PROTECTION OF WOMEN FROM VIOLATION OF SEXUAL AND REPRODUCTIVE RIGHTS WITH REFERENCE TO DOMESTIC VIOLENCE ACT OF 2005.
Sex and Reproduction are two unique and inseparable facets of spousal relationship. They are one and the same, still as antonymous as between sea and the shore. They are mutually exclusive and inclusive like the two sides of the same coin. Sex is possible without reproduction; reproduction can be possible without sex, in the surge of new scientific inventions. Sex provides the natural impetus for reproduction. The two are intertwined and have inseparable connectivity pertaining to the health of the engaging partners. As health is a precondition for the quality of life as enshrined in Article 21 of the Constitution, the denial of the precondition conducive to attaining this right can be legally redressed through Constitutional remedies.
In matrimony impotency is a ground for divorce. But if a woman is denied sex due to the apathy of the husband, she has no choice to leave the matrimony. If she is denied the excitement of consummation during sex she has no remedy. This is too personal a matter for law to lay its hand on. Denial of sex to the spouse is indirect cause for the commencement of domestic violence. This is a case of emotional abuse which has serious ramifications in family life. If a man can keep his woman happy on bed he is assured of a peaceful home. As between a husband and a wife lack of sexual relations can lead to incidence of domestic violence. Sex is not a mere tool for reproduction as Sex is a rejuvenator of relationships.
Domestic Violence and Other Wrongs:
Domestic Violence is a standalone type of a wrong which evade\s a satisfactory, comprehensive, all-inclusive definition. The unique facet of DV is that it takes place in the intimate relationship, in the apparently safe shared household. Whereas other wrongs are perpetrated, maybe, by a stranger on another stranger. One occurs in the private sphere of life and the other in the public sphere of life. The State is more concerned about peace in society than peace at home.The state cannot allow the delinquent to have his capricious ways as it is disconcerting to the State. The State employs punishment to the sinner to promote deterrence and to have retribution to satisfy the victim. The other aspect is the need of rehabilitation of the offender as he cannot be allowed to freely roam in society. The protection of the victim appears to be the last priority of Criminal Law. The emphasis is on social control through correction, deterrence and retribution. The aim is social security and not the security of the victim alone.
Domestic violence cannot be called a singular, exclusive incident of violence of the perpetrator on the victim. It is a continual infliction of violence by manifold, unknown machinations. The crime of a stranger on another is punishable by law; but the same act if perpetrated by the husband on the wife could be qualified as a crime, is a moot point. Law can take its due course despite the fact that the offence has occurred within wedlock. The attitude of general Law is not gender sensitive to protect the woman. Hence the need and relevance of a gender sensitive law.
In reference to the issues of sexual and reproductive rights the occurrences wherein these rights are denied need not be singular. In wedlock a single incident of violence is condoned; the violence does not stop there. It is repeated in fresh cycles of violence. The woman is in utter helplessness and in a dilemma as to whether leave or not. The recurrence of violence is endemic in domestic relationships. There is no deterrence, no retribution , no correction, owing to nonreporting of the incident.
The wrong of marital rape does constitute a domestic violence in the Act of 2005 or in any of the Indian statute books. This discrepancy between the treatment of Law to the same act in two realms of human life, namely, Private and Public is discriminative and prejudicial to women. Though Indian Law does not treat forced sex as a wrong, the law on Human Rights has made inroads into the private sphere of life. The Law on Human Rights of course has got the voice of International Law criteria, and the same spirit is deeply engrained our Constitution in its Fundamental Rights.
When Sex is viewed from the angle of health rights it has umpteen diverse dimensions. Sex of course is a precondition for begetting progeny. Indian law on domestic violence has not criminalised forced sex or marital sex. That is, consent is not a legal requirement. In short, law condones or even permits rape if it is within matrimony. Invariably, the victim is the woman. The after-effects of rape within marriage and without marriage are differently apprehended by Indian law. Certainly this stance of Indian law may have its own unique reasons. Cultural relativism plays a role in the making of different criteria in the formulation of domestic violence in different national laws. The same Indian law which takes unnatural sex as an offence even in marriage, though with consent, is strangely blind to the more heinous crime of marital rape. Though marital rape can be broadly termed sexual abuse, inflicting irreparable damage to the body and psyche of the victim, it has failed to figure in as a specific offence or wrong in any of the Indian statute book. If consent is not a prerequisite in marital sex, what right is left in marriage, as for women? This is a serious blemish on an otherwise spotless enactment. The grave denial of sexual and reproductive justice to women cannot be viewed just as a personal issue. It has to be taken to the human right jurisprudence, so that the private matter could be brought to the public dominion of human rights. Personal becomes political. Her predicament is not biologically determined, conversely it is socially determined.
The D.V Act is found ineffective and insufficient in protecting the reproductive rights of the woman in the shared household. Domestic Violence may be seen as men’s counter reaction to women’s ever-growing yearning for emancipation from the oppression of home as men want women to remain tied to their domestic prison called home. If a woman challenges the patriarchal order by venturing out of the shared household in a nonconforming outlook, she will be indicted by society as misguided beings who have sacrificed life for success.
Woman’s status in Adultery vis-a-vis Marital rape: Glaring illustration of denial of sexual rights:
Woman is an object and Man is the subject. In S.497 of IPC the husband of the woman who has abetted adultery is entitled to proceed against the man who has committed adultery with his wife. Woman is here denigrated as property or chattel of the husband who is the master or the owner. If the property called wife is stolen by another man, the latter could be nabbed on a complaint by the owner of the property, the husband. This is a clear indicator to the patriarchal attitude of law. The same attitude is seen expressed in the case of marital rape. The violence perpetrated by the husband is not weighed in terms of propriety or neutrality and criminality as the married woman is an asset owned by the husband for his exclusive enjoyment and possession. The (lack of)law on marital rape and the law on adultery are violative of the sexual rights of married women as victim and abettor, respectively. The woman is not held as a human, but only as property of men for his possession and enjoyment. As a property she has no right of her own. The abettor woman in adultery is not liable because the owner of the property has to continue with the possession of the property. The abettor woman is set free not because of the gender sensitive law but for certain patriarchal reasons. In a country where justice is administered to women as if she were a property under the ownership of men cannot guarantee the sexual and reproductive rights of women.
Right to Healthcare and Addiction:
Smoking is injurious to health; passive smoking is more injurious to health. The victims of passive smoking are the members of the family, those who are intimate to the smoker. He is exposing his wife and children to health hazards, with no fault of theirs. The bad effects of smoking are harmful to the reproductive health of the woman and the safety of the foetus inside.
Consumption of alcohol is another grave menace to the peaceful ambience of family. The intoxicated condition alone cannot be branded as the very reason for violence. Alcohol is but the stimulant to externalise the internal attitude of the perpetrator. The alcoholic husband can cause fatal injuries to the woman and children leading to the denial of reproductive justice of the woman in unseen, umpteen ways.
Personal Law and Domestic Violence:
Prevalence of Personal Law is a threat to application of general law in family law matters. Religion and culture are too blended to separate one from the other. Personal law is the customs, rules of the respective religion, imbued with the status of law. The rights and duties of men and women in family life are governed by personal law. The rites of marriage, the prerequisites, inheritance, divorce, adoption etc, of the people of one religion can be different from the people of another religion. Cultural relativism is the harmful outcome of personal law. The desired unique uniform civil code is upset by the overemphasis on personal law. Consequent on the prevalence of personal law, the issues concerning (eg. Bigamy, divorce) family matters could be distinct from one person to the other depending on the religion he or she belongs to.
The national as well as the international stakeholders are in two minds as to whether it is appropriate to apply uniform civil code or to maintain the culture, customs and usages of personal law in order to protect the identity of every culture, to stop invasion of minority rights , etc, As a consequence of personal law and the orthodox customs embedded in it the women are made to suffer. This is so because the personal law is based on religious rules, age old customs and usages which are patriarchal. Under the influence of religion women have to turn pregnant against their will as victims of marital rape. This repeated, recurrent pregnancy of the woman becomes a real threat to her health. Not only the woman, but the progeny too is disregarded and ignored, giving way to a new generation without health or wealth. In this context it is apt to voice support for a uniform civil code for the overall progress of the nation in general and the women in particular.
Mutilation of female genital parts is another incidence of damaging the sexual and reproductive health of the women.Under the adverse influence of religion women are denied right for abortion. As a consequence of recurrent occurrence of pregnancy and child birth followed by child care the women are always at the receiving end. Anyhow, the Indian DV Act is succour to women who are reeling under the tribulations perpetrated by their life partners on them due to the respective personal law. In India women are misguided by men to the degree that they are made to think that religion is higher than their own health rights. Under this ploy the women victims turn a blind eye to the protections of the DV Act and take recourse in the orthodox personal law remedies which are patriarchal. Unless women take the initiative to safeguard their rights through DV Act by eschewing the personal law, women will have to lie low suffering from the patriarchal personal laws.
Three fold Encumbrance.
A woman in wedlock has to engage three fold responsibilities viz. of a house-wife, mother and a worker. On the other hand her male counterpart is not to share the responsibilities of the household. She is reeling under the yoke of maternity, menstruation, pregnancy, household work, professional hardwork. As a consequence she becomes a physical wreck. The bitterest experience for her is the apathy of her mate. She has no rest even at a time when rest is inevitable for her very existence. In joint family households rest was compulsorily imposed on her during menstruation. Though this is held by us as an orthodox Hindu custom, in real life terms this period of rest was for her a blessing in disguise. Now the woman of today has no respite anywhere, any time for any exigent reason.
The home is often the place of masculine domination in which men expect the women’s labour to secure the peace they crave. The terms for an ideal home are fixed by his standards. Women are blamed by men for not meeting his standards in maintaining an ideal home. Her standards, health rights, preferences are ignored.The pretext of biological determinism has been employed to tie women to domestic responsibilities. In reality, the inferiority of women is socially constructed rather than biologically determined. This factum can be verified and explained by real life social situations where the degree of inferiority is a variable from society to society. Women’s disabilities are enforced and not biological or natural. The world is Male and the Woman is the ‘other. (de Beauvoir, 1949).Her socially determined burdens and the biologically determined duties have made women incapable of playing a vital role in public life. Her entry in public life is discouraged by men with allegations of misguided conduct. Her domestic services remain unpaid. Her role in procreation, protection, rearing of the offspring goes unrewarded by society. Instead of rewarding women, the patriarchal society is victimising her as she is perpetually subjected to gender violence in a shared household.
What de Beauvoir said about women’s plight in 1949 holds good to contemporary India. Humanity is man. He is the essential and she the incidental; he the main, she the subsidiary or the relative. The life in private sphere becomes explicit in public life. The tribulations of women in one sphere are transferred to the other and vice versa. That is why the author had said, ‘personal becomes political’. The personal ordeal of a woman in a shared household is reflected to the political or public sphere of life through the introduction of Human Right law which does not labour under cultural relativism. Its appeal, content and spirit are couched in universal language.
In short, the three fold tribulations of women have consequently degraded them to a physical wreck, totally and adversely jeopardizing her health. This has exacerbated their sexual and reproductive life, meting out abject injustice usurping the very fundamental rights of human existence.
Lack of toilet facility:
The Government and its administrative machineries are lukewarm in addressing the issues faced by women in respect of menstruation. Toilets are not there in adequate numbers. Houses are not bath or toilet attached. This has raised serious concerns of health and hygiene hazards in the reproductive life of women. In the backdrop of absence or inadequate toilet facility women are forced to store urine in bladder to harmful levels. This, therefore, is a clear case of denial of sexual and reproductive rights. Society or the Government was patriarchal in approach towards the life and death tribulations of woman’s life. Only now the Government and the society have risen to the need of the hour to have toilets in every home, with the new impetus given to cleanliness through the movement National Swachchata Mission. The recent incident of suicide by a girl due to lack of toilet at home shows how critical this issue is for a woman and her self-respect. The absence of toilet in the shared household is essentially to be considered a gender abuse under the law of domestic violence. Marriage of a woman to a household where there is no toilet facility must be checked by law by making toilet facility a precondition for marriage.. This grave issue does not find a specific, deserving mention in the DV Act of 2005.
Domestic Violence: Standpoint of Law.
In a society where everything is patriarchal it is not reasonable to expect something unique from Law. Presumably and explicitly Law is neutral. Bizarrely it is addressing exclusively and essentially the Male. The dichotomy between explicit and implicit is suggestive of hypocrisy. Hence law is an imposter in reference to its proclaimed objectivity, rationality and impartiality. Undoubtedly and unfailingly the reasonable man of Law rules out women from its ambit. In other words, the generic reference to law is Male. Women’s fate is adjudged by standards set by men for men. Men are subjects of law and women its victims. Woman is still invisible to Law as law looks at women with the same standards as it looks at men. Law is made by men as a result of gender inequality in public life. Every administrative and academic branch of Law is governed by men and their patriarchal outlook. A woman’s life is regulated by law, religion and social policy. The paradox about gender justice is that the victim’s fate is adjudged by her very oppressor. Hence her autonomy is a fiction. Grave issues of women are mainly within the spheres of intimate shared household and they still remain largely unregulated by law.
The failure of law to address the issues of women was mainly due to its patriarchal outlook and its generic reference to male. As for law woman was nonexistent. The solution to this problem is introduction of gender sensitive law both in public and private spheres of life. The Domestic Violence Act of 2005 is a humble beginning in this direction. Dowry Protection Act of 1961 was followed by introduction of Section 498 A and Section 304 B in Indian Penal Code. All theses enactments indicate a steady progression of law towards gender sensitive laws, especially to protect women from domestic violence perpetrated on them in the intimate relationships of a shared household.
Constitutionality of Gender Sensitive Domestic Violence Law:
Right to equality is guaranteed by the Indian Constitution in Articles 14-18. Article 15(1) commands, ‘the State shall not discriminate against any citizen on grounds of only on religion, race, caste, sex, place of birth or any of them. The principle of equality before law is a necessary corollary of ‘rule of law’. This mandate of equality which is but non-discrimination has enlarged the scope of Article 14.
Inter alia, it is striking to note that the Supreme Court while commenting on S.497(Adultery) of IPC, ‘….Articles 14 and 15 taken together validate the sentence of S.597, which prohibits a woman from being punished as an abettor of the offence of adultery.’It is strange that the abettor under S.497 and the victim under S. 498 A of IPC are protected by this Constitutional provisions, though under different jurisprudence. The PWDVA of 2005 is held by Delhi High Court as ‘class legislation’ by upholding the Constitutional validity of the Act.
The Constitution enjoins upon the State to make special provisions for women in prohibiting discrimination on grounds of sex. Besides the fact of the neutrality of law is a myth and only gender specific laws can protect the woman victim from domestic violence. In the privacy of a shared household Articles 21 and 14 find a place in order to protect the woman victim of domestic violence through ratifying the international instruments on Human Rights Law by the national government. It is no longer inappropriate to introduce the Constitution in the home.
 Yusuf Abdul Aziz V. State of Bombay, AIR 1954, SC 321.
 Aruna Pramod Shah V Union of India, Writ Petition (Crl) 425/2008.
 Delhi High Court in Harvinder Kaur V. Harminder Singh,( AIR 1984, Del 66) had voiced discontent on introduction of Constitution in the home.