Family courts uphold family ideologies, not gender justice

Demands were made to establish family courts, and the Family Court Act was enacted in 1984. The law provides for specialized forums to deal with ‘matrimonial conflicts’ and not domestic violence. These are designed to adjudicate matters such as divorce, custody suits, maintenance, restitution of conjugal rights, and connected issues. The goal is to make the courts accessible and less intimidating for women through dispensing with lawyers, legalistic jargon, strict rules of procedures, and standards of evidence.

These courts depicted mediation as an alternative to the patriarchy-inspired adversary system. This is preferred by many because of its reputation to provide for a better hearing. Yet this system could not aid in reducing violence or enabling justice for women. Studies have shown that the family courts are not free from difficulties like backlogs, the exploitative commercial approach of lawyers, long drawn-out battles, multiple court proceedings, and the insensitive approach of officials.

Family courts were created with a view to avoid cumbersome litigation and replace it with samjhauta, or ‘brokering compromises’, in order to achieve efficiency and to shed the burden of the law. These courts mandatorily offer coercive persuasions to forcefully push women back to the violent families, to ‘adjust’, to ‘compromise’ to ‘preserve marriage’, even if it endangers their life and limb. An idea that is constantly being pushed is that the family is equipped to protect women while underplaying violence in it. Perhaps it is easier and more economical to compel women rather than question a man’s violent behavior. What is erroneously strengthened is the belief that women prefer to stay within abusive households, and therefore through ‘forced compromises’ they are compelled to accept the violent situation without any guarantee of their safety or security. No options are offered outside the domain of the ‘sacrosanct’ family. The rhetoric of ‘counselling’, ‘mediation’ or ‘settlement’ reiterates the regressive family ideology rather than protecting women from violence or providing psycho-social support to victims. The focus on settling ‘family disputes’ could not deal with the serious violence women face. Family courts negate women’s experience of violence rather than providing justice. Theoretically, an adversary system is replaced to resolve matters expeditiously and harmoniously, but in reality, the criminal justice system is twisted to adjust to the tenor of the patriarchy.

The alternative dispute resolution system diluted the seriousness of domestic violence in various ways. The language itself deliberately lessens the gravity of an offense committed within the chardiwari of the household. The term ‘dispute’ entails that two parties are equal, as compared to the term ‘violence’ which implies an abuse of power. The concept of parity among parties on unequal footing is introduced silently by the slyness of the patriarchal forces. No attempts have been made to question the inequality in the relationship. This misconceived approach overlooks the fact that conciliation as a technique poses grave problems, as it overlooks the concept of power within the relation. It expands the state’s control over individual behavior within families, and more specifically, it is at times being used to cement the norms of a ‘good wife’, ‘good mother’ or a ‘bad woman’. Further, denial of anger and the command to forget the past and live in the present generate dissatisfaction and give rise to a feeling of injustice. The law has reinforced patriarchal oppression while discriminating against women.

Mediation avoids questions relating to power, property, and violence within a relationship. The use of coercion in a situation when two parties are not on par creates problems rather than resolving issues. This process of ‘coercive harmony’ as explained by Laura Nader destroys rights by limiting discussion of the past. It prohibits anger, curtails freedom, eliminates choices, and removes protection of the law. It ignores a ‘victim’ status and compels a woman to compromise her health, life, or limb. Mediation within marriage does not address the structure of power located within the relationship and ignores the fact that parties in conflict in no way operate within the universe of ‘balanced bargaining equity’. It does not satisfy the survivor’s need for justice. Rather, it normalizes and trivializes the violence in everyday lives and compels survivors to curtail their emotions and hide the resentments that arise when they face abuse. During the process of mediation, a woman is vulnerable to threats and harassment and is under extreme stress and pressure, yet the reconciliation procedure does not consider these facts. Mediation overlooks legal entitlements and ends up denying justice to women who have less bargaining power and perhaps lack the capacity to negotiate.

Another choice offered is ‘settlement’, where a victim is left with no other alternative but to fend for herself and her children in lieu of a meager amount of money, if any, offered by the violent husband, or she may stay at her maika or remarry. Therefore, these so-called ‘women-friendly’ adjudication spaces failed to address the concerns of the victims of violence. In other words, these courts are ‘family-centric’ rather than ‘victim- or survivor-centric’.

This approach rejects the notion of making survivors economically self-sufficient or offers options to lend socio-economic support to victims. The patriarchal imagination failed to provide distributive justice or material relief and support to the abused wives through a single-window mechanism despite the knowledge that a comprehensive rehabilitative package is essential to remedy the situation of violence. The bold notion of challenging male dominance while improving the status of women or providing innovative solutions aiding survivors has not been imagined as an alternative by the state or society.

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

p 59-60

 Hail Patriarchy! Of Supreme Judges And Elite Law

07 November 2015

Since the Supreme Court of India pronounced its verdict in the matter of Supreme Court Advocate on Record Association versus Union of India also commonly known as NJAC judgement where the court consisting of five judges bench by the majority declared the National Judicial Appointment Commission to be formulated under the 99th Constitutional amendment as unconstitutional, a debate has been initiated. Opinions are expressed in favor and against it, and a fierce discussion has been initiated regarding the manner in which transparency and accountability may be maintained while appointing judges. However, the Supreme Court of India on November 3, 2015, moved ahead and conducted a hearing to work on suggestions to strengthen the Collegium system. By coincidence or by choice, I somehow got the chance to be present in the courtroom where these proceedings were conducted. The room was packed with advocates, senior advocates, elite advocates, the Attorney General, the Solicitor General, and the members of Supreme Court Bar Associations besides a few law interns and reporters. Every inch of the small courtroom is occupied where lawyers with their keen ears and watchful eyes were waiting to know how the system of appointing judges will be made transparent and how accountability will be ensured to provide a fair chance to all eligible to be appointed as the keepers of justice. Rubbing shoulders with most of the male advocates and a few female lawyers in the tightly packed room, I as a woman advocate and a feminist, was eager to find out not only about the transparency and the democracy in the selection of judges but the manner in which more women could find a place among judges and lawyers thus bringing in diverse views and opinions which reflect on different perspectives including that which is favorable to masses.

Though the literature exhibits different views about the issue regarding the presence of women judges in the courtrooms, yet I assumed that the mere presence of women in the Supreme Court or the High Courts may add diverse voice within the system. As Carol Gilligan in her famous work `In A Different Voice’ explained that women judge reason in a different manner from traditional male thinking and analysis. Though this tendency of constructing adjudicators into dichotomous non-intersecting categories has been criticized by several scholars based on the fact that not all women experience similar situations or think likewise, yet, it is through construing binaries an effort may be made to deal with the issues like discrimination, devaluation, and backlash. Also, though it may be said that the category `women’, in itself is not homogenous and has layers to it, and also sex as a biological category has to be differentiated from gender as a social construct, yet, bringing the gender lens into judging is significant besides creating a gender equal judiciary.

However, the discussion on Collegium for Appointment of Judges started once five male judges arrived in the courtroom and take on the seats earmarked for them on a high pedestal. No attempt was made to ensure the participation of female judges while discussing such a significant issue. The lawyers from both parties sat directly in front of them. Further, the Attorney Generals, the senior lawyers, and the advocate arguing the matter were all males. Though there were a few female advocates, yet either they choose to remain silent or those who even tried to raise their voices were not given the opportunity to speak. `Queen’s law’ in fact failed to give fair opportunity to women. The cultural norms of masculinity prevail shattering the myth of gender equality or progress and legal apartheid evidently was clearly visible. The proceedings went on to discuss `Apples from Uttaranchal and Oranges from Nagpur’ i.e. difference and manner of induction of a judge from a high court in a smaller town to a higher pedestal in comparison to induction of a judge from a metropolitan city to a apex court. However, the inclusion of more females among judges was a point that was not raised probably because the discussion was done by men, of men, for men, and among men. Also, may be because the discussion was focused on sharing power, and making decisions about the important aspects and relates to supremacy, authority, and control of the judiciary, female exclusion therefore becomes inevitable. The trend, as always, is to fiercely up keep the male prerogative. And when several of the female lawyers got the opportunity to raise this issue it was trivialized, marginalized, normalized, and refuted while drawing the focus on the ratio of male and female advocates on bar[1]. Tokenism and backlash operate to exclude those women who dare to raise their voice against male domination and highlights the manner in which gender bias is ingrained in the judiciary.

Even otherwise, women’s voice in the legal system of the biggest democracy is almost miniscule probably because shattering the glass ceiling is not an easy job. Additionally, the old boy network has a stronghold which prevents women to enter into the domain of supreme law. Nepotism, corruption, irregularities and other biases operate to prevent transparency[2]. Out of 28 judges in the Supreme Court of India, currently, there is only one woman judge who represents half of the Indian population[3]. Also, if one sees historically, since independence, only six women got the opportunity to be appointed to the Supreme Court as judges in India out of a total of 229. Further in High Courts, too situation is not good and there are 62 female judges in comparison to 611 male judges all over the country. In several states, women judges found no place in the High Courts. The judiciary, on a whole, does not reflect the entire community it is meant to serve. Sexism and misogyny within the system resist women's entry or sustenance within the legal system. The reservation system guaranteed under Article 243 of the Indian Constitution as applicable to introduce 33% women in Panchayat, Municipalities and other state institutions is not made applicable to the Indian Judicial System – including the Supreme Court of India or for that matter the High Courts or the lower courts. Alas! The judiciary, the courts, the protector of fundamental rights, and an upholder of the tenets of constitutional principles like equality, democracy, justice and dignity could not apply the provision of women’s reservation on itself.

In no way at any point of time while writing this I am saying that because women's representation is less in the judiciary or that a few women could sustain themselves in the legal profession or that they are paid less than their male counterparts, therefore, NJAC may be preferred over the Collegium system. What is meant here is that prejudices, biases, and stereotypes are deeply entrenched in the system that is meant to ensure justice for men and women. Also, the judiciary does not reflect the values it is expected to uphold and the situation is no different in many of the other countries. East or West, for a woman as a seeker of righteousness, to access justice is equally as difficult as for another woman to enter into the echelons of law as a provider of justice. Patriarchy prevails from top to bottom to crush and defeat women’s voices as providers or seekers of justice as well as a survivor of crime.

However, there are those women lawyers, judges, scholars, and common women who are not willing to give up and continue to fight as warriors against patriarchy within the law. Though moving from a `minority to parity’ within the domain of law is an uphill task that requires organized efforts towards mobilization yet these women are politically striving to resist patriarchal oppression by raising feminist consciousness and interpreting law from varied perspectives. 

Or as WH Auden, an Anglo-American poet in his famous poem Law Like Love illustrates that law though is stern, strict, lofty, hegemonic, orthodox, and disciplinary yet like love it is inexplicable, dynamic, diffused, and incommensurable and may be interpreted differently:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
Tomorrow, yesterday, today.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.

The author is a practicing Advocate, Activist and Researcher working on gender, governance, and law issues. 

[1] Nair Harish V (2015) Supreme Court Keen to Appoint Women Judges Now, India Today, November 5 http://indiatoday.intoday.in/story/supreme-court-keen-to-get-women-judges-now/1/516459.html
[2] Live law news Network (2015) SC Notice to successful candidates of Delhi Judicial Exam, Live Law dated November 6 http://www.livelaw.in/sc-notice-to-successful-candidates-of-delhi-judicial-exam-naming-of-ex-judge-for-revaluation-deferred/
[3] Details as Available on the Website Supreme Court of India http://supremecourtofindia.nic.in/judges/judges.htm