. These laws only give them the strength and support to fight back the injustice and not always be on the receiving end.

Such efforts by the Court and the Legislature instead of being obstructed need to be applauded and supported, so that they achieve their objectives.

Recently, a lot has been boasted about the accomplishments of women in many spheres. We gaily celebrate the success of those handful, and happily accept the fact that the glass ceiling which once existed is now broken. But this happiness is ephemeral. If one out of the hundred women gains fame or success in any field can we term it as real equality? What happens to the rest ninety nine? Just because we have one Mrinal Pandey, or one Sania Mirza can we really forget about hundreds of the dreams which are left unrealized so that they can take care of their siblings? Does success of one Indira Nooyi justify the crushing of career prospects of other hundreds of women so that they can cook two meals a day and grow their children? Just because some women have the opportunity to cultivate their talents into their bastions, it doesn’t mean we have achieved the objective of gender equality. Here, if the gender biased legislations come into play and prevent men from causing hindrance to the economic opportunities of women or secure the dignity they deserve, back to them, can they be considered as anti- men laws? These laws do not harm any part of the society in any way; they just give women their dues.

If the existence of these laws can be contested then probably the very existence of the Judicial structure should be questioned. Laws have always stood up as the guardians of the right and the needy, not the wrong or the mighty. Laws emanate with the needs of the existing social structure. Today, people may not fear traditions, but they do fear Laws and if a pertinent concept can be established by means of certain gender biased laws, the laws should not be arraigned as discriminatory.

Fight for Gender equality is not a fight against the men but is a struggle against the constricted mentality of the society, which hinders its own progress and the obsolete traditions and customs which feed it. If in this battle of equality gender- biased laws act as shields and weapons is it morally and socially correct to strike them down? No, at the end of the day its not just one section of the society which is benefitted but is a collective success.

As for the contention that gender biased laws are discriminatory in nature as they violate the very essence of equality of Article 14, the article in question establishes ‘equality among equals’, and as of now the female section of the society is definitely not the equal footing with men. So the laws do not violate right to equality either. Moreover, these laws are not forever. The day no cases of dowry death, rape, sexual harassment at work places, female foetocide, and other such offences related to women are reported, all gender biased laws can be repealed. Once the objective of a fear- free society has been achieved they will have no relevance and requirement. The Gender biased laws have definitely improved the position. Society has begun to accept them as not as a mere object kept behind the four walls, enhancing the beauty of the house, but as a ‘Karma’ capable of living a dignified life and taking part in worldly activities. But

‘ Woods are lovely, Dark and Deep;
And I have, Promises to keep;
And miles to go;
Before I sleep;
And miles to go;
Before I sleep.’

We still have a huge responsibility to apprise, the still oblivious large section of the society, of the bane it possesses. Gender biased laws have relevance and need to be upheld till the journey to an equlitarian society is successfully accomplished. “Yathra, Narayanthya Pujyathe Raman The Tatra Devatha”, has been the culture of our society and the girls have been worshipped and held in high esteem, so, the laws which establish the same, are germane and should be upheld.
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# Now, amended as Dowry Prohibition (amendment) act,1984.
# Now, amended as Hindu Succession Act, 2005.
# Art. States that-Nothing in Article 15 shall prevent the State from making any special provision for women and children.
# AIR 1954 SC 321
# (1995)4 SCC 520
# Art.14 states that, The State shall not deny to any person equality before the law or equal protection of laws within the territory of India.
# Art. 15(1) states that, The State shall not discriminate against any citizen on grounds only of, religion, race, caste, sex, or place of birth or any of them.
# Inserted by Dowry Prohibition (Amendment) Act, 1986(43 0f 1986)9w.e.f. 19-11-1986)
# W.e.f. 26th October 2006.
# Section 5 of DVA,2005.
# Now Amended to Hindu Succession (Amendment)Act,2005.
# (1997) 6 SCC 241.

Authors contact info - articles The  author can be reached at: sanj@legalserviceindia.com