See Part 1 of the series: "Is the Indian law on domestic violence fit for purpose?"
And Part 2: "A jail not a shelter: women's refuges in India."
The Gujarat High Court. Only a fraction of domestic violence cases ever get here. Credit: Public Domain.
I focus on the lower Judiciary because all domestic violence cases start their life here, only a minute fraction of these cases progress to the High Court and an even more minuscule fraction make their way to the Supreme Court. Most women’s experiences of the judiciary is overwhelmingly determined by lower court adjudication which, based on experiences of survivors of gender based violence who I have interacted with, is far from satisfactory and very short of the constitutional ideals of gender equality.
The Lawyers Collective’s (LC) sixth monitoring and evaluation report reveals gaps in the judiciary’s understanding, knowledge and application of the law. The law recognises the need for emergency response and relief and provides for: ex-parte and interim orders which give survivors protection from violence and threats; residence orders which provide women with somewhere to live or the option to continue to live in the shared-household; and maintenance orders, which give the woman some income to maintain herself and her family whilst the court proceedings are continuing.
There is some evidence that the courts are beginning to take account of the comprehensive definition of domestic violence (see part 1) and exercising the considerable powers given to them to enforce women’s fundamental right to live free from violence in the home. However, the vast majority do not question the discriminatory context and norms of gender based violence and subordination of women. Judgements revealed a poor understanding of what constitutes abuse: one judge refused to accept that denying a woman the choice to have a baby in hospital and the pain she suffered as a result of giving birth at home could constitute physical or emotional abuse, hence all remedies sought were denied on the grounds that it was normal to feel pain at the time of delivery! In one case cited in the report, a woman who alleged that her husband had started drinking alcohol and beating and insulting her when intoxicated was met with disbelief, the Judge refused the protection order on the basis that ‘parties had been married for twenty-four years, and no person would start drinking alcohol and harassing his wife after so many years of marriage.’
In Ganga’s case, for example, the magistrate was indifferent to Ganga’s need for interim relief. “Ganga” was worn out by the routine delays and an unsympathetic magistrate. Ganga’s application for a residence and protection order was scoffed at by the Judge who warned her that she was standing with her two legs in two different boats and that it was in her interest to keep both legs in one boat. He could not get his head round the idea that she had no choice but to live with her husband and in-laws in the shared household but she needed protection from the violence! Ganga was able to secure a protection order after much delay; had the Judge understood PWDVA’s purpose, he would have granted an interim order quickly to allow Ganga to sustain the will to continue her legal fight.
The delay in Ganga’s case combined with the deeply misogynist culture and her economic condition led to a heart-breaking compromise. Ganga gave up all her claims and withdrew her application in its entirety, handed over Tanya, her daughter who was about three to her husband’s family not because her husband or family had contested Tanya’s custody, or made any efforts to have contact with Tanya after she left her father’s home almost two years before. No, the handing over of Tanya was brokered by influential community leaders to end the long running court saga. The responsibility of Tanya would transfer to the paternal family so that Ganga could remarry as, her parents explained to me, no one would marry her with a young child. I use this case study with the judiciary in training and some of them are shocked to realise that delay can have such tragic consequences. I understand delay is a complex systemic issue affected by lack of resources, budgets, number of judicial vacancies etc that the lower judiciary do not have control over. But what they can do by their words and actions is show some empathy and sensitivity and exercise their judicial powers to grant the necessary relief to women like Ganga.
The report shows that, in most states, the judiciary is making interim orders in only 15 per cent of the cases. This is very significant because the failure to make interim orders denies women the key remedies of maintenance, protection and the security of housing to continue with the complaint till the final order which may take months or years. Survivors are therefore coerced to either withdraw or agree separation on terms that are far less generous than that provided by the law as in Ganga’s case.
This needs to be addressed urgently given the failure of the lower courts to complete proceedings within the 60 days stipulated by the Act. In Gujarat, the average time for domestic violence proceedings is between 1-2 years, but there are cases continuing beyond two, and exceptionally, three years, which defeats the intention of providing a quick remedy to women.
The law also provides that Judiciary can grant relief to a woman applying in person or through a service provider without ordering a DIR (Domestic Incident Report) by protection officers which, as discussed in part 1, causes considerable delay. However, there is no data to show the percentage of cases in which Judges are making emergency, ex parte or interim orders without ordering a DIR first.
Another important aim of PWDVA was to provide women the option of securing all the immediate relief required in one court (the one window clearance system) rather than having to approach different courts for different reliefs as they had to previously, as discussed in part 1. The increasing popularity of PWDVA compared to other legislations shows that survivors prefer the convenience of securing all remedies in one court. There was a marked unawareness of this amongst the lower judiciary and resistance to its use. However, I feel with increasing familiarity with the law, training and conferences organised by the state and the National Judicial Academy, these technical issues will be resolved; what is much more difficult to change is their patriarchal ideology.
The third evaluation report by LC revealed that many magistrates did not disagree with the idea that a women sometimes needed to be disciplined by their husbands. “Manilla”, one of the Peace and Equality Cell cases, who had filed proceedings following a violent assault for the second time agreed to a compromise for the sake of her son’s educational and economic future. She was however extremely embarrassed when the Judge commented, in the presence of her husband, that in future she should not leave home and file court proceedings but tolerate a few slaps here and there to keep the family together. Such off-the-record misogynistic remarks, coupled with many discretionary exercises of power to grant adjournments which delay court proceedings endlessly, force many women into needless compromise. I wholeheartedly agree with the architect of this law, Indira Jaising, when she says: “To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimize the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements”.
Finally, a word of caution. This analysis is largely based on experiences in Gujarat. Implementation is inconsistent even between two neighbouring states. However, there are some issues that apply to almost all states: insufficient budget allocation; lack of appropriate data collection; lack of suitable coordination and monitoring systems to measure infrastructural support; and training and functioning of the most important stakeholders, namely protection officers, counsellors, service providers and the lower judiciary.