From a Pati-Parmeshawar or a Lord to a Partner: How the Conservative Patriarchal Family Ideology Operates and Is Challenged in the Courts

29/8/2022

The data from the NCRB shows that an increasingly large number of women are approaching the courts with complaints of domestic violence every year. In 2018, around 1,03,272 cases were filed, in 2019, again 1,25,298 cases and in 2020, around 1,11,549 cases were under section 498A IPC. These women are approaching the legal system as agents of change with the hope that they will no longer be abused. Complainants do not see their violent husbands as pati-parmeshwars, lords, or masters, but are expecting men to be their partners. The new generation of women views marriage as a companionship. They are simply demanding violence-free homes. This changing aspiration among young women is also reflected in some of the recent movies such as The `Darlings’, `Secret Superstar’, `Thappad’, and so on.

However, on the other side, neither the violent men, nor the male-dominated courts, nor the patriarchal society as the up keepers and the preservers of patriarchy are willing to come out of their traditional age-old patriarchal mindset. The rigid conservative attitude of the courts is evident from the recent remark made by a woman judge from the Delhi High Court who hailed Manusmriti and preached about family ideology rather than endorsing constitutional values. Also, from the analysis of the spate of judgments, it is observed that the courts promote `familyism and not feminism’. The patriarchal logic in such decisions paints complainants as `disgruntled women’, liars, `gold diggers’, and so on ignoring the fact that the law is clearly being made with the intent to protect the rights of the victims and survivors and that violence in marriage is not a `men versus women’ issue. The top-down approach of the courts failed to uphold the constitutional values or the aspirations of the new generation of women.

While examining these vast contradictions or the `clash of ideologies’ that operates on a daily basis in the courtrooms, this piece of work observes that in the 21st century, a vast difference exists between the way women on grounds are dealing with the realities of domestic abuse, the way the domestic violence laws exist on paper, and the top-down approach taken by the courts while implementing the laws.  This work, while referring to the patriarchal attitude highlights that an `insecurity’ prevails in the male-controlled society that is fearful of a new generation of women who are demanding violence-free homes, see marriage as a partnership and expect men not to be the companions and not the chauvinist lords. It suggests that the courts as the custodian of the rule of law need to uphold constitutional values and need to restrain from imposing the conservative ideology, to accept the changing socio-economic realities to shatter the shackles of conservatism. However, this is not happening. Yet, despite of facing huge challenges[, women, today, are showing the path of transformation by refuting patriarchy and countering the age-old traditions.

https://countercurrents.org/2022/08/from-a-pati-parmeshawar-or-a-lord-to-a-partner/

 

How Malimath Committee Denied Women their Rights?

Section 498A IPC is inserted in the Indian Penal Code in 1983 and provides to protect women from cruelty in their matrimonial homes. The Malimath Committee Report (2003), twenty years after the enactment of Section 498A noted,

“In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to the fire if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family…This section, therefore, helps neither the wife nor the husband. The offence is non-bailable and non-compoundable making an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is, therefore, necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together” (p. 191).

 

The Committee while making such observations expressed its apprehensions in the ability of the criminal justice system to provide justice. However, the committee has failed to recognize that

First, cruelty under 498A is listed as a cognizable, non-bailable and non-compoundable crime and has to be dealt with accordingly. The criminal justice system while dealing with each case, is expected to take abundant precautions in ascertaining the guilt of the accused person, therefore to suggest that this offence be diluted implies distrusting the judiciary and labelling the trial courts as inefficient to effectively adjudicate the culpability of the parties.

Second, the context of the relationship between the perpetrator and the victim does not make domestic violence a lesser crime. Rather the severity of the crime is adverse in situations where the batterer is in the capacity to exert financial, emotional and social control over the victim because of the relationship and the victim is financially dependent on the perpetrator.

Third, salvaging a violent marriage is not a viable option when a man is abusive as he destroys the family through his violent actions. Families cannot be built on the edifice of bruised and battered bodies or scarred minds.

Fourth, the bitterness in a relationship already starts once a wife is being abused, therefore suggestions should have focused on altering the men’s violent behaviour.

Fifth, the policemen are not overzealous to arrest the accused. Rather studies have shown that women undergo hassles in filing the FIR. Also, at every step of the trial, mediation is enforced vehemently to compel women to reconcile.

Sixth, making the offence compoundable will not serve the purpose as neither this will deter the perpetrator nor it will help to salvage the relationship. Experiences show that violence escalates in situations when women are pushed back in abusive situations without the guarantee of safety.

Last, the committee has failed to raise concerns relating to provisions of shelter homes, medical, or legal aid or other facilities for the battered women as its only apprehension was to save the family. This indicates its biased approach.

Despite its pitfalls, this erroneous approach sets precedents, is being repeated multiple times, and has major implications for diluting the procedures and provisions relating to criminal law. Over the years, the state has followed the recommendations blindly without testing the validity of claims or referring to the existing research to suggest changes. 

For more details please see my book

Domestic Violence Law in India: Myth and Misogyny (2021) Routledge

 Excerpts from my book Women and Domestic Violence Law in India: A Quest for Justice, 2019, Routledge

p. 54

Anti-arrack movements and alcohol ban protests have been held at various places where the agitating wives continuously have drawn attention to links between wife beating and their husbands’ drinking habits and that drunk men as husbands are vile and deviant who destroy the ‘sanctity of the family’. However, the discourse on domestic violence could not demonstrate the fact that these men are ‘incompetent’ to rule within their homes. Similarly, greedy men and their families who were burning brides or abandoning women to remarry to recollect dowry from other women could not be held accountable for their rapacious criminal acts. Rather, the authority of violent husbands could neither be questioned nor they were held accountable; instead, gruesome reports of wife battering have been suppressed under the garb of ‘protection’ and ‘privacy’. Domestic violence is not visualized as a ‘law and order’ issue by the state. Rather, the state promoted dowry and exploitation of girls in the guise of several schemes, such as Sumangli in Tamil Nadu, Arundhati in Assam, Laadli Scheme in Goa, and Rupashree in West Bengal. Marriage is an institution that reinforces patriarchy and subordination with regard to property, sexual oppression, division of labor, and reproduction – this construction has not been challenged. Ratna Kapur has rightly stated that the movement has pushed for equal rights without “disrupting the dominant, culture, familial and sexual norms that define Indian womanhood:.

In the cases of Tarvinder Kaur, Sudha Goel, Shashibala, Kanchan Chopra, and many others, the secondary status of women in marriage came to light. Despite repeated complaints of torture, these women were compelled to ‘adjust’ within the marriage until finally they were murdered. Yet, no efforts have been made to tackle this tremendous pressure on women to stay in violent relationships. The discourse on violence has not questioned the vulnerable position of a bride in her matrimonial household. Perhaps marriage is imagined as the only way to control women’s sexuality. Domestic violence is seen as an effect of the devaluation of the status of women, yet not much is done to eliminate the power imbalance with the hierarchical family arrangements.

Demands have been made to strengthen laws, but no interventions have been sought to create shelter homes, short-stay homes, or creches, or to provide medical facilities or legal aid to support victims of violence. Neither recommendations could be made to create conditions to facilitate women’s economic independence, nor material or emotional support could be imagined by the state or society. The independent existence of single women as citizens could not be conceptualized, while the idea of inequality within marriage has been upheld as divine above the rule of law. This nourished the right-wing ideology that co-opted the women’s movement agenda.