Curator’s Note:
This month, we publish the account of a survivor. There are many survivors, but few who are willing to write or speak about their experiences. For that, we are grateful. The PWDVA was itself shaped by the experiences of survivors and women litigants, and these contributions may have a role in informing the agenda going forward. If others would like to send in short pieces about their own experiences, we would be glad to include them in our living archive. This piece is published anonymously at the author’s request.
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I WOULD LIKE to recount a conversation. I have had several such conversations, but I will focus on this one.
I was in the drawing room of a lawyer, a young man well-established in the profession. I was offered a glass of orange juice and requested to tell my story.
My story was more than ten years old; the first hurdle I would face when recounting it was its age. Why hadn’t I acted earlier? Every time I had to explain that I couldn’t because of a number of reasons. My husband had left years ago, when my daughter was three; I had just had a huge surgery, which had me with severe physical restrictions and mental trauma and had drained me financially; I had a demanding job; and I had to take care of a parent, who was extremely ill. I could not act immediately because I did not have the mental space or financial strength or time to start a legal battle.
What I could not tell a lawyer usually, and I had met many of them, was that I was heartbroken. I think before the cool gaze of a lawyer, I would feel silly to even bring it up. Honestly that was the main reason. I had felt paralysed for the initial years following my husband’s exit because I could not bear to revisit anything associated with him. I would experience a little mental breakdown with every memory. Anything could trigger me; memories rushed at me, lashed at me, laughed at me, mocked me, did me in. They would tell me that I was an ugly, boring, disgusting person, who could be just discarded. I would feel that all that I had felt previously about the relationship was a lie. I doubted my intelligence and felt that I had no self-worth.
I could not pick myself up. For a very long time.
But now I had to tell my story, stating the facts.
I finished telling it: my husband’s numerous affairs, the fact that he was severely addicted, the money he spent entirely on himself, contributing almost nothing to the household.. He did not contribute towards the fees for our daughter’s school. He would parade his girlfriend in public, in my presence. When I confronted him, he said our marriage was over, he was leaving for another city, leaving his job, and leaving me and our daughter to live with his girlfriend, which he did not say, but which was obvious and became evident, also on social media, from the day he left.
Since then, he had not contributed a paisa towards us, or towards our daughter’s upkeep. I wanted a case filed against him under the Protection of Women from Domestic Violence Act, 2005 (‘PWDVA’). I had studied it again, especially for the grounds on which my case could be built, and I wanted to charge my husband with having harmed my mental well-being, and having caused verbal abuse, emotional abuse and economic abuse.
The economic abuse was ongoing; ten years had passed, our daughter was growing up, expenses were mounting, and the lack of contribution from him was making my circumstances extremely difficult. Fortunately, I had maintained all records, including the financial ones, in an organised way for all these years. Every bank transaction during the period was available, and so were all my other statements. I also had proof of the other charges that I would make. I thought that I had a pretty strong case.
I wanted maintenance for myself and my daughter and financial compensation for all the years past.
The lawyer had listened impassively to my account. He said, as expected, that I should have moved court earlier, as it would be difficult to explain the delay. To this I said that the violence was still continuing: after renewed promises, my husband had not contributed anything towards my expenses, and this was proving hard.
The lawyer said because of the delay, Section 498A of the Indian Penal Code, 1860 (now Section 85 of Bharatiya Nyaya Sanhita, 2023) would not be applicable in my case. I would only be able to use the PWDVA. (That, I felt, should not be the reason for my choosing PWDVA. I felt that it addressed my concerns more, in the way it had elaborated its provisions. In addition, this was civil law, not a criminal one, unlike 498A. I wanted justice for myself, not just punishment for my husband. And in any case, the time limit should not be a consideration with either 498A or PWDVA: “the last act of cruelty” starts the clock for filing a complaint.)
The lawyer asked the name of the police station under which my residence was located. When I mentioned it, he said that that one was tough.
“We will get the police complaint in place, but you must understand,” he said. “You may have to pay a considerable amount of money.”
I asked why I would have to file a police complaint. He said as evidence of physical abuse. I told him that there had been no physical abuse. My husband ticked all the boxes, except physical abuse.
The lawyer looked incredulous. “How do you think you can file a domestic violence case without physical abuse?” he asked.
I was stunned. When PWDVA came into force in 2006, one of its most inspiring features was the emphasis it placed on psychological abuse and economic violence. I think the language in which PWDVA was written was also reassuring; it identified with precision the factors that could contribute to each kind of abuse the Act mentioned.
I pointed out to the lawyer that I want to use PWDVA especially because I thought it addressed my situation so well. I added that the first thing it mentions is “mental well-being” and goes on to dwell in detail on “verbal and emotional abuse” and “economic abuse”.
The lawyer was annoyed. “Where does the law say this?” he challenged me.
I brought out my phone, keyed in PWDVA, and began to read out, from the very first paragraph of the definition of “domestic violence”: “For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse…”
I verbally underlined all the right words, “mental”, “verbal”, “emotional” and “economic”. In my mind they had formed four pillars of support, defined distinctly but related to each other.
The lawyer now looked offended. He leaned forward and began to address me in a voice of authority.
“You have to understand something,” he said. “All that may be written there,” he said, “but in the court, the situation is very different. Do you think that the judge will have the time to go through all the things that make up verbal and emotional abuse? No.”
What only means anything, in a court in a domestic violence case, he said, was the evidence of physical violence.
“He never hit you? Or even pushed you?” the lawyer asked.
No, he actually did not.
“Nothing ever happened between you, any altercation that threatened to blow up and it looked like he could have hit you? We could build on that,” the lawyer persisted.
No, nothing like that had happened. And I would not lie.
Besides, I thought my case was strong enough without any contribution from physical violence. There has been verbal intimidation, adultery, and constant economic deprivation. Much of it, especially the financial part, was on record.
And should not any court try and engage with the emotional torment of a woman who is not physically very well (as my recovery from the surgery was never total), has been abandoned, has lost her home (I had to find new accommodation)? And even if I ignored the fact that I had the additional work of looking after an aged parent who was extremely ill — as my husband had been in no way responsible for this situation, though it would not have harmed him to be a little sensitive — just bringing up a small child single-handedly and facing her questions about her unique situation is one unending heartbreak.
But here I was, still facing the lawyer. I repeated that I will not lie. He looked really offended.
“In that case I don’t think I can take up your case,” he said.
Eventually I did file a domestic violence case against my husband, in very different and far more favourable circumstances. And I am very thankful to my current lawyers for that.
But that day, as I had walked out of the lawyer’s house, I had felt a dejection that was similar to how I felt when I lived with my husband. It was brought upon by a feeling of powerlessness. I would cry, I would bleed, I would perform acts of desperation when I was living with my husband, only to feel that I was facing a wall. He saw nothing, he heard nothing.
And here, approaching someone who I expected to help me to access the law, the end of which is to make me feel empowered, I felt the same powerlessness. I had a vision of walking into a dead end. I felt crushed.
A lawyer who had helped me initially, in a very generous way, but could not represent me for some reason, had warned me about something. “Patriarchy helps sometimes,” she had said. “It makes the court partial towards women. But you must also not forget something.” Most judges are men, the lawyer, a woman, had reminded me. “And you are a short-haired, English-speaking woman. Your salary, whatever your expenses are, looks substantial. You may not look vulnerable enough.”
Another lawyer, another woman, had told me something else. “Why are you even bothering to pursue your case? If your husband contests the case, it will drag on for years. You have a job and are capable. The court won’t look at your case favourably,” she had said.
Patriarchy is not only about men. The PWDVA, resting in its hands — the irony could not have been sharper — is assuming the strangest, most misogynistic of shapes.
In my case, it boiled down to this: a woman has to be beaten up, in reality or in fudged police records, to be able to use the PWDVA. This imperative is key to understanding the role ascribed to the woman’s body in the legal-judicial system of the country.
Unless and until her body comes bearing the marks of violence, which the woman is seeking to address, though perhaps in another form, she will not be seen. What is the system perpetuating then? The very violence that it should stop? It is not looking at the violence that is actually happening, which may not be appearing like signs on a woman’s body. Yet, it can be as damaging, maybe more. Therefore, when violence towards a woman is being ignored because it is not visible, the system is not only failing to prevent violence, but also not recognising the violence that is happening or has happened – which can even lead the woman to take her own life. Only then, perhaps, the violence will be fully recognised.
This is the same logic with which the legal system may operate when it looks at rape survivors. The onus of proving the violence is on her body. It has to be the evidence; a woman bringing in rape charges has to deal with systemic scepticism, if not dismissal. The rape, the sexual violence, is best proved when she is brought dead from the assault.
The dead body of the woman is the best piece of evidence in the eyes of the law when it comes to violence against women, as Senior Advocate Indira Jaising, who took a leading role in drafting the PWDVA, often reminds.
In Rabindranath Tagore’s short story ‘Jibita O Mrita’ (‘Living and Dead’), a woman was not recognised as alive till she killed herself. “By dying, Kadambini proved that she was alive,” Tagore says in the final line of the story.
Kadambani was seen not to have even existed before she could offer her dead body. Standing before the law, talking about violence, even armed with a strong and empathetic piece of legislation such as the PWDVA, a woman can still feel invisible. Till she can produce a fake police complaint saying she was beaten up.
But I am not dead yet, and I do not enjoy invisibility either. I have to fight my case in court. I have done my groundwork, built up my case, and hope to communicate to the judge that invisible acts can constitute great acts of cruelty.
And I still think that the law will support me.
Continuing its definition of domestic violence, the PWDVA says that an act shall constitute violence in case it in any way “injures or causes harm, whether physical or mental, to the aggrieved person” [Chapter II, 3 (d)]. It goes on to explain: “For the purposes of this section,—
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved
person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard
to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance…”
My case has just begun to be heard in the court. If the judge wants, I can give a hundred examples of each kind of abuse I have experienced. If the judge wants, I can show how scarred I am — in my mind.
