Blind to what, Your Honour?

JUSTICEINDIRA JAISINGH IN THE TIMES OF INDIA

Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.

The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.

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, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.

This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.

It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.

This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.

Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.

It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.

Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.

The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.

Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.

All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.

A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.

A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.

The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.

It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.

We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.

The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.

The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.

The writer is Additional Solicitor General of India

INDIRA JAISINGH IN THE TIMES OF INDIA

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Our Worst-Kept Secret

Violence against women in the private realm is relegated to secondary status, whether in India or in the United States. Strong laws and public policies are essential steps toward combating such violence. But the real solution lies in a culture shift, in the world, and in each of our homes

MALLIKA KAUR  TRIBUNE CHANDIGARH

Three friends walked home after another tiring rehearsal for the school function. It was barely dusk. When the man leapt out of nowhere to pounce on Bandana (name changed), no one was sure what happened. Then a yell grew out of one belly and found its way down the road, down their backs, and into small eighth-grade fists that pounded on the man. He ran. The girls were proud they had fought. When they got home, they told the story solemnly. “Well, that’s what happens when you go walking around in the evenings, going out like that alone!” Bandana’s father message was clear — Chandigarh, 1997.

Brushed under the carpet

The message young girls begin receiving from our families, friends, and society becomes engrained by the time they reach womanhood: that we must not make the unforgiveable mistake of becoming victims of violence. While violence by strangers at least provides some room for women expressing their agony and demanding redressal, violence within the home remains a taboo topic. And this taboo crosses geographic, ethnic, and racial borders.

Victims of domestic abuse

On 17 August 2011, the Inter-American Commission on Human Rights published its opinion finding the United States on the wrong side of human rights and domestic violence survivors. The Commission had considered the case of Jessica Lenahan (formerly Gonzales) whose three young daughters were abducted by Lenahan’s abusive husband, Simon Gonzales, in Castle Rock, Colorado in 1999. Despite Lenahan’s repeated calls and pleas to the police, reporting that she already had a domestic violence restraining order (a legal remedy the US has made relatively easily accessible to its residents) against Simon, the police failed to act for 10 hours. Eventually, Simon Gonzales drove up to the police department and opened fire. He was shot dead by the police. The three girls were subsequently discovered shot to death inside Simon’s truck. Jessica’s legal battle for this tragic loss yielded no results.

In 2005, the US Supreme Court even found that the police involved had not violated the US Constitution by their inaction. However, the Inter-American Commission found that the US had indeed violated human rights by failing to uphold its laws to protect its nationals from domestic violence.

Laws alone not enough

In India too, domestic violence is a punishable offense under the law, even if only rather recently. The Protection of Women from Domestic Violence Act, 2005, which became effective starting October 26, 2006, clearly recognised domestic violence as a punishable offence. However, the recent shaming of the US—a country that has innumerable times more extensive legal protections and services for domestic violence survivors-provides a moment of pause from comparing the wide (perhaps incomparable) chasm between the two legal systems and rather understanding a sad commonality. Laws alone cannot curb violence in the homes as long as domestic violence continues to be treated ‘special’. When it comes to such crimes, we often hear: “There must be two sides to the story” or “they both have strong personalities” or “he is frustrated since he lost his job.”

But, consider this scenario: if my neighbour loses his job, and proceeds to pick fights with me every day, gets drunk and curses me, breaks a window, wouldn’t you agree with my decision to call the police, whether or not he ever physically touches me? But if my partner does the same, why shouldn’t he conform to the standard of behavior, the law and society demand from my acquaintance-neighbour?

Breaking uneasy silence

Such uncomfortable discussions are thus largely missing in our living rooms. The domestic violence movement in the US has been asking precisely such questions more publically, loudly, and brazenly, than in many other parts of the world. For example, during October, nationally recognised as ‘Domestic Violence Awareness Month’ in the US, several public awareness activities are undertaken country-wide. During ‘Standing Silent Witness’ hours, women and men line up in busy city squares holding placards or wearing T-shirts with slogans acknowledging someone they know (or know of) who has faced domestic violence. During ‘Remembrance Days,’ survivors, allies, advocates, join together to remember those who have died because of domestic violence and also celebrate those who have survived. Purple ribbons, which have become the symbols of solidarity with anti-domestic violence work, are made into pins and passed out at local events; worn on bags and jackets; and hung on doors.

In India, we saw the Bell Bajao campaign, by the non-profit Breakthrough in 2008. TV, radio, online and print media were employed to circulate catchy calls for action by society to take a stand against domestic violence. To break the uneasy silence.

Measuring domestic violence

The anti-violence movement in the US has also promoted the measurement of domestic violence crimes, and the publicising of the statistics, so as to respond to the universal reaction—“We aren’t that kind of a family!”

On an average, according to the US Bureau of Justice Statistics, more than three women and one man are murdered by their intimate partners in the US every day. The Center for Disease Control has found that one in four women and one in nine men in the US report being victims of domestic violence at some points in their lives. Also, more recently, teen dating violence has been studied as a priority: approximately one in five female high school students report being physically, sexually, or emotionally abused by a dating partner.

In India, the National Family Health Survey (NFHS), 2005-06, recorded that 37 per cent women reported being survivors of spousal abuse; that is more than 1 in 3. These statistics show that most of us know someone who is a survivor of such violence, and all of us then are in fact ‘that kind of a family.’

Violence knows no bar

When I began representing domestic violence survivors in Californian courts, one of my mother’s friend’s asked her in all earnest, “So is wife-beating really a problem with Americans too?” (She clarified later that she meant ‘white’ Americans, of course.) My work has borne out the statistics that domestic violence knows no race, class, or religious boundaries. However, socio-economic factors can increase vulnerability for such violence: for example, if someone has no source of income, her abuser knows that her economic situation will prevent her from speaking about the violence or seeking help.

Domestic violence is a human rights problem that exists across borders, as the Inter-American Commission recently reminded the US—It is not a ‘women’s issue’ rather affects boys and men very severely. Indeed, India’s Protection of Women from Domestic Violence Act, 2005, does not cover men, and most commentaries on domestic violence-including this one-refer to the perpetrators of violence as male and the victim as female. This is simply because domestic violence victims are disproportionately female. However, men can be and are victims of violence by their partners in some cases as well, both in homosexual and heterosexual relationships. Moreover, this violence does not take place in a vacuum.

Children, girls as well as boys, are witnesses to such violence. Even if they are themselves never the direct targets of the violence, they bear the emotional costs of growing up in an environment of repeated cycles of fear, escalation of tensions, outbursts of violence, and misleading periods of calm. Studies show that children who grow up in violent homes, either themselves become vulnerable to being abused as adults or have a higher likelihood of becoming abusers in the future. This ‘cycle of power and control,’ which broadly describes domestic violence, has its immediate and collateral victims.

Move beyond campaigns

Campaigns such as ‘bell bajao’ or ‘standing silent witness’ or ‘remembrance days’ focus on cases where there are identifiable victims, in already violent relationships. Some of us might then still participate in these campaigns and still claim, “We aren’t that kind of a family!”

What would truly make us not one of ‘those’ families is if we start to check our everyday responses to gender inequalities and discrimination. Unless we stop calling street harassment ‘eve teasing;’ stop worrying about protecting our girls’ reputations even at the costs of their safety; stop spending more time, money and energy on weddings than on talking about healthy relationships and marriages, we will not stop domestic violence. Only when three friends can walk with safety as well as the security of the knowledge that they will not be judged should they face harm by someone, whether on the street or in the home, can we begin to feel assured that we are progressing towards equal justice for all.

Cycle of Power and Control 

Intimate partner violence or domestic violence (DV) is controlling, abusive, and aggressive behavior in an intimate relationship . It includes verbal, emotional, physical, and/or sexual abuse.

DV usually comes to public notice only in extreme cases of physical abuse.

However, behind closed doors, such violence typically follows a regular pattern of three phases that repeat themselves:

One, the ‘tension-building’ phase. The abuser becomes increasingly irritable, moody, impatient, resulting in his partner “walking on eggshells,” not knowing what might make the abuser more angry.

Two, the ‘acute’ phase. There is some sort of explosion and violence that may be verbal, physical, and/or sexual.

Third, the ‘honeymoon’ phase. There is calm again. The abuser may apologise or pretend like nothing happened and may bring flowers and chocolates. The partner starts to feel relief. That is till the ‘tension-building’ phase begins again.

There is thus a clear difference between common, everyday disputes between couples and domestic violence.

Three things to tell someone who is facing such violence: I believe you / You are not alone /You have options

The writer is a lawyer who focuses on  gender and minority issues in the United States and South Asia.

http://www.tribuneindia.com/2011/20111102/edit.htm#6

 

“Commitment” to live together

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OP ED PAGE ARTICLE  PUBLISHED IN THE TRIBUNE CHANDIGARH / DECEMBER 20, 2010

Traditionally, the Indian society might have frowned upon live-in relationships. But the growing number of such couples indicates a degree of acceptance. Women, however, are still the losers

THE ‘live- in-relationship’ is a living arrangement in which an un-married couple lives together in a long-term relationship that resembles a marriage. The Hindu Marriage Act 1955 does not recognise ‘live-in-relationship’. Nor does the Criminal Procedure Code 1973. The Protection of Women from Domestic Violence Act 2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act.

“Merely spending weekends together or a one-night stand would not make it a domestic relationship,” said a bench of Justices Markandey Katju and TS Thakur, cautioning that in future, claims for financial relief arising out of live-in link-ups would increase in India. The Supreme Court of India has noted that just any ‘live-in relationship’ does not entitle a woman to alimony. To make a ‘live-in’ legal the Supreme Court says that the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and they must have voluntarily cohabited for a significant period of time. Making an attempt to iron out certain ambiguous situations, the judges also said that if a man has a ‘mistress’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship “in the nature of marriage.”

Conscious that the judgment would exclude many women in live-in relationships from the benefit of the PWDVA, the apex court further said it is not for this court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’.

Considering the increasing number of live-in relationships in our times in India, the Supreme Court wants the scope of the provision for maintenance under section 125 of the criminal procedure code (Cr.P.C.) expanded, so that women in such relationships do not face economic deprivation after living in a domestic set-up for long periods of time.

The issue has assumed and rightly so huge dimensions that Justice GS Singhvi and Justice AK Ganguly have urged the Chief Justice SH Kapadia to set up a larger bench to consider whether “the living together of a man and woman as husband and wife for a considerable period would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under section 125 Cr.P.C.?’’ Secondly whether proof of marriage is essential for a claim of maintenance under the section? Also whether a marriage performed according to customary rites, without strictly fulfilling the requisites of the Hindu Marriage Act, or any other personal law, would entitle the woman to maintenance under the section?”

The bench also wanted an expansive interpretation of the term ‘wife’ to include cases where a man and woman have been living together as husband and wife for a reasonably long period. The judges said the PWDVA gave a very broad definition of the term ‘domestic abuse’, which must include economic abuse.

The law traditionally has been biased in favour of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation carries none of those rights and privileges. It has been said in the context that cohabitation has all the headaches of marriage without any of the benefits.

What the PWDVA does is that it deters men from having ‘live-in-relationships’ for the fear of providing maintenance to his partner. On the other hand if a married man provides maintenance to his partner he is denying what was the economic right of his legal wife and children.

What needs to be understood is that the institution of marriage and issues that emerge from it is essentially a concept that needs to be perceived in a time frame and specific context. A set of norms valued and acceptable in one context cannot easily or rather should not easily be planted in another context. Today’s India is changing at a pace that was socially unimaginable say 50 years ago. Issues like ‘live-in relationship’ that were taken up by the western society are gradually percolating into our social norms. The most obvious contributing factor being the transformed urban life which itself is growing from factors associated with urbanisation and increased income, long hours of work, often late in the night and virtually no time for family.

But the issue that needs our conscious attention is that is Indian society ready for this trend? It needs to be noted that whatever one may say the fact is that women will ultimately emerge as the most vulnerable and possibly the greatest losers. Children that result from such relationships are also to be kept in mind. The conventional argument that has always been cited in favour of India’s unique concept of the family being responsible for looking after the young and the aged is also an issue of concern.

The PWDVA is silent on the status of children out of a ‘live-in relationship’. Finally it must also be appreciated that laws and legal obligations notwithstanding foundations of a relationship are based on commitment.

Marriage is just another commitment. If people are shying away from marriages – one reason could be that people are scared of commitments that grow from marriage and are worried– what if it does not work out? Divorce procedures in our country are cumbersome and taxing. May be they need a more liberal reframing so as to decrease the element of fear.

(The writer is Director, Women’s Studies, Research Centre, Kurukshetra University)

What judges said

ON October 21, 2010 a Two-Judge Bench of Supreme Court comprising Justices Markandey Katju and TS Thakur in D Veluswamy vs D Patchaiammal ruled that in their opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the PWDVA, 2005.

Merely spending weekends together or a one-night stand would not make it a “domestic relationship.” If a man has a “keep” whom he maintains financially and uses mainly for sexual purposes and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage. No doubt, the view we are taking would exclude many women who have a live-in relationship from the benefit of the PWDVA Act, but then it is not for this court to legislate or amend the law. Parliament has used the expression “relationship in the nature of marriage” and not “live in relationship”.

Dispel Confusion – BY Hemant Kumar

THE diverse societal opinion on the growing trend of “live-in-relationship” apart, the judicial viewpoint over the same has been rather cautious. Of course, things have undergone a change after the enactment of Protection of Women from Domestic Violence Act, 2005 (PWDVA) whose provisions also extend to women living-in a relationship in the nature of marriage. By doing so, albeit in a veiled manner, the legislature has finally endeavored to accept the contemporary global phenomena appreciated and attempted by some persons among the Gen Next.

In August this year, a Division Bench of the Supreme Court ruled that a live-in which has been long lasting will be considered as marriage and children born out of it are not illegitimate. This verdict came just days after a Delhi High Court ruling which laid down that a partner in a live-in relationship can walk out of it at any point of time without any legal consequence and neither of the partners can complain of infidelity if one deserts the other. It held that “live-in is a walk-in and walk-out relationship. There are no strings attached to it nor the same creates any legal bond between the parties. Such a thing is a contract of living together which is renewed every day by the parties and can be terminated by either without consent of the other party.”

In mid-2008, the National Commission for Women recommended that a woman in a live-in relationship should be entitled to maintenance if she is deserted by her partner. The commission sought a change in the definition of ‘‘wife’’ as described in the Section 125 of Criminal Procedure Code (CrPC), which deals with maintenance and suggested that it should include women involved in a live-in relationship. The move aims at harmonising other sections of the law with the PWDVA that treats a live-in couple’s relationship on a par with that between a legally married husband and wife. The state of Maharashtra also okayed this proposal in 2008 but it requires the final nod of the Centre. Section 125 provides for maintenance of wife, children and parents, who cannot maintain themselves. As of now maintenance can only be claimed by a woman who is a wife, has either been divorced or has obtained a divorce, or is legally separated and is not remarried. It is hoped that the Supreme Court would urgently interpret the whole issue thoroughly in order to ensure that there is no room for any ambiguity for lower courts in the country while dealing with issues related to live-in. Until the concept is granted statutory recognition by Parliament, it is imperative for the judiciary to clear its stand over the same so as to protect the interests of women in such relationships.

(The writer is an advocate Punjab and Haryana High Court)

http://www.tribuneindia.com/2010/20101220/edit.htm#6

Protection of Women from Domestic Violence

The Protection of Women from Domestic Violence Act (PWDVA) is implemented by the States/Union Territories. The State Governments are required to appoint Protection Officers, register Service Providers and notify shelter homes and medical facilities for implementation of the Act. The Implementation of the Act was reviewed in the meeting of the State Ministers and Secretaries in charge of Women & Child Development, on 16-17 June, 2010, and particularly with regard to the appointment of Protection Officers and registration of Service Providers.

The PWDVA is a Civil law meant to protect and provide support to victims of domestic violence. Under the Act, the aggrieved woman can seek various reliefs such as protection order, residence order, custody order, compensation order, monetary reliefs, shelter and medical facilities. The aggrieved woman can also file a complaint under Section 498A of IPC, where ever relevant. A few complaints/representations alleging misuse of the Act together with alleged misuse of 498A of IPC have been received. These complaints are primarily against alleged misuse of Section 498A IPC rather than any specific provision of the PWDVA.

Under the PWDVA, various reliefs are provided to the aggrieved women on the orders passed by the Magistrate after following due procedure. The Act also has a provision for appeal against the orders of the Magistrate. While adequate safeguards under existing laws such as Section 211 of IPC and Section 250 of CR.PC are available to deal with misuse, if any, of legal provisions, the Government in the Ministry of Home Affairs has issued an advisory on 20.10.2009 to all State Governments and Union Territory Administrations to comply with the procedure as directed by the Courts and follow the advisories issued by the Government of India from time to time, to put to rest the allegation of misuse of Section 498A of IPC.

This information was given by Smt. Krishna Tirath, Minister of State for Women and Child Development in a written reply to a question in the Lok Sabha today.

Judges, judgments and women’s rights

KALPANA SHARMA

When it comes to women’s issues and the law, the courts continue to send contradictory signals…

As much as police officers, doctors also need to be taught a rape survivor’s rights.

Two courts. Two judgments. Two attitudes. In the contrast lies the story of what Indian women continue to face when they turn to the law.

On October 21, the Supreme Court, in the context of a case before it, held that a woman in a “live-in relationship” could not claim maintenance in the event of abandonment by the man as such a relationship could not pass as a “relationship in the nature of marriage” as described under the law for arrangements outside formal marriage. The Court held that if the woman was a “keep” of the man, who looked after her financially but “uses mainly for sexual purpose and/or as a servant”, then such a woman was exempted from claiming any benefits of maintenance under the Protection of Women Against Domestic Violence Act 2005 on grounds of abandonment. The ruling led to a justifiable outburst by India’s first woman Additional Solicitor General Indira Jaisingh, who also happens to be one of the main movers of the Domestic Violence Act. Ms. Jaisingh ticked off the judges for using a term like “keep” which she held was derogatory to women and was “male chauvinistic”.

Wrong precedent?

Ms. Jaisingh’s statements in court made it to the front pages of most newspapers. But one wonders how many will pause and think about why she felt she had to raise her voice at the use of such a term in the judgment. It was, as she herself emphasised, because the ruling of the Supreme Court sets a tone and a precedent for future judgments that affect women. One of its judgments in what is called the Vishakha case is even today used as the standard for judging all matters relating to sexual harassment in the absence of a specific law. By using a term like “keep”, you disregard and virtually excuse the responsibility of the man in an arrangement in which two people are involved and where one, the woman, is most likely the more vulnerable. Once this becomes the precedent, any man can go to court and challenge the right of a woman with whom he has a relationship outside marriage, and who demands compensation when abandoned, by claiming that she was merely his “keep”. Therefore, Ms. Jaisingh’s intervention needs to be appreciated, as also her courage for speaking out in the highest court of the land where some others might have felt intimidated.Apart from the Vishakha judgment, the Supreme Court has also passed several orders that make it clear that in a rape case, the woman’s character will not be part of the proceedings during the trial and that it is immaterial to the case. This is also an important precedent in the context of women’s rights. Yet, as is evident from another judgment, in another court in Delhi, the practice continues.

Pronouncing judgment in a rape case on October 23, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called the “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise her in court.When a woman reports rape, she has to go to the police who then send her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to sexual intercourse” by inserting two fingers inside her vagina. Why is this of any relevance to a case where the facts of rape and sexual assault are being determined? Does this mean married women cannot be raped? Does it mean an unmarried woman who has had sex cannot be raped? What does this absurd test actually establish when the woman’s character, or sexual habits, are of no consequence in the matter before the court?

It is heartening to read of at least one judge who was incensed enough to speak out against this test. Judge Lau said, “The test is violative of the fundamental right to privacy of the victim.” She went on to say, “State action cannot be a threat to the constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of sexual offences (even minors) by doctors.”

The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to be taught a survivor’s rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”, the “finger test” remains standard practice in many parts of India including Mumbai and Delhi. In fact, in Mumbai, three leading government hospitals, where hundreds of rape survivors are examined each year, still use this test. The HRW report also reveals that outdated medical textbooks recommending this test are still being used. As a result, each succeeding generation of doctors continue to follow the practice without thinking twice about its relevance or the trauma they are causing the rape survivor.

Intimidating practice

Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to the police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor. Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unless something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are sexually assaulted will continue to hesitate before turning to the law.

Email the writer: sharma.kalpana@yahoo.com

Source: http://www.hindu.com/mag/2010/10/31/stories/2010103150090300.htm

SC EXPLANATION OF LIVE IN RELATIONSHIPS WITH REFERENCE TO DOMESTIC VIOLENCE ACT

The Supreme Court in D Veluswamy Vs D Patchaiammal has explained the definition of Live In Relationships with reference to Domestic Violence Act. The Court in its judgement in the mentioned ruled:

 

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

16.   However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005.

Section 2(a) of the Act states :

“2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”;

Section 2(f) states :

“2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are  related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”;

Section 2(s) states :

“2(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

Section 3(a) states that an act will constitute domestic violence in case it-

“3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;” or (emphasis supplied)

17.   The expression “economic abuse” has been defined to include :

“(a) deprivation of all or any economic or financial   resources to which the aggrieved person is entitled under any law or custom whether payable under an  order of a court or otherwise or which the aggrieved person requires out of necessity including, but not  limited to, household necessities for the aggrieved   person and her children, if any, stridhan, property,  jointly or separately owned by the aggrieved person,   payment of rental related to the shared household and maintenance”.

(emphasis supplied)

18.   An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).

19.   Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.

20.   Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.

21.   In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.

22.   It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide

para 31).

23.   When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.

24.   In USA the expression `palimony‘ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.

25.   Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.

26.    In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him.   There was no sign of a stable and significant cohabitation between the two.

27.   However, the New Jersey Supreme Court in Devaney vs. L’Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather “it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony”. A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.

28.   Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements.

29.   Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.

 

LIVE IN JUDGEMENT

LIVE IN JUDGEMENT

30.   However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.

31.   In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.

32.   Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).

33.   In our opinion a `relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a)      The couple must hold themselves out to society as being akin to spouses.

(b)     They must be of legal age to marry.

(c)      They must be otherwise qualified to enter into a legal  marriage, including being unmarried.

(d)     They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(see `Common Law Marriage’ in Wikipedia on Google)

In our opinion a `relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship’.

34.   In our opinion not all live in relationships will amount to a

relationship in the nature of marriag8e to get the benefit of the Act of 2005.

To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a `keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’

35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage’ and not `live in relationship’.   The Court in the grab of interpretation cannot change the language of the statute.

36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.

37.   However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of   Women from Domestic Violence Act, 2005

THE SC JUDGEMENT

SC JUDGEMENT ON LIVE IN RIGHTS

 

Not all live-in affairs are ‘relationship in the nature of marriage’, says Supreme Court

J. Venkatesan in THE HINDU

NEW DELHI: If a man keeps a woman, this relationship will not be in the nature of marriage for her to claim the benefit of live-in to get maintenance under the Protection of Women from Domestic Violence (PWDV) Act, 2005, the Supreme Court has held.

A Bench of Justice Markandey Katju and Justice T.S. Thakur pointed out that the Act had used the expression “relationship in the nature of marriage” and not “live-in relationship” for the grant of benefit to affected women. “In our opinion, not all live-in relationships will amount to a ‘relationship in the nature of marriage’ [for women] to get the benefit of the Act. A ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that the couple, although not formally married, must hold themselves out to society as being akin to spouses. They must be of legal age to marry. They must be otherwise qualified to enter into a legal marriage, including being unmarried. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.”

(Earlier this month, Justices G.S. Singhvi and A.K. Ganguly referred to a larger Bench the issue relating to grant of maintenance to women in live-in relationships; whether it could be done under Section 125 CrPC or the PWDV Act.)Writing the judgment in this case, Justice Katju said: “Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship’.

“To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’. The court, in the grab of interpretation, cannot change the language of the statute.”

The Bench quoted the judgments of various courts in the United States. “In the USA the expression ‘palimony’ was coined, which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. Although there is no statutory basis for grant of palimony in the USA, the courts there which have granted it have granted it on a contractual basis.”

However, “in the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.PC.”D. Velusamy was aggrieved over a Madras High Court judgment upholding a Coimbatore trial court order, awarding maintenance of Rs. 500 to respondent D. Patchaiammal, declaring her his wife, though his first marriage with Lakshmi was not dissolved.The Bench set aside the impugned judgment of the High Court and the Family Court Judge, Coimbatore, and remanded the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of its observations.

http://www.hindu.com/2010/10/22/stories/2010102257190100.htm

 

READ THE SC JUDGEMENT :SC JUDGEMENT ON LIVE IN RIGHTS