In 2001, just for fun’s sake, I applied to attend the World Women Lawyers’ Conference in London; I was, after all, part of an NGO working on the domestic violence law in India! When the sponsors replied with an acceptance, in shock, I wrote back, “I am a man”. The response was a telegraphic, “We know – come”.
As part of the NGO Lawyers Collective, I had the good fortune to interact with some of the shining stars of India’s feminist firmament as well as several ordinary struggling sisters in the women’s movement. I must admit, as we campaigned for a law to protect women from domestic violence, we often faced the question, ‘why only women?’ The naysayers prophesied that the proposed law would be an atomic device in the hands of the already-privileged women who had been favoured by all legislation passed in the last three decades. In fact, a senior lawyer who went on to become a judge had, in one consultation, joked, “This is dangerous. if I call my wife ‘moti‘ she can have me booked under this law!”
These reactions were, of course, spectacular oversimplifications of the issue and demonstrated some people’s complete inability to appreciate the real application of a law and how the legal system operates in general. But more on that later.
Envisioning the domestic violence Act
On October 6, the Supreme Court reached a verdict in Hiral P. Harsora’s case, striking down the words “adult male” from Section 2(q) of the Protection of Women from Domestic Violence Act 2005 (DV Act), thus paving the way for the law to be widened law to include women and minors. This verdict effectively meant that women and minors, and not just men, could now be charged for committing acts of domestic violence.
But this decision adversely impacts the utility of the DV Act and there is an urgent need to review this precedent.
As the law began to take shape following nationwide consultations by the legal fraternity between 1999 and 2005, one thing that became clear was that there was a vacuum in our civil and criminal laws, which forced many women to suffer violence in silence. Many Indian women would not want to invite a constable into their bedrooms and send their husbands to prison – the shame, intrusion of privacy, the resulting bitterness and the likely spoiling of chances of rapprochement would be too much to ask. Besides, there is also the instance of the woman taking on the peripheral role of ‘victim’ in the criminal justice system, where she is just a witness and the case is really between the prosecuting state and the accused. Lastly, the tough standard of proof beyond reasonable doubt would put any woman off seeking criminal remedies to the violence they may have suffered.
The civil law was not tempting either – prohibitive court fees, the expense of hiring an attorney and the slow pace with which trials proceeded made it an unattractive option.
The DV Act was thus conceived as a solution for the battered woman who first needed to secure herself against a violent situation with a “protection order” to restrain an abusive spouse or relative, a “residence order” to put a roof over her head, a “custody order” to secure the custody of her child and finally a “monetary order” to establish her financial security when it came to things such as medical costs and other monetary compensation. It was through this assurance of security that the woman could ultimately decide on what to do about her troubled relationship.
The DV Act was meant to be “different”. Unlike other laws that require the user to reach out for assistance, this law conceived of a situation where the state would appoint “protection officers” who would coordinate with other service providers – doctors, legal aides, shelters, police and mental health professionals – to engineer a “coordinated reach out” to the victim. Section 11 of the DV Act required governments to give “wide publicity” to the law, sensitise stakeholders and set protocols to deal with situations of domestic violence.
The most important provision – which we expected the law ministry to strike down – was Section 31 of the DV Act, which made breaching a protection order a criminal offence, and thus a cognizable and non-bailable crime.
The most striking feature of this law is, however, the exhaustive definition of ‘domestic violence’ and the various facets that constitute such violence – physical abuse, sexual abuse, verbal and emotional abuse and economic abuse – which leave nothing to chance or the vagaries of judicial interpretation.
But the Act suffered two casualties in quick succession. In Batra (2006), the Supreme Court held that in a case where a woman’s “shared household” was not her husband’s property but belonged to her mother-in-law, the woman’s right to the property could not be protected under the DV Act. The court lost sight of the fact that the Act did not give any property rights to women. The Act was only meant to provide a temporary residence to a victim of domestic violence and so the ownership of that property was an irrelevant factor. Then came Velusamy (2010), in which the apex court held that only legally married people and not live-in partners could access the DV law, clearly ignoring that according to Section 2(f) of the Act, the definition of “domestic relationship” included a “relationship in the nature of marriage”.
The Harsora case travelled to Delhi from Mumbai, where the Bombay high court had held that a woman and her female children could be accused of domestic violence under the DV Act if her mother-in-law and sister-in-law complained against her, provided the woman’s husband was also listed as a respondent. The Supreme Court shed all restraints and held that only considering adult males as perpetrators of domestic violence was unconstitutional.
The court’s logic behind this verdict was based on the fact that the Delhi high court, in Kusum Lata (2011), had already held that a mother-in-law could lodge a complaint against her daughter-in-law under the DV Act. The preamble of the DV Act also referred to “victims of violence of any kind occurring within the family” and that it was “obvious” that the perpetrators of violence could be “women themselves”. The definition of “domestic relationship” in the Act was very wide and covered female relatives.
The case against a gender-neutral domestic violence law
The 2005 amendment to the Hindu Succession Act 1956 made the female members of a joint family “coparceners”, meaning the women in a family had equal rights to inherit property and such. The violence defined in the DV Act was “gender neutral”; for instance, an adult male could get his wife evicted from the shared household by simply getting other women in his household to file a complaint under the DV Act. The court also examined the law’s provisions that dealt with issuing “protection orders” and “residence orders” to justify the fact that the exclusion of “women in-laws” was never contemplated by the court as these provisions referred to “relatives” and did not distinguish between the gender of these family members .
In fact, the court has gone so far as to hold that minor children can also be considered legally responsible under the DV Act. It even referred to the lapsed 2002 Bill to note that this version had not confined the law to “adult males”. The court has also referred to the 2013 sexual harassment law, which is gender neutral in its applicability as far as the offenders are concerned.
While well intentioned, the Supreme Court’s verdict betrays a spectacular ignorance of the nuts and bolts of access of battered women to justice. The DV Act exclusively caters to female victims and there is a reason that men’s demand for the law to be made gender neutral was rejected. In India, where the creative legal genius can transform a BMW into a truck, you don’t require much imagination to figure out what would happen if husbands who were being accused of domestic violence by their wives were given the option to reciprocate. A common situation that could arise would be that men, usually the breadwinners in families and with deeper pockets than their wives, would use their financial resources to out-litigate their wives.
A law has to be organic and has to take cognizance of socio-economic realities if it is to be delivery-oriented. The very considerations that excluded men from being considered victims of domestic violence led the legislature to consciously keep men restricted to respondents in such cases. The Supreme Court’s gender-neutral interpretation could spell doom for violence survivors who live with their husbands’ female relatives. Any attempt by them to access the DV Act would invite counter complaints by the female in-laws present in the same household, often sponsored and engineered by the men of the family. The Bombay high court in the Harsora case tried to strike a balance by requiring the women complainants to also implicate a man along with the women respondents; that is, if you complained against your daughter-in-law/sister-in-law, you would also have to complain against your son/brother. The Supreme Court’s decision does away with this vital check against a biased or illegally motivated action.
When the court includes children and other female relatives, it fails to contextualise the law. The law was originally formulated to create an interim space for a woman “in a domestic relationship” to protect herself from domestic violence as she decided on what her long term goal would be – move out or make amends. This issue is not about property rights and it is thus immaterial as to whether women can now own joint family property. And it is not the case that the persons suffering at the hands of their daughters-in-law have no remedial options. The existing civil and criminal law has many a remedy for them (for instance, the Maintenance and Welfare of Parents and Senior Citizen’s Act 2007, the Hindu Adoption and Maintenance Act 1956 and the law of injunction and partition) and they need not be foisted upon the DV Act.
This is not to say that women are not victimised by other women. Simply put, let us first implement the law to empower the women who are facing violence at the hands of men before we embark upon the ambitious task of addressing intra-gender violence, which will require a more evolved and empowered society and a fairer and non-adversarial legal system.