The law lies in the details
While supporting the Domestic Violence Act, and also the urgent need to operationalise safeguards for oppressed women, my purpose here is to comment on the overkill in the language of the legislation, comments Abhishek Singhvi.india Updated: Dec 06, 2006 03:15 IST
The Protection of Women from Violence Act 2005 (Domestic Violence Act) is a most significant legislation. Together with the Acts for rural employment, right to information, tribal rights and the yet-to-be-passed Old Persons Care and Protection Bill, it reflects the progressive approach of the UPA government in using the law for social change.
While supporting the Act, and also the urgent need to operationalise safeguards for oppressed women, my purpose here is to comment on the overkill in the language of the legislation. Law, legislation and judicial adjudication are all about the nuances of language. Unless the scope and width of the Act is reined in, it would lead to such interpretive acrobatics that the core of the Act may get nullified.
To begin with, the definition of ‘domestic relationship’ demands a relook. The Act defines it as a “relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”. The Act does not specify the length of time which the ‘aggrieved person’ is required to have lived “at any point of time”. A disgruntled ex-girlfriend cannot be intended to be the object of benevolence of the Act. Faced with this generalised phrasing, it would be entirely reasonable and, in fact, desirable, for courts to interpret these words to mean either a current live-in relationship or an immediately preceding one.
The phrasing contemplates sisters, mothers, sisters-in-law, grandmothers and mothers-in-law apart from wives and live-in companions. Since this law is a first in India and is really intended to deal with domestic violence in a family setting, I wonder whether, in its first phase, the Act should have included all live-in relationships also. In such avant garde legislative measures, it may be wise to hasten slowly. The working of the Act within a formal setting of defined relationships would have provided a basis for inclusionary or exclusionary amendments later.
Also, will lesbian relationships be covered in the broad sweep? It is arguable that such partners are “related through a relationship in the nature of marriage…”or at least not explicitly excluded. Homosexual partners are excluded since an aggrieved person under the Act can only be a woman.
This, in itself, may lead to some interesting constitutional challenges to the legislation. For example, if lesbian relationships are interpretatively subsumed, would the Act be discriminatory in not applying to homosexual relationships? Indeed, would the Act be liable to fall foul of Article 14 in not providing a remedy for aggrieved men at all? Reasonable deviations in favour of women — repeatedly recognised by judgments to be a vulnerable section of society — may justify such favoured treatment.
In the absence of precise language in the definitions of the Act, interpretative pitfalls are manifold. For example, if a woman not related to the respondent either by marriage or consanguinity nevertheless lived with him/her as a friend for decades but is able to prove the absence of any sexual relationship altogether, she would not be able to invoke the Act.
Juxtaposed with this, the definition of ‘shared household’ in Section 2(s) suggests that a person who has had a live-in relationship, but wants to break it to marry another partner, would have to reckon with the continued residence of his former live-in companion. Physical proximity through compulsory continuation of residence might mean, in a manner rather bizarre, that an ex-girlfriend can live with the spouse in the same ‘shared household’ through compulsion of law! This may or may not relieve the woman’s oppression but it would certainly create upheavals of an unthinkable kind.
We cannot ignore the structural realities of India. The use of wide, imprecise and subjective legislative language, coupled with a venal or malleable police force or enforcement machinery, can spell doom and destruction for any self-respecting and law-abiding male citizen of this country. Add to that, motivated or malafide invocation of the Act and we would end up with a remedy much worse than the disease.
This is not to suggest abrogation of this legislation. But a fair balance for different sections of society must be achieved. This alone is the best guarantee for the success of any legislation.
Abhishek Singhvi is Senior Advocate, Supreme Court of India, and Congress MP firstname.lastname@example.org
First Published: Dec 06, 2006 00:14 IST