Home is where the law is

The new law sends out an important message: the state will not tolerate violence within the family. While the NDA government too had introduced a bill in Lok Sabha seemingly to protect women from violence within the family, it had no definition of violence. It was confined to married women and gave no protection to other women in intimate relationships such as sisters or mothers or widows facing the threat of dispossession. It gave to the aggressor a right of self defense, which would only have legitimised the violence faced by the victim. Most importantly, it lacked any declaration of rights, in particular the right to reside in the matrimonial home. The bill lapsed when Parliament was dissolved in 2004.

The present bill defines violence as including physical, mental, economic and sexual violence. Unfortunately, debates over violence against women in family relationships have been dominated by the issue of dowry, ignoring other forms of violence. This definition will enable them to resist all violence, including being denied the means of sustenance or having their mobility or autonomy restricted. It covers daughters living in a domestic relationship facing violence from a male member. It also covers elderly mothers and widows who face dispossession by their sons from the household. Most importantly, it gives to women a right never explicitly spelt out in any law before, that is, the right to reside in the household.

It may seem strange that more than 55 years after Independence, such a right did not exist. Women in marital relations have faced dispossession from the household during the subsistence of a marriage and most definitely after the marriage. The right to reside in the household was made dependent on ownership rights. Given that most households are in the names of the husband, this right has eluded them. Under this bill, the right to reside is not dependent on ownership of the home, but on the fact of being in a relationship and living in a shared household. It is surprising that women in domestic relationships did not even have the rights of a tenant or of a trespasser who cannot be thrown out except by a court order. This bill is a historic step towards securing the rights of women.

The bill also protects women living not just in marriages, but also in relationships in the nature of marriage. MPs across party lines rose in Parliament to suggest that this provision encourages immorality. Our MPs were unwilling to admit that several people do live in relationships outside of marriage. Incidentally, it is not illegal for two adults to do so. All the bill says is that such women too cannot be treated with violence.

In defining ‘‘domestic relationship” by focusing on those who share a household, the bill moves to a concept of “family” more inclusive than the existing concept of family. There is another criticism of this provision, that it will confer rights on the “other woman” and undermine the position of the wife. Let us examine this carefully. There are innumerable cases of women who have been led to believe that they are lawfully married. Often the fact of a previous marriage has been concealed from them. Registration of marriage is not compulsory and there is no register that can be checked to find out if the man has a previous wife. When disputes arise in such unions, the man turns round and says in court that his second “marriage’’ is not valid and therefore the woman is not entitled to any protection. He succeeds in his arguments, as the law deals only with lawful marriages.

Now let us examine whether existing laws protect the lawfully married wife. Prosecutions for bigamy by the wife have failed on the ground that she is not able to prove that her husband actually married the other woman. It is not enough to prove that he is living with another woman, she must prove that he married her in accordance with the law. This means, among Hindus, that he went through the saptapadhi, an impossible task. In effect, under existing laws, neither the first woman nor the second is protected by law. The bill, far from conferring rights on the “other” woman, prevents violence against both.

There are some very important provisions in the bill that require attention. For the first time it casts an obligation on the government to provide shelter to women in distress. It also casts an obligation on the medical profession to attend to women who come with the complaint of violence without insisting on a police complaint. There is an obligation to provide legal aid and to publicise the provisions of the bill through the media. Protection officers are to be appointed to assist the court in executing its orders. NGOs have been given the right to record domestic incident reports.

The gap between a law and its implementation is very vast. While the UPA government has shown the will to pass the law, only time will tell if the rights under this bill will become a reality for women.

The writer is a senior advocate in the Supreme Court