The Unsafe Home

[dropcap]T[/dropcap]HE home is private. Even sacred. And never ever mind if it is a living hell – especially for its women habitants. Patriarchy and its institutions can afford to brook no interference in the domestic sphere – after all an entire order of society is threatened. The judiciary with few exceptions is an extension of those institutions. The struggle to assert the rights and dignity of women in their very own homes has thus been particularly difficult, even in our modern times. To channelise those rights into legislation has been more onerous. So, it is only with a sense of awe that "Conflict in the Shared Household: Domestic Violence and the Law in India" can first be approached.

It's been more than ten years that the Protection of Women from Domestic Violence Act, 2005, abbreviated as PWDVA, was enacted. The history behind it is longer. Editors Indira Jaising and Pinki Mathur Anurag have compiled a number of essays on the Act, its history, its relevance, its achievements, and not least, the challenges it has met on ground and in court. Calling the PWDVA a milestone in our judicial history, and significantly in the context of the women's movements in India, would be an understatement. The PWDVA is one of those sterling pieces of secular, social legislation with a stupendous coming together of grassroots' action with political will. It is also a shining example of a modern law that has emerged ground-up in tandem with legal activism.

The PWDVA faces many challenges from home to court. But it exists, it is used, and justice has been served as well. Essentially, amazing women and some amazing men have put together an amazing law.

The book has been thoughtfully organised into three distinct sections. Each essay in each of the sections has dealt with a particular topic and a theme emerging from the Act in substance and implementation. There are reports of studies with tables and figures that give a bird's eye view of the Act since its implementation. It is not possible to cover the full extent of the essayists' in-depth theses, arguments, studies and the various case laws they refer to in this review. Suffice it to say that the book is crucial for anyone interested in both the social and the legal aspects of the PWDVA, its implementation, and its progress.

Crying need for a comprehensive law

The book opens with Jaising's essay in which she charts the unique journey of her NGO, Lawyers Collective (LC), with various women groups across the country in the late nineties. We find that violence against women is normalised. While women were getting battered in varying degrees, they had little legal recourse or a way out. The crying need for a comprehensive law dealing with violence (not just physical) against women, be they wife, sister or mother was thus deeply felt.

Jaising talks of the various issues that came up in discussion, at the original stage of drafting the Act and later. One of the issues dogging the Act since the beginning was the issue of gender-neutrality. Eventually, it was settled that if the Act was gender-neutral, it would dilute and even perhaps defeat the purpose of its primary intent, which was to seek justice for the majority of the victims who were women. Both consultation and empirical data, according to Jaising, had suggested that this law had to be gender-specific. Recent challenges to the PWDVA (Hiral P Harsora vs Kusum Narottamdas Harsora (2016)10 SCC 165), as Jaising says, have been detrimental to the intention of the Act, under the guise of gender-neutrality, and the perceived misuse of the Act by women.

Other essayists in the book also point this out.

The flawed and simplistic assumption that women take advantage of the law, more in vogue these days, reinforces not only a patriarchal mindset but is also a setback to the very goals of the law itself. As Jaising clarifies that when women do misuse the law, it cannot extend to the PWDVA, as there is no question of arrest under this Act.

Holistic support

The PWDVA as Asmita Basu says in her essay, is primarily a civil law, providing civil remedies such as the right of the abused woman to be protected, and to continue living in the shared household without fear of being thrown out. If the court order is breached, then it becomes an offence.

In 45% of the cases, the complaints were filed after more than seven years of marriage/relationship, thus discrediting the flawed assumption that women tend to escalate marital adjustments into cases of domestic violence.

The Act was also thoughtfully drafted to harmoniously work with Section 498A of the Indian Penal Code (IPC), with Section 125 of the Code of Criminal Procedure (CrPc) and with family laws. Basu highlights the particular reliefs available under the PWDVA such as "Protection Orders", "Residence Orders", "Orders for Monetary Reliefs", "Orders granting Temporary Custody of children" and "Compensation Orders" – each of these worked out in a manner to ensure that the victimised woman has holistic support, and which would address her immediate needs without having to necessarily find recourse in criminal law. Yet the forum would be the magistrate's court for its easy accessibility and since it already has the jurisdiction for applications under Section 125 of the CrPc.

Patriarchy and its religious-legal sanction

Uma Chakravarti who writes for the first section of the book along with Indira Jaising and Asmita Basu delves deep into the very concept of violence as a tool to regulate the patriarchal family. She demonstrates how this concept has the religious-legal sanction and is not limited as it is conveniently thought to the lower classes and castes.

She cites studies by other academics such as Rhonda Copelon who have extended the meaning of terror and torture to violence in intimate relationships. Traditionally our society and even our courts have been wary of addressing domestic violence because it is seen as an interference in the sanctified institution of marriage that must be protected at all costs.

Violence, as Chakravarti notes, is a mechanism to keep the woman in control to ensure her role in the reproduction of labour. Chakravarti's essay is insightful because it examines the sociology of violence in the domestic sphere and extends it to an understanding of labour and productivity in which the woman is only a cog and who must fulfil her jobs at home even if she works outside.

The right to reside

Section II of the book refers to the "Critical Issues" under the PWDVA.

Pinki Mathur Anurag's essay fundamentally deals with 'right to reside' that the Act makes possible. Women in our society have often tolerated violence in fear of losing their home, especially when they have no form of sustenance. The right to a house is one of the most commendable features of the PWDVA.

Anurag says that not only does the Act protect the woman's right to stay but also it positively contributes to her negotiating capacity. Irrespective of ownership or title, the PWDVA has made it possible for the victimised woman to reside and to not be dispossessed against her will.

Violence is a mechanism to keep the woman in control to ensure her role in the reproduction of labour. Chakravarti's essay is insightful because it examines the sociology of violence in the domestic sphere and extends it to an understanding of labour and productivity in which the woman is only a cog and who must fulfil her jobs at home even if she works outside.

Anurag brings attention to international law and instruments under which the law on domestic violence must be located. The International Covenant on Economic, Social and Cultural Rights(ICESCR) for example has provisions that highlight the right to adequate housing. Housing, as Anurag notes, is connected to domestic violence in two distinct ways: one is obvious, which is that violence violates the right; the second is when inadequate housing becomes in itself a cause for violence. Anurag also refers to the issues of forced eviction and inheritance and property rights, the latter deliberately skewed to discriminate against women.

The rights of cohabitees

In the following chapter, Brototi Dutta, focuses on the rights of the cohabitees, derogatively addressed as "Keeps and Concubines", no less by our own courts (Velusamy vs D Patchaiammal, AIR 2011 SC 479). The judgment was also problematic because while the Parliament had intended to protect all women in a domestic relationship, this division bench of the Supreme Court sought to comment on the 'relationship in the nature of marriage' and turned to the common law marriage to enumerate the necessary ingredients to prove a "relationship in the nature of marriage."

Interestingly, as Dutta points out, this was not even a case under the PWDVA, but was a claim for maintenance under the Hindu Marriage Act. Dutta explains why it is cohabitation and the "factum of residence" that should be the test for the right to reside under the PWDVA. As cohabiting relationships will increase, which may or may not qualify for live-in relationships, or "relationship in the nature of marriage", the jurisprudence on PWDVA and in our family law, must evolve. If it does not, there will always be women in intimate relationships who will be left out, whereas the Act, as Dutta stresses has an in-built mechanism of institutional support to the abused woman in an intimate relationship. That is why she also regards the Velusamyjudgment as a disservice to the intent of the Act.

Marital rape

In the following chapter, Ajita Sharma focuses on marital rape as domestic violence. Her thesis is in favour of penalising forced sexual intercourse, an issue that our legislature has strayed from addressing when it comes to domestic violence. This is mainly because the very institution of marriage has an implicit assumption of sanctioning sex in which the wife/partner's consent is not seen as necessary at all. Yet as Sharma explains that violation of a woman's body through forced sex is nothing short of a grave form of violence and that violence can become a matter of routine. While the PWDVA has a comprehensive definition of domestic violence, which includes sexual abuse, it only provides a civil remedy.

Sharma also refers to the IPC that has no provision for marital rape except in the case when the wife is a minor or when she is judicially separated from her husband. Even then the quantum of punishment is lower than in the other instances of rape. When it comes to marital rape as a ground for divorce (as an act of cruelty), the case law on it is patchy as well, with judges more prone to viewing claims of unnatural sexual activity or cruelty as a series of events rather than dealing with marital rape head-on. Sharma says that 52 countries have already criminalised marital rape, but India remains an exception with countries such as Pakistan and China, among others.

Domestic violence is not religion-specific

Saptarshi Mandal locates the PWDVA in context with the Muslim Personal Law (MPL) and says that the religious personal laws in India are not as completely separate from the common laws as it has been generally presumed. He refers to the hybrid nature of Indian family law that is more dynamic than watertight. The MPL has been particularly cast as resistant and not conducive to state intervention, but that is a cliché. Mandal goes on to explain his thesis that the PWDVA is a homogenising Act and calls for a uniformity of rights. Saptarshi Mandal emphasises how the legislation understood that violence cannot be religion-specific, and how gender justice forms the basis of the harmonisation.

The nature and spread of domestic violence

Section III of the book focuses on the expectations that PWDVA gave rise to and the law in its actual enforcement.

Aparna Chandra has analysed the orders granted under the PWDVA across 14 states between 1^stApril 2012 to 31^stMarch 2013. The challenges to conducting such a study are immediately apparent but the study is nevertheless revealing.

Though the PWDVA is meant to address violence in all kinds of familial relationships, the study says it has mainly been used by married, divorced or widowed women against their marital relations.

The flawed and simplistic assumption that women take advantage of the law, more in vogue these days, reinforces not only a patriarchal mindset but is also a setback to the very goals of the law itself. When women do misuse the law, it cannot extend to the PWDVA, as there is no question of arrest under this Act.

Secondly being a secular law, women across religious identities have used it, and the numbers are proportionate to their presence in the general population of the country.

The study also found that most of the aggrieved women complaining were already residing outside their marital home. In 45% of the cases, the complaints were filed after more than seven years of marriage/relationship, thus discrediting the flawed assumption that women tend to escalate marital adjustments into cases of domestic violence. The duration of violence is a significant factor as well. In 40.4% cases, women alleged that they filed the PWDVA complaint after enduring violence for more than five years while a maximum number of cases had also tried other conciliatory mechanisms before filing the complaint. The kinds of abuse, the motives for violence and the reliefs sought are also examined.

Co-writers Monica Sakhrani, Trupti Jhaveri Panchal, Radhika Chakraborty and Manisha Kande study the implementation of the PWDVA in Haryana, a state that is particularly vulnerable when it comes to crimes against women.

The study also draws from a larger study of the implementation of the law in Maharashtra, Odisha and Tamil Nadu to identify and recommend the best practices. Haryana, the writers say, came up with a unique model to implement the PWDVA where the protection officer also doubled as a prohibition officer, who also holds charge under the Prohibition of Child Marriages Act. But it is indeed a "long road to justice."

In the last chapter Padma Bhate-Deosthali and Sangeeta Rege talk of the incident of domestic violence as the most common form of everyday violence that a woman experiences. They refer to the comprehensive infrastructure provided by the PWDVA and of the services available/can be made available to the victims and survivors. These services range from crisis centres located within health facilities and police stations to one-stop centres.

A revolutionary moment

The very nature of the PWDVA and its various provisions find repetition across the chapters, but this is understandably to emphasise the strengths of the Act, sometimes as an introduction, and sometimes to underline certain, significant provisions in context.

Calling the PWDVA a milestone in our judicial history would be an understatement. The PWDVA is one of those sterling pieces of secular, social legislation with a stupendous coming together of grassroots' action with political will. It is a shining example of a modern law that has emerged ground-up in tandem with legal activism.

Clearly, the PWDVA is nothing short of a revolutionary moment in our judicial history. It is a very practical law that has envisaged civil remedies, going beyond the IPC, the CrPc and the personal family laws. It sought to fill the vacuum left by the criminal laws and its secular orientation meant that no woman, irrespective of her religion, or her status in the household, would be left out.

Many of the writers have also highlighted the hurdles in implementing the Act in spite of its far-reaching potential. Often as we find that in spite of the best intentions on paper, the systemic and structural inequities are far more formidable to overcome. The PWDVA to that extent faces many challenges from home to court. But it exists, it is used, and justice has been served as well. Essentially, amazing women and some amazing men have put together an amazing law.

Conflict In The Shared Household: Domestic Violence and the Law in India (2019) has been published by the Oxford University Press.