Women and Domestic Violence Law in India

A Quest for Justice

Shalu Nigam

• Publisher: Routledge India
• Year: 2019
• Print ISBN: 9780367777715
• eBook ISBN: 9781000692037
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

This book critically examines domestic violence law in India. It focuses on women's experiences and perspectives as victims and litigants, with regard to accessibility to law and justice. It also reflects on the manner in which the legal process reproduces gender hierarchies.

This volume:

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• Analyzes the legal framework from a gender perspective to pinpoint the inherent stereotypes, prejudices and discriminatory practices that come into play while interpreting the law;

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• Includes in-depth interviews and case studies, and explores critical themes such as marriage, rights, family, violence, property and the state;

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• Presents alternatives beyond the domain of law, such as qualitative medical care and legal aid facilities, shelter homes, short-stay homes, childcare facilities, and economic and social security provisions to survivors and their children.

Drawing on extensive testimonies and ethnographic studies situated in a theoretical framework of law, this book will be of great interest to scholars and researchers of law, gender, human rights, women's studies, sociology and social anthropology, and South Asian studies.

1 Conceptualizing domestic violence

“In this silent war (domestic violence and dowry violence) waged by society against women more lives have been lost than in any war on the frontiers of independent India”.¹

“NIA ends Kerala probe, says there’s love but no jihad”, reads one of the news items published in the Hindustan Times on 18 October 2018. In this famous case, a young woman, Hadiya (alias Akhila Asokan), converted to Islam and got married to Shafin Jahan. This marriage was annulled by the Kerala High Court on the basis of a petition filed by Hadiya’s father. At the insistence of the Supreme Court, the National Investigation Agency (NIA) was assigned the task of determining if inter-faith marriages are taking place because of a larger political conspiracy where Hindu women are coerced into converting and marrying Muslim men through a false expression of love. The NIA examined 11 out of the list of 89 cases of the so-called ‘love-jihad’ cases where parents have complained that their children have been forcefully converted. The investigation revealed that in 4 of 11 cases, Hindu men have embraced Islam, and in the rest Hindu women married Muslim men of their own will. The Supreme Court later set aside the order of the High Court in Hadiya’s matter.²

This incident shows the manner in which the imaginary concept of ‘love jihad’ has been evoked by the state as well as Hindu fundamentalists.³ A patriarchal propaganda similar to this was evoked in 1920, 2009⁴ and 2014 in Uttar Pradesh, where an aggressive systematic campaign was planned by right-wing organizations to orchestrate inflammatory appeals while polarizing social boundaries around the bodies of women.⁵ Hindu women have been projected as innocent victims at the hands of inscrutable Muslims while ignoring the concept of agency or choice, including women’s legitimate right to love someone. Love between two people hailing from different religious communities has been declared ‘anti-national’ and against the idea of Hindu rashtra. In Hadiya’s case, the paternalist state, including the courts as well as the NIA, zealously invaded the personal space of two individuals while interfering and intruding in the ‘private’, legally valid relationship between two consenting adults.⁶

In contradiction to Hadiya’s matter,⁷ Seema,⁸ a 26-year-old from Sultanpuri, Delhi, whom I met in the Karkardooma Court in July 2014, complained:

My drunkard husband used to beat me black and blue regularly and demanded one lakh rupees from my parents. He broke my legs and my jaw got fractured. He tried to burn me alive. And now he has started living with another woman. I ran around for several months to get the case registered but police has not kept him even for one day in jail. The court has ordered for maintenance, but for past 4 years, he has not given anything. My six-year-old child is suffering from crippling disease since her birth. My father has been paying for her treatment but he expired three months back. My brother is refusing to take care of us. I don’t know now what to do?⁹

(2014)

Seema’s case shows that the state agencies have failed to protect the rights of a battered wife and her child. These two cases, that of Hadiya and Seema, show the manner in which the state selectively chooses to intervene in ‘family-related’ ‘private’ issues. Both matters relate to the dignity of women, yet the state made an extensive intervention in Hadiya’s case but not in Seema’s case, even when the latter made a request as per the existing legal provisions. The state assumed that Hadiya’s case has linkages to a grand conspiracy. However, in Seema’s case, the despicable violence committed by her husband, although it negates her rights and dignity, is not seen with the lens of suspicion; perhaps, from the state’s perspective, it does not have larger implications. This case reflects the fact that battered women as wives or citizens do not receive adequate protection by the state when they complain against their abusive husbands. Why is the state reluctant to intervene in domestic abuse matters? The state’s role is as a neutral arbiter remains questionable; because, without looking at the larger repercussions in Seema’s case, it acted arbitrarily in addressing her claim.

There are many women in similar circumstances to that of Seema who are facing violence within the home and also running from pillars to post to seek justice. In fact, in 2016, under Section 498A IPC,¹⁰ 1,10,378 cases have been reported, or almost 12 crimes have been registered per hour.¹¹ Also, in the same year, 7,621 cases were registered under Section 304B IPC, the law pertaining to dowry deaths. The conviction rate is 9.5 percent in cases pertaining to Section 498A and 39.1 percent in cases of dowry deaths. Thus, the lived experiences of women and the available data indicate that neither the courts nor any investigation agency is keen to provide justice to women in domestic violence cases despite the existence of favorable laws. Perhaps women’s rights in situations of domestic abuse are least prioritized by the state.

As I worked on the drafts of this book, an interesting phenomenon took place in the larger socio-political context. On the one hand, the number of incidents relating to crimes against women is rising and brutal incidents of violence are being reported in Kathua, Unnao, Mandsaur and other places;¹² at the same time, the Supreme Court has pronounced significant decisions relating to ‘Triple Talaq’,¹³ decriminalizing homosexuality¹⁴ and declaring Section 497 IPC relating to adultery as violating constitutional provisions.¹⁵ The court, while pronouncing the latter two decisions, has extensively focused on the concept of individual autonomy and the sexual independence of consenting adults. Meanwhile, the verdict pronounced in the Sabrimala case upheld that devotion cannot be subjected to discrimination,¹⁶ though the entry of women in the age group of 10 to 50 years is being violently resisted by several right-wing protestors.¹⁷ During the same period, the debate pertaining to the MeToo movement gained momentum and a union minister was forced to resign when several journalists accused him of sexual harassment,¹⁸ and a dismissed employee filed an affidavit against the chief justice of India, alleging harassment.¹⁹ The situation therefore is tempestuous. On the one hand, the courts in several cases are liberally interpreting the rights framework, and on the other hand, there are forces which are insisting conservative traditions be preserved. Yet, on another extreme, several women are courageously resisting the power structures by sharing their experiences of workplace harassment while naming and shaming the perpetrators, and others are trying to enter the temple – despite resistance – asserting their lawful claims.

Among all these incongruities and contradictions, there are abused women who are fighting their painful battles as wives and citizens against their violent husbands. These women undergo tough struggles while resisting violence and challenging their abusive partners within the social domain before they reach the courts. Their journey to justice is not easy.²⁰ The courts, which are liberally interpreting rights in all other cases, are turning litigating wives away as ‘liars’ or ‘gold diggers’ who are ‘falsely accusing their husbands and in-laws’. For instance, the Supreme Court in Arnesh Kumar vs State of Bihar²¹ in 2014 issued guidelines relating to arrests in cases pertaining to Section 498A on the presumption that the law is being misused by ‘disgruntled women’. On 27 July 2017, the two-judges bench of the apex court in Rajesh Kumar vs State of UP,²² while noting the misuse of Section 498A, recommended setting up family welfare committees comprised of paralegal volunteers, retired persons and wives of officers, among others, who could scrutinize complaints made under this law, after which arrests could be made. Later, after a protest by women’s organizations, these directions were modified by a three-judge bench on 14 September 2018, in Social Action Forum for Manav Adhikar vs Union of India²³ where it ordered the formation of committees be done away with while retaining the provision relating to arrest and bail for the accused persons. Thus, the courts upheld the prerogative of violent husbands to chastise their wives and refused to apply the common law provisions in cases tried under 498A.

Even earlier, in a spate of decisions, the courts have declined to apply the common law provisions while adjudicating the claims of married women. For example, the Delhi High Court in Harvinder Kaur vs Harminder Singh Choudhary²⁴ held that the

[i]ntroduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14 have any place. In a sensitive sphere, which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond.

This view was reaffirmed in several other decisions pronounced by the Supreme Court.²⁵ The sanctity attached to marriage is linked to the unwillingness to intrude therein.

Such a situation gives rise to several questions. Why are the laws made to protect the rights of women within marriage not facilitating them to seek remedies? Are the existing laws against domestic abuse sufficient enough to eradicate or prevent this crime and to provide justice to women facing violence? Is wife battering considered a seriou...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Abbreviations
• Introduction
• 1 Conceptualizing domestic violence
• 2 Legislating the laws relating to domestic violence
• 3 Fighting against domestic violence: weaving stories of pain and courage
• 4 Women’s experiences with the law and the legal system
• 5 The economics of love: women’s rights within families and a changing economic paradigm
• 6 Adjudicating domestic violence in the courts
• 7 Conclusion: how easy is access to justice for women?
• Glossary
• Index