Women As Respondents Under The Domestic Violence Act: Critiquing The SC Decision In Harsora V. Harsora

Last week, in Hiral Harsora v. Kusum Harsora, the Supreme Court held that Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), is unconstitutional to the extent that it defines “respondents” under the Act to only include “adult males.” The impugned section had permitted aggrieved persons under the Act to file a case only against adult male relatives with whom the aggrieved person was in a domestic relationship, and against the relatives (male and female) of one’s husband or domestic partner. The Supreme Court held this limited definition of ‘respondent’ to be unconstitutional. In effect, it expanded the definition such that an aggrieved woman can now file cases against other female relatives as well. So, for example, a mother can now file against a daughter and vice versa, a mother in law can file against a daughter in law, and a woman can file against her brother’s wife.

The Court’s central rationale for its decision was that the purpose of the DV Act is to protect women from ANY KIND of domestic violence; that, limiting potential respondents under the Act to only “adult males” defeats the purposes of the Act since it does not provide relief to women who are subjected to domestic violence by female relatives. Thus, the classification in Section 2 (q) between “adult male” relatives and others (non-adult, non-male) does not bear a rational nexus to the object of the Act. As such, the classification violates Article 14.

In holding that the classification is “not in sync” with the object of the law, the Court did not discuss, even to discard, any rationale for limiting respondents under the Act to “adult males.” In this post, I argue that there are in fact strong reasons for why women should be exempt from the definition, at least as against their marital relatives.  This exemption is based on power differentials within the family – power differentials that structure the occurrence, the subjective experience, as well as the adjudicatory evaluation of domestic violence.

Violence is not a “neutral” “objective” term. It implies an evaluation of a person’s behaviour. An act that is considered non-problematic, routine, and normal in one era/polity/geography/community, can over time and through change in discourse, become de-normalized and classified as violence. Domestic violence itself is a classic example. While the DV Act, which was enacted in 2005, defines wife-beating as domestic violence, the National Family and Health Survey (III), conducted around the same time, found that more than half the men and women surveyed believe that a husband is justified in beating the wife if she goes out without informing the husband, neglects the house or children, argues with the husband, refuses to have sex with him, does not cook food properly, is suspected of being unfaithful, or shows disrespect for her in-laws. The small point here is that social norms dictate what is considered violence in a society at a given point in time. Such social norms regarding what is appropriate behaviour and what is violence allocate power between different members of the family. Legislations like the DV Act do not reflect the social consensus – rather they seek to change it by naming routinized, normalized, and socially accepted practices as violence, and by providing recourse and remedy against such actions.  Legislations like the DV Act seek to disrupt the status quo, by allocating legal power to the socially dis-empowered, so as to equalize the balance of power.

When there is such a dissonance between social and legal norms, a judge’s evaluation of whether a given act amounts to violence or not depends on her own social outlook on appropriate behaviour. If she views familial relations through the lens of gender regressive stereotypical notions of family values, such a person is likely to condone acts that another, more progressive, gender justice oriented judge, might condemn as domestic violence.

Another case, also decided this week, exemplifies this point.  In Narendra v. K. Meena, the Supreme Court held that if a wife were to ask her husband to live separately with her, instead of living in a joint family with her in laws, this would amount to “cruelty” for the purposes of the Hindu Marriage Act, and would be a ground for divorce. The Court’s determination that such action is “cruelty” (another evaluative term, much like violence) was based on the reasoning that in India, unlike Western societies “[i]t is not a common practice or DESIRABLE culture” for a Hindu son to live separately from his parents. According to the Court,

“In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.”

Therefore, according to the Court, a wife who wants the husband to live separately from his parents without justifiable reasons (what reasons are “justifiable” the Court does not explain), is engaging in “cruelty” against the husband, and can be divorced by him.

This case illustrates two points – one, that judicial evaluation of words like “cruelty” or “violence” takes place against the backdrop of social norms regarding appropriate behaviour. Second, in a patriarchal society, gendered social norms place differential behavioural burdens upon men and women. In the specific context of familial relationships, social norms dictate the specific roles and expected behaviour of the various members of the family in ways that disadvantage women as compared to men. And amongst women themselves, daughters-in-law are generally the most dis-empowered in comparison to other members of her marital family. This is why so much of the women’s movement in India has focused on protections for the daughter in law against violence by her marital family. Here, I am using the phrase “daughter-in-law” to mean a woman in relation to all her martial relatives, be it her parents in law or her husband’s siblings or other relatives.

Section 2 (q) of the DV Act has to be understood in this background. The definition of the term “respondent” was EXPRESSLY limited to adult males (except when an aggrieved woman was filing against the husband’s/partner’s relatives). Not only does the Section limit the application of the definition, Paragraph 4 (i) the Statement of Objects and Reasons of the Act clearly states that the Act does not apply against female relatives (except the husband’s/partner’s relatives). Why is this so? The Statement of Objects and reasons does not clarify the point. However, based on the reasoning above, I would argue that the exemption takes into account the unequal burdens and expectations placed upon daughters-in-law within a typical Indian family. These norms dictate not only her expected and acceptable behaviour, but also determine what behaviour qualifies as  deviant and requiring of censure or punishment. Like the Hindu wife who is “cruel” when she asks her husband to move out of his natal home, a daughter-in-law can be considered “violent” if she refuses to abide by prescribed social norms of “desirable” behaviour or practice including for example, by not cooking for her in laws, disobeying them, or asking that her husband reside separately. Clearly, in deviating from such norms, she would be doing violence to the extant familial structure. The question is whether the behaviour amounts to violence under the Act. The example of cruelty under the Hindu Marriage Act unfortunately does not portend well for definitions of violence under the DV Act under a gender neutral framework. If the DV Act is made applicable AGAINST persons who are normatively dis-empowered within the family, the law risks being used for reinforcing power structures as opposed to breaking them down. I would argue that protecting daughters in law from such counter-interpretations is the primary reason for limiting the term “respondent” to “adult males.”

Now of course, the limits in Section 2 (q) exclude not just daughters in law, but other female relatives as well such as mothers filing against daughters and vice versa. In this, the law clearly excludes too much. The Supreme Court’s judgment provides strong justifications for why the exclusion can serve to defeat the objects of the law. My argument is not that the law is fine as it is, but that if change is required in Section 2 (q), such change should not extend toALL women.

Another concern that can be raised to the argument above is that this is essentially the “misuse” argument – don’t make the law because the law is likely to be misused, a la Section 498A, IPC. There is a subtle distinction between the kind of “misuse” that is talked about in the context of Section 498A, and the type of problem I am discussing. The 498A argument is about the filing of false cases to intimidate and harass the members of the husband’s family. (Whether or not Section 498A is actually “misused” is beyond the scope of this write-up). The issue that I am pointing to, is not one of misuse, but of what can be called “counterpretation” – an interpretation counter to the purposes of the law. The concern is that over time, through an accumulation of precedents, the law will come to re-inscribe societal roles and expectations within the family, rather than empowering women to challenge them.

Finally, one could argue that holding that a daughter-in-law cannot commit offences against her marital family is itself a form of stereotyping and essentializing. The concern here is that one is assuming a given power paradigm will exist for all families, and will assume that women are always weak and dis-empowered within their marital families. This does not account for changing social circumstances or individual instances where women might wield significant authority within the marital family and can subject her in-laws to abuse.

This argument gets to the heart of what has been termed the “dilemma of difference” – the dilemma between asking that all persons be treated the same (but knowing that since people are differently situated, those who are marginalized are likely to be disadvantaged by being treated as if they are not), and asking that differences in circumstances be recognized and treatment be determined accordingly (but running the risk of essentializing or stigmatizing the already marginalized group). It is true that a law that recognizes the especially vulnerable place of a daughter in law within the family may be caught on the horns of this dilemma. The only way out is to determine which amongst the two options is more likely to protect the vulnerable group. In this case, I would argue that accounting for the difference is the more appropriate response in light of the familial power structures within which violence operates and is normalized.

The appropriate response to the concern set out above might not be judicial – the legislature is possibly better suited to respond to the concern and craft an exception for daughters-in-law. Another option might be that daughters-in-law are included as respondents but only when their husbands are also made respondents. Again, this is not necessarily a route open to the judiciary – but is one that the legislature should definitely think about.

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