Domestic violence victims now have access to justice8 min read . Updated: 28 Oct 2016, 05:15 AM IST
It is time to move on to the next big change in the law. Perhaps security within the marriage will lead to a violence-free relationship
We will soon be “celebrating" 10 years of the Protection of Women from Domestic Violence Act, 2005, which came into force on 26 October 2006. But is a law on domestic violence something to celebrate? Instead, we should be celebrating a world free from violence.
According to Right to Information (RTI) applications filed in various high courts, the number of cases registered under the Act in 2013, 2014 and 2015, in Karnataka was 3,332, 3,814 and 4,186; in Maharashtra it was 19,222, 20,465 and 21,165; in West Bengal 3,090, 3,979 and 4,253.
If the number of cases filed over the past 10 years is any indication of the success of the Act, one can say the law has been a success. It has given access to thousands of women who would have otherwise been without a remedy.
Access to justice is valuable in and of itself. The increase in the number of cases filed may well indicate the rising confidence of women who step out of the sanctuary of the home and into courts in pursuit of justice. They may well indicate intolerance for domestic violence among women who were tolerating daily wars in the home.
But these statistics tell only half the story. Has the law redeemed the faith reposed in it by women? Is there timely access to justice? Have judges internalized the norm of zero tolerance for domestic violence?
Sadly, no. Women wait for several years for an outcome in courts and often give up. The delays in court are attributed to the lack of resources, including not having enough judges. But this is only half the story, the other half being an apathy among judges, an inability to grasp the urgency of the situation, an inability to move from habits of thought which take for granted ancient legal procedures and an adversarial system, premised on the assumption that the burden of proving a case is on the party which goes to court. It is to deal with this problem that the Domestic Violence Act was designed to provide the tools which would take the burden off the aggrieved person and enable evidence collection by protection officers to assist judges. Unfortunately, judges have guarded their turf zealously and not allowed protection officers to play their role in being the eyes and ears of the court. Protection officers, in turn, not being given the respect they deserve by the courts, become apathetic and see their role as nothing more than being a post office between the person seeking justice and the courts.
Governments have failed the law too by not creating a cadre of professionally qualified well-paid protection officers who could do the kind of outreach work that is required to be done for a woman in distress. Not by law alone, was the message of the law. Women stepping out of the home needed more than the courts to pull them out of violence, a friend in the form of a protection officer, counselling services, shelters and medical facilities, and convergence between them. This has not happened.
According to Parliament questions, while all states have appointed protection officers, in most states, this function seems to have been given to existing government officials as an add-on to their existing work. Hence, tehsildars and other revenue officers have been asked to additionally perform the job of a protection officer, making a mockery of the system. While some states (Delhi, Tamil Nadu, West Bengal, Maharashtra, Haryana and Kerala) have protection officers working exclusively on the issue of domestic violence, lack of infrastructure and additional staff support remains an area of concern.
One of the most valuable rights created by the law was the right to reside in the shared household, which until 2005 was unprotected by law. I have often said, a woman is less protected in her matrimonial home than a tenant or a trespasser in unlawful possession. Trespassers can only be evicted by due process of law whereas a married woman can simply be pushed out of the home leaving her to litigate for years.
It was hoped that this situation would change with the new law, but early in the life of the law, the Supreme Court, speaking through justice Markandey Katju, held that if the shared household belongs to the parents-in-law, the daughter-in-law would have no right to reside in it. This is the teeth of the law which said that regardless of the ownership of the property, if it was the shared household, she would have the right to reside in the home. The joint family continues to be the dominant form of family in India and a man who marries takes his wife to his parents’ home. This is the patrilocal system we live in. Few men and women who marry can afford an independent home of their own at the time of marriage. Yet, in the case of Batra vs Batra, 15 December 2006, the only consideration which weighed with the court was the fact that the home was not in the ownership of the husband and hence, a woman who had made it her home by virtue of her marriage, had to be thrown out when things went wrong. This one judgment alone undid a revolutionary law and for this, the Supreme Court carries historic blame.
Traditionally, courts have found it difficult if not impossible to visualize any form of intervention in family laws on the ground that they are founded in religion and cannot be interfered with. Yet, the Protection of Women from Domestic Violence Act was a secular law and the courts ought to stay clear of any considerations other than the protection of human rights.
More recently, a sessions court in Delhi held that personal laws will continue to apply, notwithstanding the Act. While personal laws may operate in the domain of marriage and divorce, they have no role to play in the protection of a woman from violence. This is an issue waiting to be decided by the Supreme Court of India. Those who clamour for a common civil code also fall back on the sanctuary of personal laws when it comes to defence of property.
The law was ahead of its time but surely, 10 years is sufficient time to understand the message of the law, that is, zero-tolerance for domestic violence.
Sadly, the law is still perceived as anti-men. I still remember Renuka Chowdhury, minister for women and child development when the law was brought into force, saying that the law was to be seen as a Lakshman Rekha beyond which men ought not to go; it provided them with a guideline as to what was considered socially unacceptable behaviour and what was not. It was deliberately not framed as a criminal law, which would see men in prison but one which would give concrete relief to women as a one-stop centre.
In a country that has non-violence as its founding faith, it took more than 60 years to define what is violence against women, to accept that emotional, sexual and economic violence is also violence.
The ever-present bogey of “misuse" of the law has surfaced in this civil law as well. In a case of Section 498A, the alleged misuse was putting elderly parents behind bars. A civil law carried no such dangers, so what is the next “misuse"? This time, it is women misusing the law by making “unreasonable demands on their husbands."
A woman judge in Delhi has imposed costs of Rs1 lakh on a woman for “misusing" the law of Domestic Violence by using it “to extort unjustified money" from her husband. So, what is “justified money"? And when is a demand not “extortion"? There seem to be no answers to these questions except that any demand for money is unjustified. Women are made to look like thieves attempting to steal from their husbands, that too with the aid of the law.
It seems clear to me that society is not able to accept that married women have economic rights within marriage or that there is something known as equality in domestic relationships.
So, it is time to move on to the next big change in the law and what would that be? Women are disinherited within marriage, and have to wait for an inheritance till there is a death in the family or they become widows. It is time to define what is the “justified money" within a marriage that a woman is entitled to. The law must recognize that a wife is entitled to her share of the gains of marriage.
Perhaps security within the marriage will lead to a violence-free relationship. If it does not, a woman can choose an exit option, that is divorce, but with adequate financial security post divorce. Studies have shown that in many countries, divorce has led to the lowering of the standard of living for women. A law on community of property would give her a share in the assets acquired during the marriage upon divorce. I wonder then what the alleged “misuse" would be?
The truth is that law is empowering and the very use of the law is seen as an act of subversion of the existing social order; hence, “use" of the law becomes and act of “misuse". In short, women are being told: don’t use the law or use it on pain of being thrown out of the shared household and being called a “gold digger". It is this that the judges need to see and change in the next decade of the existence of the law and put their own house in order before moralizing about “misuse".
So, what has changed? It is the women who have changed and now aspire to a violence-free life? We as a nation must not let them down.
Indira Jaising is a senior Supreme Court lawyer and a former additional solicitor general of India.