A marriage has four walls

The question arose in the context of a tenancy. In the case in question, the husband was the tenant of the premises where the husband and wife lived. He simply abandoned the premises and walked out on his wife, leaving her to face eviction proceedings by the landlord. She made an application to resist the eviction and applied to be added as a party to the proceedings. This application was opposed and the case finally reached the Supreme Court. The Court discussed the nature of a wife’s interest in property tenanted by her husband, which was used by the parties as the matrimonial home. Since it was the case of a Hindu woman, the court confined its decision to Hindu law. This seems strange, considering that the precedents relied on were all from the courts in England. Be that as it may, the court unambiguously held that the wife had a right to continue in occupation of the home during the subsistence of the marriage, although the tenancy was in the name of the husband. She had the right to resist eviction proceedings.

The court went on to hold that the situation would be different if there had been a divorce between the husband and wife. In such a case, one would have to look at the terms of the divorce agreement, and if there was no agreement, to look at the terms of any court order granting alimony or settling the dispute. As it finally turned out, in the present case, the husband had divorced his wife during the pendency of the eviction proceedings. She won the battle but lost the war. The court held that she had not brought on record the terms of the divorce deed to indicate what rights had been conferred on her at the time of divorce.

There lies the problem of most women. Hardly any woman is in a position to negotiate a decent settlement at the time of divorce. In law, all she is entitled to is alimony, which is ordinarily paid in periodic monthly payments. Courts have no power to mandate the transfer of property to a divorced wife as part of her alimony. The Supreme Court judgment will go a very long way in protecting the right to reside in the matrimonial home. The Court has been highly conscious of its historic role in bringing about social transformation. Justice Lahoti records “Law, as administered by the courts transforms into justice — the law does not remain static. It does not operate in a vacuum. As social norms and values change, laws too have to be reinterpreted and recast. Law is really a dynamic instrument fashioned by society for the purpose of achieving harmonious adjustment of human relations by elimination of social tensions and conflicts.” It is hoped that these observations will serve as a guideline for judicial function in the future.

There are several unanswered questions. Is social justice for Hindu women alone? Are Hindu women favoured by the Indian Constitution? What about divorced women of all communities? What about women facing domestic violence, an issue cutting across caste, creed and religion?

As the Court points in the UK, after several progressive judgments, the legislature stepped in to codify the rights of women and passed laws defining the rights of women to the matrimonial home and domestic violence laws. The unfinished agenda is that of Parliament. A heavy burden is cast on Parliament to enact appropriate laws recognising the rights of all women in conflict situations and in situations of marital breakdown. The courts have done their job, now it is for Parliament to do its job.

For several years now, the women’s movement has been demanding a domestic violence law that will recognise the right to reside in a shared household and provide remedies against eviction and forcible dispossession. The NDA government did introduce a law, which on examination turned out to be a law giving the right of self defense to men who were violent! Mercifully, Parliament was dissolved and the law lapsed. The present UPA government has in its national common minimum programme promised a law on domestic violence. There are no signs yet of the law. This insincerity to a much-neglected constituency is unforgivable. There are perhaps no electoral gains to be made from a law on domestic violence. The Court now has shown the way. Any alibi that the government may have had for not passing such a law, stands eroded with this judgment. Perhaps the guideline on the social justice role of the courts needs to be addressed to Parliament.

The chairperson of the National Commission for Women will have much to answer for. So will the National Advisory Committee, which has failed to move the issue forward. A reading of this judgment will do them all some good.