The recent judgment of the Supreme Court in Harsora v. Harsora on the Protection of Women from Domestic Violence Act, 2005 (PWDVA) is of great concern as it deletes the words ‘adult male’ in Section 2(q) of the Act.
The PWDVA is a gender-specific law enacted to protect women against domestic violence at the hands of men. The core provision in this law is that complainants can only be women. The law also restricts under Section 2(q) that complaints can only be filed against adult males, or their relatives, who could be women. But it cannot be filed solely against the relatives of the husband. Section 2(q) states: “‘Respondent’ means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”
In this judgment, the constitutionality of Section 2(q) was challenged. The court, while referring to domestic violence, held that “it is clear that such violence is gender neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Section 3, therefore… seeks to outlaw domestic violence of any kind against a woman, and is gender neutral.”
Reality of domestic violence With utmost respect to the Supreme Court, it is absolutely incorrect to state that domestic violence is gender-neutral. It is not. The world over, a vast majority of domestic violence is experienced by women at the hands of men. It is not a random event of violence but is a consequence and a cause of women’s inequality and is linked to the discrimination and devaluing of women. As per the National Crime Records Bureau, reported cases of domestic violence in India went up from 50,703 in 2003 to 1,18,866 in 2013. These are all cases of domestic violence against men. The U.K. Violent Crime and Sexual Offences study of 2011-2012 reported that 80 per cent of offenders in domestic or sexual violence were male.
In 1983, Section 498A was introduced in the Indian Penal Code (IPC) and for the first time made domestic violence to married women a criminal offence. Section 498A is only against the husband and husband’s relatives because it recognised the gendered nature of the crime. When the PWDVA was drafted, the question as to whether the definition of ‘respondent’ should be restricted to men or should be gender-neutral was heavily debated and finally Section 2(q) was drafted to keep it consistent with Section 498A.
The judgment does not consider this history and background of domestic violence legislation. It goes on to declare that even the word ‘adult’ in Section 2(q) should be deleted, because a 16- or 17-year-old can also cause domestic violence. The court reasons that in the context of the object of the PWDVA, there is a “microscopic difference between male and female, adult and non-adult” and hence these words should be deleted.
Thrust on formal equality The entire thrust of the Supreme Court’s decision is ironically on the principle of equality because it restricts the reach of a beneficial statute meant to protect women against all forms of domestic violence whether by men or by women, adult or minors. Our Constitution, however, has interpreted equality to mean substantive equality which, as elaborated by Oxford University professor Sandra Fredman, has four dimensions: redressing disadvantage; countering stigma, prejudice, humiliation and violence; transforming social and institutional structures; and facilitating political participation and social inclusion. Therefore, formal equality of treating all persons equally as ‘respondents’ is not sufficient and we need to look at the disadvantage and violence faced by women at the hands of men. The same principle of equality also mandates in Article 15(3) of the Constitution that special provisions can be made for women and children and the PWDVA was enacted as a special provision for their protection. It does not need to be gender-neutral.
While the judgment relies on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, where there is no restriction on the respondent being male, it surprisingly fails to observe the criminal offences of sexual harassment, stalking, voyeurism and rape under the IPC which are all gender-specific and against men. This does not mean that men may not be victims of violence, but when women are victims of domestic violence, evidence shows that such violence is largely perpetrated by men.
With this judgment, there is a real danger that the PWDVA would be used against women and minors and not against the real perpetrators of domestic violence. It could lead to a further dilution of the PWDVA and also dilute other women-centric laws. In her 2015 Report, the UN Special Rapporteur on Violence against Women, Rashida Manjoo, pointed out that the shift in domestic violence laws from gender-specificity to gender-neutrality is regressive as it disregards the need for special measures that acknowledge that women are disproportionately impacted by violence. The Supreme Court’s decision will have serious repercussions on the lives of women in India.
Jayna Kothari is Executive Director, Centre for Law and Policy Research, Bengaluru.
