The promise of progressive laws like the Domestic Violence Act seems to be shrinking with insensitive rulings from the higher courts
Around March 8,celebrated as International Womens Day the world over,it has become a habit to focus on womens empowerment. For us in India,it is a mixed bag. We have a woman holding the highest office. The head of the ruling coalition as well as the leader of the opposition are women,and four Indian states have women chief ministers. One-third reservation for women in local bodies has brought a large number of women from economically and socially disadvantaged communities into the political arena.
But on the flip side,the gender gap continues to be dismal. Despite the overall economic growth,India is ranked 112 out of a total of 134 countries in the Global Gender Gap Index for 2010,while countries such as China have made considerable progress. The overall score was partially bolstered by relatively good performances on political empowerment it ranked 25th,but it fell behind in economic participation and opportunity (125th),educational attainment (116th),and health and survival (128th). The declining sex ratio,dowry-related murders,suicides by women and increasing number of rapes in the country have earned us the disgraceful reputation of being one of the most dangerous countries for women to live.
The sex ratio for children in the age group of 0-6 years has come down to 914 girls per 1,000 boys. For Mumbai,it is even worse with 892 girls. In 2009,around 8,363 women were killed for dowry in India,the largest number in South Asia. The actual number of women who died in their marital homes far exceeded the official records.
The recently-enacted Protection of Women from Domestic Violence Act,2005,held great promise. Defining domestic violence in the widest of the terms to include physical,emotional,economic and sexual violence,the Act had promise of safety,security,shelter and economic independence. (One of its most important safeguards was its insistence on a woman’s right to reside in her marital home,even if she was not a co-owner.) But the promise that the state will provide the infrastructure for easy access through simple procedures appointing protection officers who would support the woman,file the Domestic Incidence Report on her behalf and also help her with the legal process has remained unfulfilled. Some states like Maharashtra have only given additional charge to tehsildars and child probation officers who are not equipped to do this work. No money is paid to NGOs designated as service providers and no public hospitals have been designated under the Act to give immediate support to victims of violence. As a result,only a few women are able to approach the court: most women in Maharashtra are represented by private lawyers who charge exorbitant fees. Just recently,a magistrate court in Mumbai refused to grant interim maintenance to a Muslim woman under the Act on the basis that she declined the husbands offer of reconciliation,despite evidence being produced of the long history of physical cruelty.
The wide scope of the Act has been systematically curtailed by rulings of the higher courts. In an adverse ruling in 2007,the Supreme Court held that a woman does not have a right of residence in the premises owned by her in-laws. This ruling declined to give credence to the cultural norm where the married son is expected to live with his parents and marriage alliances are made by elders in the family depending on the economic status of the family rather than the groom. In yet another scathing judgement in 2010,the Supreme Court addressed women in live-in relationships as mistresses and keeps and denied them maintenance. So instead of widening the scope,the judiciary has attempted to constrain the scope of this Act.
Another ruling of the Bombay High Court,delivered recently,curtailed the right of married daughters in their parental homes. The judge commented: When a daughter gets married and leaves the house of the father to reside with her husband,she ceases to be a member of the family of father… After marriage when she goes to the house of the parents,legally she is only a guest in the house. This strengthened the traditional notion that the daughter is paraya dhan. It is this cultural framework that provides the basis for sex-selective abortions in the country.
Nevertheless,reforms within family laws have consistently attempted to grant women right of inheritance and residence in their parental home. For instance,the amendment to the Hindu Succession Act in 2005 rendered the Hindu woman an equal sharer in the ancestral property of her father and awarded her a right by birth similar to that of her brother. The amendment also removed the earlier restraint upon a married womans right of residence in her parental property. Similarly,the Protection of Women from Domestic Violence Act,2005,secured the right of women to reside in their parental home. Both provisions aim to secure for married women a legal option which will make them less vulnerable in their matrimonial home.
The Bombay HC judgement seems to be oblivious of these progressive and pro-women legal trends. It will serve to undo the gains of these reforms and push women to the brink when they are subjected to humiliation and abuse in their matrimonial home.
The blame for this dismal state must squarely be laid at the doorstep of parental families. It is they who do not want to give birth to daughters,want to marry off their daughters at a young age and deny them the chance of getting professional education. It is they who do not wish to give property rights to their daughters and prevent them from returning to the natal family even when they face acute problems in their marital homes. It is they who prevent girls from choosing their own life partners in the name of family honour. Unless we focus on this problem,statistics on violence against women will continue to be dismal.
Flavia Agnes is a womens rights lawyer and director of the Mumbai-based organisation Majlis,which offers legal assistance to women