Envisioning a law for the Indian woman | A recollection by Indira Jaising

For the Indian woman, the family - the ‘man’s castle’ - has never been a safe harbour, never safe from violence. Twenty years ago, the DV Act was enacted, the ideas of which were sown many more years ago with Lawyer’s Collective, a manifestation of India’s women’s rights movement. But where has judicial culture taken us, and why, despite two decades, has a careful audit of the law escaped our government’s attention?

MANY YEARS AGO WHEN I BECAME A LAWYER, I knew my work would be dedicated to justice for women. This led me to represent women at the workplace but also equally importantly within the family.

Women who were thrown out of the matrimonial home, women who were dependent homemakers, who created safe harbours in their homes but received no recognition for their labour, women who were compelled to have sex with their husbands and women deprived of custody to their children came to me asking the question: “What can I do to be able to live in a violence free home ?”

For a long time, I had no answer to this question except to say: “In all such situations, it was the men seeking a divorce and the women resisting it.” They resisted it not necessarily because they wanted to stay in the marriage, but because they knew that once divorced, they would be thrown out with empty hands. The stigma of being a divorced woman meant civil death.

It was then that I realised that “family law”, as a legal category, did not quite fit, or address, the issues at hand. The family was not necessarily a safe harbour for women. It was always regarded as a “man’s castle”. I also realised that different laws functioned in silos and there was no overarching norm to guide decision makers in how to deal with the situation, how to do justice . It was the vision of the Constitution of India and its embodiment of the rule of law with guaranteed rights that was missing from consideration in conflict situations and in decision making. In fact one judge of the Delhi High Court said that introducing constitutional law into family law was like introducing “a bull in a China shop”. He failed to realise that the bull was already there. Violence was the governing norm of the family, a privilege of the male.

It was the bull that had to be taken out of the China shop.

The family was not necessarily a safe harbour for women. It was always regarded as a “man’s castle”.

The inspiration

Years of working with women facing domestic violence in intimate relationships had informed me that what women wanted was freedom from violence, not an end to the relationship. They wanted a legal forum in which they could negotiate a violence-free space in their domestic spaces, in their shared households. They wanted a violence free future. It was this gap in the law that made me imagine the possibility of a law such as the Protection of Women from Domestic Violence Act, 2005.

In 1984, the Indian Penal Code was already amended to introduce Section 498A that made cruelty by a husband against his wife an offence. This was the first recognition of the fact that a man’s home was not his castle and it could be invaded by the law to prevent cruelty.

No doubt, it had several limitations: the cruelty, for instance, had to be such that it drove a woman to commit suicide. This approach has informed courts in ignoring violence against women in the matrimonial home in all forms except when they are on the verge of death. Worse, the law has been invoked only after the woman is dead. Elsewhere I have described this approach as “concern for the dead, condemnation for the living “