Friday, October 26, 2007

The Domestic Violence Act: One Year On

Indira Jaising has a column in today's Express where she provides snapshots and analysis from a report prepared by Lawyers Collective (which played a pivotal role in pushing the Act through).

"October 26 marks the first anniversary of the Protection of Women from Domestic Violence Act. The law was conceived as a civil law as distinct from the existing criminal law: Section 498A IPC. It was often said that criminal law had no space for settlement of disputes and could give no relief beyond a conviction. It was to meet this need that the new law was passed.

It provided for the right to residence in the shared household, the right to protection orders, gave power to courts to restrain alienation of assets, mandated return of stridhan and other significant reliefs. It defines violence in all its dimensions, from the physical to the sexual and economic. This definition was taken from the UN Model Code on domestic violence and from the Convention on the Elimination of All Forms of Violence Against Women, to which India is a party. It applies not only to married women but also women in live-in relationships, daughters/mothers facing violence in domestic relationships.

... ....The [Lawyers Collective] report shows that the law’s main users are women in matrimonial relationships. A few widows have been able to prevent dispossession by using the law, and some young girls have prevented forcible marriages by fathers. The major breakthrough the law achieved was the declaration of the right to reside in the shared household. Surprisingly, it took independent India 60 years to ensure this right. The law makes a clear distinction between the ownership of the shared household and the right to reside in it. What the law does is to grant the right to reside and not to be dispossessed, except by authority of law. It thus prevents forcible dispossession.

This provision suffered a major setback at the hands of the judiciary. The Supreme Court, even before the ink on the Act was dry, declared in a judgment that a woman could claim this right only in relation to a household owned/ rented by her husband. This means that even if her husband lives with his parents and she has her matrimonial residence there, she cannot claim right to residence there. The judgment not only overlooks the law itself, it also overlooks the existing social reality of the joint family, which continues to be the predominant pattern. The report documents how several courts have been refusing relief to women based on this judgment. It demonstrates that in India women have lesser protection than tenants, who cannot be evicted except by procedure established by law.

There have been major protests around this law. Organisations to ‘Save the Indian Family’ have been formed; women who campaign for the law are being told that they are ‘frustrated’ and are ‘home breakers’. It is obvious that respect for human rights of women in domestic relationships — the premise on which the law is based — is not something intrinsic to the ‘Indian Family’. The right to live with dignity is not conceded to women in the private domain. These attitudes predominate at all levels, particularly in the upper classes, among bureaucrats and decision-makers. They have determined the terms of this debate ignoring the Constitution’s egalitarian values. It is therefore not surprising that the law is not implemented, even when the conferment of rights is explicit in letter and spirit. One of the major recommendations of the ‘Staying Alive’ report is that the Supreme Court judgment be reviewed, to restore the right to residence.

The number of cases filed in different states varies greatly. If 3,440 cases were filed in Rajasthan, Haryana had only 235 cases till July 2007. Manipur, Meghalaya, Nagaland and Arunachal Pradesh have none in the same period. Some states have figures varying from 5 to 65. These figures may or may not reflect levels of violence in the state against women. They may reflect a combination of higher levels of violence combined with greater awareness of the law. Certainly, in Rajasthan, that seems to be the case. The Northeast continues to use tribal customary forums and has not used the law. No data is available for UP, since the high court there did not send the information."

In the remaining part of the column, Jaisingh provides details of the contrasting attitudes of governments in Rajasthan and Andhra Pradesh to the Act, and how that plays a crucial role in influencing the manner in which the Act is implemented. She therefore concludes that

"freedom from violence in the private domain still remains a distant dream for women in domestic relationships, a year after this revolutionary law came into the statute books."


Protima said...

Thank you for this report Arun. I work as a policy consultant with the California Partnership to End Domestic Violence and one of our main sub-committes is the one that deals with implementation of laws that we helped pass. Often there is a huge disconnect between legislation and implementation. We are trying to bridge that gap through trainings, question/answers and one page primers on new laws which we then send out in the field to agencies, shelters and law enforcement. At the state level, we try and influence the relevant departments to follow up legislative intent with implementation through creating new offices and/or allocating budgetary resources. However none of this is possible unless we are able to rally the support of all the grass root level agencies that are directly involved in working with the victims, survivors and families. They are the ones who can tell us what is needed in practical terms to be able to give real teeth to any legislation that has been passed which will help assist their clients. I am a hopeless optimist so for me the fact that such a law was passed is the first step towards being able to finally move towards building process, policies and procedures to assist victims and families.
Protima Pandey

Dilip said...

Section 19(1) of the Act deals with the right of the aggrieved woman to residence in the shared household.  Section 2(s)defines the phrase ‘shared household’:

“’Shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household".

In S.R.Batra and Another v. Taruna Batra (which is the case she refers to), the Court interpreted ‘shared household’ to mean only ‘the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member’, i.e. limited it to those situations specifically covered by the definition. Indira Jaisingh interprets the first part of the sentence (till the conjunction ‘and’) to imply a more general definition and the second part to merely illustrate a couple of instances of it. Thus, in her view (also taken in court in this case), the phrase in question refers to any household where the aggrieved person lives or lived at any stage of the domestic relationship. The judge rejected this view saying:

“If the [aforesaid] submission is accepted, then it will mean wherever the husband and wife lived together in the past, that property becomes a shared household. It is quite possible that the husband and wife may have lived in dozens of places e.g. with the husband’s father, paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in all these homes of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

It is well-settled that any interpretation that leads to absurdity should not be accepted.”

The judge also commented that section 2(s) was ‘not very happily worded and appear[ed] to be the result of clumsy drafting’.

In response to this, she wrote an article in March in the Hindustan Times (also available on the Lawyers’ Collective website which is the link I cite here) criticizing this reasoning as being ‘strange’. The relevant portion of the article is cited below:

“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.”

At a conference in February, she elaborated on the same theme making two additional points:
“1. There is detailed discussion on the ownership pattern of matrimonial homes.
2. There is the finding that the mother-in-law had paid for the purchase of the home by herself alone and hence it was her self- acquired property.
Now what is staring at your face is the fact that the section says ownership is irrelevant to the
question of relief under this law or to the question of residence because this Act does not create any property right, it simply creates the right to residence and the right to not be dispossessed without due process of law. However, the court uses that as an argument to say that it could not grant the injunction and the High Court was wrong in granting injunction. Then, there is what I consider to be an attack on all of us in the women’s movement. We have never told Justice Sinha and Justice Katju that we have drafted the Act but somehow reading newspaper they have come to know that the Act has come after lot of lobbying from the women’s movement and therefore they make it a point to say that the Act is clumsy. It is clumsy and absurd because it is not drafted by the law department of the Government of India. I thought that it was vetted by the law ministry before it was passed and I do not see that Government of India would have passed a law without looking at it and of course there are people sitting in the Lok Sabha and Rajya Sabha who had voted for it. So whether the target of this barbed attack was the women’s group or the MPs or the law ministry we don’t know, but may be someday we will find out. But they did say that it was a very clumsily drafted law. Why do they come to the conclusion that it is a clumsily drafted law? They say that if this is the interpretation of ‘has lived’, mind you, here is a woman saying that she wants to go back to her matrimonial home, what if she stays in her brother’s house for a day, she would then say that her brother’s house is her matrimonial home. I think what the SC ignored, is the fact of conjugality and what it ignores is what we call conjugal relations and when we talk of a domestic relationship we mean a relation of conjugality in the context of marriage or a relation of consanguinity in a relationship of non-marriage and therefore it would be impossible for a women to claim that although she lived in her brother’s house for a day it would be her matrimonial home and that she now had right to stay there permanently. There is a distinction in using a home as a matrimonial home or shared household and using it as a guest. I would have thought that learned judges would have known of this legal distinction but it seems they may not, so they have given this judgment. And to avoid any absurd interpretation they have said that the law is badly drafted.”

Taking up her last point first: that there is a distinction between being a guest and being in a matrimonial home, with only the latter being a shared household. She does not say precisely how the judge ought to have made this distinction but appears to suggest in the above para (though I am not sure whether I understand correctly what she implies) that ‘shared household’ cannot include living with her brother because ‘domestic relationship’ includes only a conjugal or consanguineous relationship . ‘Domestic relationship’, as defined in section 2(f) states: ”‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”. A brother is as much a family member and if the woman lived with him, it would be as much of a domestic relationship as one she may have with her in-laws (perhaps more given that she is likely to have grown up with him and stayed with him till marriage). Also note the circular definition:  ‘domestic relationship’ includes people living together in a shared household and shared household means people in a domestic relationship living together itself suggests a poorly worded document (for other problems with definitions, see Sorabjee’s comment in the Indian Express). The definition of ‘shared household’ makes no mention of duration of stay or context and the implications of her definition are wider than what the learned judge stated: it would include her right to claim residence in virtually every household she has resided in, even without her husband, so long as she enjoyed a relationship with at least one of its members. Given this fact, I find the judge’s interpretation to be quite reasonable.

The other point she makes is that the woman has a right of residence, not a right of ownership and therefore, ownership issues are irrelevant to the question of relief. This is correct insofar as she asserts that many of its provisions are intended to grant her relief rather than a title of ownership. Yet, that right of residence clearly brings with it, certain limitations upon the owner. Section 19 has several provisions giving the Magistrate authority to restrain the owner including preventing the disposal of property. The claim that the two questions are unrelated is clearly false. Though she may have no title, by her ability to impede changes to the property, she wields considerable power over it if not a veto and can certainly stake a claim in return for forgoing it.

The larger question is whether anyone other than her husband ought to be compelled to assume responsibilities or face restrictions on their own property.  Yes, if you ask Jaisingh: if the husband runs away, the in-laws should be bound to take over responsibility. Apparently, the notion is that this Act also brings with it a sort of vicarious liability for the husband’s parents and perhaps other relatives.

Dorji Namgyal said...

Dilip, excellent comment!
Your analysis of Batra is spot on. Any other conclusion would be absurd.