October 26, 2007 marked the first anniversary of the passage of the legislative abomination called PWDVA 2005 (Protection of Women against Domestic Violence Act). On that day, a posse of dedicated volunteers from the rapidly growing Save Indian Family Foundation staged a protest at Jantar Mantar, New Delhi, opposing the draconian provisions of this malicious piece of legislation.
Before the radical feminist propaganda machine rolls into high gear branding Save Indian Family as a misogynist, patriarchal, male chauvinist organization promoting violence against women, let me make it clear to all the readers – Save Indian Family foundation opposes all forms of domestic violence. SIFF is not opposed to legislation to protect a spouse from intimate partner violence. What SIFF is opposed to is the extremist legislation whose goals are more of fulfillment of radical feminist agendas rather than the true protection of vulnerable women. In the following paragraphs, I will illustrate how this legislative abomination called PWDVA, is more about establishing a radical feminist hegemony in Indian civil society than about protecting women from violence.
The period preceding the passing of this extremist legislation was characterized by the careful orchestration of a large scale propaganda, both in national and international media about the prevalence of domestic violence against women in India. The UN was co-opted to provide the cover of legitimacy to the radical feminists’ fictitious accounts. Some of the headlines read – “75% of Indian women subjected to Domestic Violence – UN Study”, implying a whopping 75% of the men in India are perpetrators of Domestic Violence. Many international media carried this headline, and not one sensible elder either from political parties or from the ranks of the government had the courage to condemn this fallacious propaganda or at the least challenge this study. The task eventually fell upon the volunteers of SIFF, who in coordination with other international men’s groups worked to set the record straight. The result was a retraction by the Washington Times.
Over the last one year, there were several criticisms heard from both the proponents and opponents of this draconian piece of legislation. Proponents claim the implementation is lax, not enough awareness exists about the provisions of the legislation and that the police and judiciary are not sensitized. On the other hand, the opponents claim that the law was badly drafted and it is difficult to implement it. Also, they claim there is ample scope for misuse of the provisions. One such erudite article was written by Sri R.K.Gauba and you can find the link here.
One rarely hears about any analysis of the sheer magnitude of male hating malice and callousness packed into this piece of legislation. PWDVA was drafted intentionally to cause maximum amount of disruption and chaos in the society. The language in the act was intentionally left ambiguous, so the doors are left open for extortion and blackmail. I will elaborate on this further down. The passage of this legislation in our parliament is a reflection of the complete control the non-governmental radical feminist groups like lawyers collective, Council for Social Research have obtained over the legislative agenda and the legislative process of our country. In the following paragraphs, I intend to highlight some of the more insidious provisions of this law.
Definitional nightmare
One of the foundations of any sensible legal regime is, the predictability and reasonableness in interpretation. To that end, definitions must be made parsimoniously, so that as little room is left for guesswork or distorted interpretations. In a stroke of deliberate callousness, the authors of this legislation came up with definitions that would be a nightmare in any legal proceeding.
To illustrate – while defining the right to residence, they included the words “have lived at any point of time”. There is no conception of when, where, how long, contained anywhere in the act. The second example is the definition of “aggrieved person”. Firstly, the aggrieved person can be only be a woman, and the one who is or has been in a domestic relationship. Taken together, these two definitions effectively leave the door open for any unscrupulous woman to implicate any man whom they have successfully induced into some sort of association.
Every word in the definition of the term Domestic Violence is dripping with male hatred of radical feminists. The authors of this legislation have given away unadulterated picture of their true agendas in this definition. I leave it as an exercise to the reader to go read for themselves the definition of Domestic Violence in this act. I just want to highlight one snippet here “any act, omission or commission or conduct”.
Wow! “Any act, omission, commission or conduct”!!! I challenge the morons who authored this idiotic definition, to show one grown up human being (either a man or a woman) in this world, who would not be guilty of having committed domestic violence as per this definition. Given these open ended definitions; one can only surmise what were the true intentions of the authors of this legislation. Was it meant as a true protection from violence for a victimized, helpless woman; or as a weapon of blackmail in the hands of a marauding, vitriolic, supercilious, upwardly mobile, short tempered urban termagant?
Complete marginalization of male in a relationship
The most significant aspect of this whole act is – the systematic destruction of any semblance of the rights of men. Only a male can be accused under this law. Once accused under this law, there is nothing, let me repeat, literally nothing in this act that gives an accused male (the so called respondent) any chance of successful defense. All proceedings are summary – confiscation of his assets, dispossession of his rightful residence and summary penalties etc are all formalized.
Radical feminists like Indira Jaisingh would have you believe that the basis for DV act was respect for human rights of the individuals concerned in a domestic relationship. But you cannot confer rights on one section of the citizenry by removing the fundamental and human rights from another section of the citizenry. This is exactly what the DV act accomplishes.
Lack of proportionality
One major, and perhaps very intentional, flaw in this legislation is the lack of proportionality. In every country in the world, partners in a relationship accumulate rights and responsibilities based on the duration of the relationship – the longer the duration, the higher the accumulation of such rights and responsibilities. Not so under PWDVA of India. Any woman who seduces a man into a day or two of relationship can claim Domestic violence if the man refuses to continue his relationship with the whore. She has same rights under this legislation as the wife of twenty years of a man.
Civil law charade
Another ostensible defense we hear from the proponents of this legislation is that this is a civil remedy. I want to roundly condemn this charade of civil remedy propagated by the feminist propaganda machine.
If you read through the legislation, the proceedings to obtain a protection order are summary and give not much opportunity to the male to either contradict or to have a defense in open court. Once all his defenses are robbed off, and a protection order is made, he is obliged to follow that order. Any violation, intentional or unintentional, is a cognizable and non-bailable criminal offense. This charade of ‘civil law’ is actually a mechanism to co-opt the state machinery in the blackmail scheme. Here is the subtle threat – pay up now, before I convert this into a criminal case.
With 498a, they did not have that opportunity. There was only chance – you file the complaint and hope for the best. The drafters of PWDVA have now rectified the “problem” with the 498a by legislating a so called “civil remedy”, which can be turned into a criminal offence at the convenience of the lady, for most effective extortion.
Intimidation of Judiciary
But for the existence of independent higher judiciary, one can only wonder where the radical feminists would have taken our polity to. As the judiciary encounters more and more outrageous cases of exploitation like the “Batra vs Batra – 2006” case, they have taken a balanced approach in interpreting the badly drafted laws to preserve harmony in the society while ensuring genuine victims receive justice. Supreme court judgment in Batra vs Batra 2006, is a great example how the courts are performing this balancing act. Let me quote from the above Supreme court judgment – “It is well settled that any interpretation which leads to absurdity should not be accepted”.
Many provisions in the “poorly drafted” DV Act do lead to absurdities. It is now befalling on the courts to give sensible interpretation to the most pernicious provisions in the act to forestall chaos in the society. Most litigation in our country is fought in open courts under an adversarial and rule based system we inherited from the English. Most courts pronounce judgments based on the facts of the case coupled with sound reasoning and sensible interpretation of legal provisions. Judgments in the cases of DVAct or Dowry Prohibition act or 498a are no different.
When the apex court of our country made a criticism that the law was poorly drafted, it did not make a cavalier statement without basis in fact. Instead of accepting the fact that the law was indeed poorly drafted, the likes of Indira Jaisingh and Brinda Karat have taken to acts of intimidation of the judiciary. Indira Jaisingh as penned two articles, one titled “Crying hoarse, not wolf”, and “Family against Woman”. Line by line refutation of both of these inane rants can be done, but serves no purpose. Suffice it to say, both these articles were written with an oblique motive of influencing or intimidating the judiciary to tow the party line. This approach is not new to Indira Jaisingh, who led several successive, but unsuccessful, attacks to smear the name of Justice Shiv Narain Dhingra.
The feminist collectives have very successfully and effectively rigged the political and legislative processes. However, they could not complete the process by subverting the judiciary as well. Not that they did not try, and to some extent, they may have even succeeded too. But, still one can expect (even an accused male) semblance of justice as he reaches higher echelons of the judiciary. We hope that higher echelons of judiciary will continue to uphold the principles of fair play, constitutional and fundamental rights even in the face of intimidation from corrupt and radical feminists. Any concerted attacks on the judiciary by the radical feminists must be vigorously opposed by all sections of the civil society.
Epilogue on Right to residence
Right to residence is one of the most ill-drafted and pernicious provisions in this act. The following modifications must be incorporated into the act immediately –
a) The SC guidelines on Shared household as pronounced in Batra vs Batra must be formalized and incorporated into the act. Shared household cannot be the self acquired property of the parents of the male in a domestic relationship. Often, a couple invests a whole lifetime in acquiring s property so they can spend their twilight years in peace and harmony. An irate daughter-in-law in a strained relationship with her husband should not be allowed to rob them of that.
b) Joint family property – Often Indian joint families across multiple generations, both vertically and horizontally, tend to live in a joint family property which may consists of only three or four rooms. I was witness to many such families. If an unscrupulous woman is allowed a residence order in such a joint family property, it will result in the dispossession and displacement of multiple members of the joint family. The needs of residence of an estranged wife or a live-in can surely be met without necessarily dispossessing countless others.
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