Save Indian Family Foundation calls on the nation to observe

BLACK DAY

Protection of Women from Domestic Violence Act (PWDVA), commonly known as the Domestic Violence (DV) Act took effect on 26th October 2006. On the occasion of the second anniversary of this highly inhuman and discriminatory law, Save Indian Family Foundation and its sibling organizations call upon the entire nation to observe BLACK DAY and show solidarity by joining our Dharna at Jantar Mantar, New Delhi, on 26th October 2008 from 11:00 am to 1:00 pm.

From the outset, the DV Act has been touted as one of the most progressive legislations passed to empower women in India and to protect them from domestic abuse. The dark secret, unknown to many, is that this law is a clone of Western laws (like the American VAWA) which have not only been utterly unsuccessful in curbing domestic violence against women, but, on the contrary, have become socially harmful legislations that facilitate violence against men, violate basic human rights of men, women and children and promote family destruction. What is worse is that this lethal weapon of social destruction was secretly imported to India, without any debate or discussion on its relevance or pros and cons to the Indian society prior to its enactment.

The DV Act, through its various provisions, not only violates the Constitution of India but also the Universal Declaration of Human Rights and other International Conventions.

The Statement of Objects and Reasons of the DV Act begins with the acknowledgment that “Domestic Violence is undoubtedly a human rights issue and serious deterrent to development”, while citing the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action of 1995. However, the Act consciously ignores a well-established fact that domestic violence is not gender-specific, and that, studies all over the world show that men and women are equally likely to indulge in intimate partner violence.

The DV Act is based on the untenable assumption that victims of domestic violence are always women and that the perpetrator is always a man; while statistics from the National Crime Records Bureau show that in the years 2005 and 2006 alone, nearly twice as many married men (52,483 in year 2005 and 55,452 in year 2006), compared to married women (28,186 in year 2005 and 29,869 in year 2006), committed suicide unable to withstand verbal, emotional, economic and physical abuse and legal harassment.

The Universal Declaration of Human rights states that “men and women,…, are entitled to equal rights as to marriage, during marriage and at its dissolution.” It declares that “all are equal before the law, and are entitled without any discrimination to equal protection of the law”. Article 14 of the Indian Constitution declares that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The DV Act, however, blatantly denies protection to men against any form of domestic abuse.

The Universal Declaration of Human Rights proclaims that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.”  However, the DV Act presumes that the accused man is guilty until proven innocent, thus violating the presumption of innocence and the principles of fair trial guaranteed under Articles 20 and 21 of the Constitution of India, in addition to defying the Universal Declaration of Human Rights.

The DV Act also prescribes many rules of evidence, procedure and trial which are shockingly arbitrary, unreasonable, irrational and discriminatory. The following are a few examples.

• The DV Act assumes that women are always honest victims, and, hence, requiring proof of their claims is unnecessary. Under this Act, the sole testimony of the so-called aggrieved person is enough for the court to conclude that an offence has been committed. This baseless assumption turns the Act into a weapon in the hands of abusive women to perpetrate violence against men and also misuse the law.
• Section 10 of the Act makes a provision for service providers which amounts to delegation of essential judicial as well as investigatory functions to them. Such a provision is completely preposterous and hitherto unknown to law.
• Rule 14 of the DV Act prohibits any defense to be taken by the accused husband or his relatives and the entire procedure prescribed to the so-called counselors is unilateral, one-sided and loaded in favor of the complainant. This provision is in direct violation of Article 14 of the Constitution of India as well as the Universal Declaration of Human Rights.
• Section 20 of the DV Act provides monetary compensation for victims of domestic violence. This Section empowers a Magistrate to order the accused to pay monetary relief consistent with the standard of living to which the complainant claims to be accustomed (irrespective of the earning capacity of the accused). In addition, if the accused person fails to make the payment, the Magistrate can direct the employer or debtor of the accused to directly pay the complainant or deposit the same amount with the court. Commonsense dictates that a victim of domestic violence should be removed from the abusive situation and be sheltered from further violence. By making lucrative provisions for monetary compensation, the law provides enormous scope for misuse by unscrupulous women.
• The DV Act contains provisions which are essentially duplications of several other laws and confers the same protections and rights to women that have been already provided by other existing legislations. For example, a wife who has been allegedly subjected to cruelty by her husband and in-laws is protected both under Indian Penal Code Section 498A, and also under the DV Act. This violates Article 20(2) of the Constitution, which states that “No person shall be prosecuted and punished for the same offence more than once.” The DV Act also makes provisions for a woman to claim maintenance from the “abusive” husband, while two other legal provisions, CrPC Section125 and the Hindu Marriage Act Section 24, simultaneously allow a wife to claim maintenance from the husband.
• Apart from being blatantly anti-male, the DV Act is also anti-family, as it violates the social and legal sanctity of marriage. According to the Hindu Adoption and Maintenance Act, a Hindu wife shall not be entitled for separate residence or maintenance if she is commits adultery or gets converted to another religion, but the DV Act actually empowers a wife to violate marital norms with impunity and also claim residence and maintenance in spite of being unfaithful or converting to another religion. The DV Act also endeavors to grant live-in partners/concubines the same legal status as a legally wedded wife. In many instances, the protections and privileges (maintenance, residence rights, etc.) granted to the live-in-partner/concubine, violate the rights of a legally wedded wife. Such provisions are not only revolting but also destructive to the institutions of marriage and family. The Universal Declaration of Human Rights states, “the family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.” The DV Act, on the contrary, promotes matrimonial disharmony and destruction of family.

In addition to violating family rights, the DV Act also violates a child’s right to the love and affection of both parents. The Statement of Objects and Reasons of the DV Act refers to the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), 1989, which mandates that States shall ensure among other things that in all cases the interest of children is paramount. For reaching a just opinion about the interest of children, it is imperative that a just and fair enquiry be held by the court to assess the competing claims of both parents about the suitability of guardianship. However, Section 23(2) of the DV Act allows for passing of ex-parte orders to take away the custody of a child from the father on the sole basis of the self-serving affidavits of a complainant woman. Thus, the DV Act promotes a fatherless society.

One of the most preposterous aspects of the DV Act is that it violates even the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), the very International Convention that the law is based on. The DV Act openly promotes discrimination against women relatives of an accused man. The Statement of Objects and Reasons categorically states that “whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or female partner.”

Thus, the Act ignores the several instances where a daughter-in-law commits domestic violence against her mother-in-law, sister-in-law or any other females related by marriage. Interestingly enough, the DV Act also favors divorced women and former girlfriends over a legally wedded wife. It supports the encroachment of property by a girlfriend (former or present) at the expense of the right to residence of a man, his legally wedded wife and any other dependent female members of a family. So, in the name of protecting a section of women who may be making true or false allegations, the law penalizes innocent women who are related to an accused man. So much for Elimination of ALL forms of Discrimination Against Women!!!

While the DV Act came under severe criticism from several judicial authorities, legal experts, NGOs and concerned citizens, the Government has not made any efforts to amend the provisions of the law in the interest of fairness, justice, family harmony and social stability. The Ministry of Women and Child Development conducted a Round Table Conference in New Delhi, on 25th June, 2008, claiming to give an opportunity to “men’s organizations” to present their recommendations and suggestions regarding laws pertaining to women. Save Indian Family Foundation and its sibling organizations, which work towards family harmony and true gender equality, were deliberately left out until several appeals were sent to include our representatives in the discussions. The Conference, however, turned out to be only an eye-wash, as the Ministry, eventually, denied the need for amendments in these laws including the DV Act.

In light of all the above facts, and in an attempt to highlight the serious social damage caused by the DV Act, Save Indian Family Foundation and its sibling organizations call upon the entire nation to observe the second anniversary of the DV Act as a BLACK DAY in the history of India. We specifically request all the print and electronic media to show solidarity by joining us in our Dharna at Jantar Mantar, New Delhi, on 26th October 2008 between 11:00 am to 1:00 pm.

On this occasion, we also demand that the following amendments be made to the DV Act to prevent further damage to marital harmony and social stability in India:

1. DV Act should be made gender-neutral and equal protection should be provided to men and women against physical, emotional, verbal and economic abuse.
2. DV Act, like every other law, must be based on the presumption of innocence until guilt is proved. In addition, the DV Act must follow the principle of according a fair trial to the accused.
3. Service providers should not be delegated with judicial and investigatory functions. In addition, service providers and counselors must be persons or organizations who have a track record of working for family harmony, true gender equality, and possess a balanced and educated approach towards serious issues like domestic violence.
4. In order to protect victims of domestic violence from further abuse, they should be removed from the abusive situation and relocated to shelters. Making provisions for monetary compensation to the complainant promotes misuse of the law by unscrupulous individuals. Denying the accused persons of residential rights on their own property violates the human rights of the accused. In addition, a genuine victim who is not removed from the site of abuse is more likely to fall prey to violence again and again.
5. A complainant should not be allowed to claim maintenance under DV Act, as there are two other existing provisions, CrPC Section 125 and Hindu Marriage Act Section 24, which simultaneously allow a dependent woman to seek maintenance.
6. DV Act should not be allowed to contain any of the same protections and provisions granted under any other laws without first repealing those other laws and rendering them ineffective. For example, since the DV Act provides protection to women against cruelty by the husband and his relatives, IPC Section 498A should be repealed with immediate effect.
7. DV Act attempts to legalize live-in relationships, thereby violating laws against polygamy and also disregarding the rights of a legally wedded wife. A live-in relationship, unlike marriage, is not a legally binding contract. Women and men who enter live-in relationships are implicitly accepting the risk of a break-up, whatever the reasons for the break-up may be. Forcing legal interference into a relationship that is legally invalid is simply ridiculous. Therefore, live-in relationships must be removed from the purview of the DV Act.
8. Child custody decisions should be made by a court based on a fair hearing of competing claims of both parents, and unless there is compelling evidence to believe that either one or both parent(s) is/are harmful to the child’s physical and emotional health and well-being, joint custody should be granted to the mother and the father.
9. Persons filing false cases to settle personal scores should be severely punished for misusing the judicial process and blocking the path of justice for genuine victims.

In short, the DV Act should be replaced by a more benign, sensible, gender-neutral legislation that ensures women and men their rightful, honorable place within and outside the home, in order to promote domestic harmony, reduce litigations and prevent legal terrorism and extortion through misuse of the law.