Livemint: New Delhi: Friday,
October 28, 2016.
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.)
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