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Of crying hoarse, not wolf!

While much has been written and said about the judicial role in matters of governance, little has been said of their recent attitude to women’s issues, writes Indira Jaising.

india Updated: Mar 18, 2007 00:13 IST

While much has been written and said about the judicial role in matters of governance, little has been said of their recent attitude to women’s issues. The Supreme Court and our High Courts seem to have changed their goal posts when it comes to women. Husbands must no longer be convicted for taking dowry, dowry must be redefined and parents must be convicted for giving dowry. Demanding money from the wife’s parents after marriage to purchase household necessities and manure for cattle, is no long a demand for “dowry” but a demand for necessity. No demand for dowry, hence no dowry death! Women have no right to reside in the matrimonial home, hence no need for an injunction restraining dispossession. Indeed the well worn cry we hear from the Bench is “Women are misusing the law”. This is yet another example of judges making remarks from the bench based on their perceptions, their sentiments, rather than empirical data or reason.

The recently conducted National Family Health Survey III (2005-06) of the Government of India found that 37.2 per cent women have experienced violence in the form of physical or sexual abuse by their husbands. The data clearly showed that women with less or no education experienced more violence. The survey reveals that spousal violence is more prevalent in rural areas (40.2 per cent) than in urban areas (30.4 per cent).

While in the 80’s, judges cast women in the role of “victims” needing protection, today they are cast in the role of “villains”, greedy to grab their husband’s property and to put their mothers-in-laws behind bars. There is a reversal of roles going on here, from victimised daughter-in-law, to victimised mother-in-law; nobody seems to realise that both are framed in a situation that facilitates violence by positions of dominance in a household. Normally, given the proverbial closeness of the Indian male to his mother, the mother-in-law and the son are on one side and the daughter-in-law, the outsider, is on the other. However, judges cannot seem to decide a case without creating stereotypes of characters as in a soap opera.

The newly enacted Protection of Women From Domestic Violence Act 2005 does not make domestic violence a crime, but provides effective relief to women facing violence, such as preventing dispossession from the shared household. It is only the violation of a court order that makes a person guilty of an offence.

It is a two-stage law: an opportunity is given to the person to correct himself, and only when the violence persists, is there a penal consequence. But judges and the media continue to refer to it as a one more law to put men behind bars. The new law, does in fact do something new: it recognises the right to residence of a woman in a domestic relationship in a shared household. It is this recognition, it seems, that people find difficult to accept.

The specific Indian variant of spousal violence is the forcible dispossession of a woman from the matrimonial home, what is now described as the “shared household”. The shared household is one in which the parties live or have lived together. The expression “have lived” is intended to take care of a situation, in which the woman has been dispossessed before she can approach the court. And yet, the Supreme Court has introduced the notion of ownership into the concept of the shared household in the recent judgment of Batra v Batra.

In this case, it appears that the husband and wife were living together with the mother-in-law in premises owned by her. The wife was thrown out of this matrimonial house; the husband then filed for divorce after moving out to rented premises. The dispossessed wife successfully obtained an order restraining her mother-in-law and husband from evicting her. Following a series of appeals, the matter reached the Supreme Court. Relying on Section 17 of the Act, the wife’s lawyer argued that she had a right to reside in the shared household as she had “at any time lived” in the shared household. The Supreme Court, far from interpreting the expression “shared household” in a manner harmonious with the rest of the Act (which makes the ownership of the household irrelevant to the right to reside), excluded self-acquired property of the in-laws from the purview of “shared household”.

Adult sons, often do not leave the family home, partly for economic reasons and partly for cultural reasons. This means, that ordinarily, the matrimonial home is owned by a common ancestor -- in that sense it is a joint family. It is for this reasons that Section 17(1) states that a daughter-in-law, who lives in a joint family, has a right to reside in the household, whether or not she has a beneficial interest or right title in it. Take, for example, cases where the husband marries, brings in the bride to his parents’ house, lives there for a month and then pushes off to the US. Would the parents-in-law be able to say since the husband has disappeared to the US, the wife has no right to live there and that she too should get out of the house as it is owned by the mother-in-law, regardless of whether he makes provision for her visa or accommodation in the new home?

The Supreme Court then said that the expression “shared household” was clumsily drafted as it used the expression “lives or has lived”. This according to the Supreme Court meant that a married woman could claim rights to any household, for example her brother’s, simply on the ground that she visited her brother as all that was required to be proved was that she had lived there at some point.

This is a strange process of reasoning, which ignores the fact that a triple test has to be satisfied, the fact of violence from the respondent, a domestic relationship and living in the shared household as cohabitees. There is a major difference between being a guest in someone’s home and living in ones own “shared household”. The court says that to interpret the words “has lived” to mean any place where the husband and wife had lived as the shared household would lead to absurd consequences and the drafting of the law was “clumsy” and “absurd”. This case undoes what the legislature intended to do, namely give women the protection of a home, irrespective of the nature of ownership, from which they cannot be dispossessed except by procedure established by law.

The new Act has been in force for just about four months. It must be given a chance to work itself out.

(The writer is a senior advocate and project director of Lawyers’ Collective Women’s Rights Initiative.)