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Another Step Towards Gender Justice, but Miles to Go

There is a need to reconsider many more past judgements which have been written from a gender blind perspective.
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On Friday the Supreme Court held in Satish Chander Ahuja vs. Sneha Ahuja that a woman fighting a domestic violence case against her husband cannot be dispossessed from her matrimonial household on the ground that her husband does not wholly or partly own the property. Interpreting section 2(s) of the Prevention of Women from Domestic Violence or Domestic Violence Act, 2005, the top court held that a shared household does not only mean the household of the joint family which the husband is a member of or had a share of property in. A shared household can also include the household where the aggrieved woman was staying at the time when her application under the Domestic Violence Act was filed.

This progressive interpretation would allow women to be more confident about filing domestic violence cases as it removes the lingering fear of eviction, homelessness and consequent economic distress.

Despite a number of progressive legislations related to family law, there was a curious legal vacuum in India in terms of civil remedies available to victims of domestic violence. The Domestic Violence Act attempts to fill this vacuum by providing a number of civil remedies such as protection orders to prohibit respondents from continuing acts of violence, monetary relief including compensation for loss of earnings, medical expenses or destruction of property resulting from domestic violence and maintenance of the victim and their children, custody orders in favour of the aggrieved and residence orders to prevent the woman from being dispossessed from the shared household.

However, within these remedies, the right to reside in the shared household (through a residence order) could not be put into effect because of a 2006 ruling of the Supreme Court in SR Batra vs Taruna Batra. In that case it was held that a woman fighting a domestic violence case against her husband could not reside in the shared household if he was not the absolute or partial owner of its properties.

After this verdict, it often turned out that a husband has transferred all the properties of a shared household to his parents and claimed before the courts that he did not own any property. This would deprive the woman of her right to the shared household. Effectively, women would be evicted from their matrimonial homes as soon as they registered a complaint under the Domestic Violence Act.

This flawed interpretation of the Supreme Court not only defeated the purpose of the Act by rendering her homeless, but it also deterred women from filing complaints against the perpetrators of domestic violence. NFHS data shows that around 75% of domestic violence cases are not reported. The fear of eviction and homelessness was compounded by the lack of support from a woman’s natal family, also a consequence of patriarchal beliefs.

But the Supreme Court has struck a hat-trick of sorts in the field of gender justice this year. After granting permanent commission to women in the Navy, and then in the Army, Friday’s judgement is another attempt to employ feminist practical reasoning. In this mode of legal reasoning the judge considers the law in terms of its impact on women rather than going by “male practical reasoning”.

However, this is just a step in the right direction. The courts need to do much more. For instance, in a July 2017 verdict, the Supreme Court said a perpetrator of domestic violence could not be immediately arrested unless there were visible marks of violence on the women’s body. This has made the very purpose of including “emotional violence” in the definition of violence in the Domestic Violence act redundant. The Supreme Court apparently wished to curb frivolous allegations of domestic violence and cruelty against “innocent men” even though there is little evidence that laws are misused by women and ample evidence of growing prevalence of domestic violence. Data also shows that around 5.5 crore women face domestic violence every year while a meagre 1.1 lakh cases are filed under section 498A of the Indian Penal Code, which relates to harassment of a woman for dowry.

For a very long time, family laws only provided for the way to get into a marriage and the way to exit it. The law was silent on what happened between those two points of initiation and end of the institution of marriage. Section 498A of the IPC which was brought into force in 1983 provided for a fine and a punishment for three years, whenever an individual subjected their wife to cruelty. Nevertheless, arriving at conclusions without having a statistical basis for them, as in the 2017 judgement, reflects the patriarchal biases that operate in the minds of judges. Therefore, there is a need to adopt feminist practical reasoning in more and more cases, as was done in Satish Chander. Further, there is a need to reconsider and rewrite judgements from the past which have been written from a gender blind perspective. Gender blindness, according to the United Nations’ definition, means ignoring the socially determined gender roles, responsibilities, and capabilities of women and men.

Ultimately, it is for Parliament and the executive to hold the baton of gender justice and frame inclusive policies as also implement them with commitment. But till that happens, it is for the Supreme Court to bring in change. It may come one step at a time, leaving miles to go.

The author is a student at the National Law School of India University (NLSIU), Bangalore. The views are personal.

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