Marriage is tragically not construed as companionship by the Indian state and society

“A wife should be an administrator in purpose, a slave in duty, Lakshmi in appearance, Earth in patience, Mother in love, Prostitute in bed”, wrote the Kerala judge while quoting a Sanskrit shloka to interpret the duties of a woman in a matrimonial relationship. (2018)

Thus, as per the court, a wife should be capable of adopting multiple roles. She must be perfect in work and appearance, should be caring and loving, and yet must work as a slave. The role of a wife is painted with high expectations, whereas no such roles are prescribed for husbands by the court. As per this notion, a woman can attain salvation only if she obeys her husband because, for her, her husband is a lord and a master beyond which she cannot have a separate existence. The traditional conservative notions about the ‘good woman’ who is obedient, compliant, docile, and does not question the norms are still prevalent within and outside the courtrooms and prevent many women from seeking justice using the legal system.  In fact, the conventional stereotype of an ‘ideal uncomplaining wife’ is reinforced by the judicial system that reiterates that a devoted and loyal wife will suffer torture silently. The paternalistic attitude that operates within and outside the courtrooms hinders many women from negotiating for their rights or obtaining justice. In fact, marriage is construed as a sacred relationship and not a tie that is based on companionship. As per this approach, it is dharma or the duty of the wife to look after her family subserviently without question. Marriage is considered to be a pious ‘ Dharmic ’ institution that is ‘made in heaven but broken on earth’. Much emphasis is laid on the performance of ceremonies such as the Saptapadi as per the rituals to accentuate the sacramental nature of the relationship that involves a union of souls that extends not only to one but to seven lives. 

Since the colonial era, the courts have been relying on ancient Hindu texts as coded in Vedas and Smritis. Many of these texts have been interpreted as putting the wife on a lower level, considering a woman to be a dasi or a slave. The intersection of caste and gender hierarchies is reproduced to arrive at the interpretation of ancient religious literature while construing rights and wrongs within marriage, rather than the constitutional values or legal norms. For instance, the Bombay High Court adduced that as per Shastras , in an anuloma marriage, marriage between a man from a higher caste to a lower-caste woman is valid, and children born out of such a tie are legitimate. However, the children born out of a relationship between Shudra men and a Brahmin mistress or a pratiloma marriage, which is declared invalid under the Hindu law, are not dasiputra and therefore cannot claim inheritance in their father’s property. While using the Brahmanical texts, gender and caste parameters are utilized to deprive a Brahmin woman and her children of their rights and penalize her for marrying a lower-caste man. This trend of interpreting rights in marriage narrowly continued in independent India. Contrary to the constitutional values of equality, justice, and liberty, such orthodox ideas and stereotypes are being embedded in personal laws morally, religiously, and socially and are evident in the spate of rulings and verdicts pronounced by the courts. 

Excerpt from my Book Women and Domestic Violence Law in India: A Quest for Justice, (2019) Routledge

 

Family courts uphold family ideologies, not gender justice

During the 1980s, the demands were made by the women's movement 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 procedure, 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 for providing 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 to avoid cumbersome litigation and replace it with samjhauta, or ‘brokering compromises’, 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 where 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 cannot negotiate.

Another choice offered is ‘settlement’, where a victim is left with no other alternative but to fend for herself and her children instead 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 offering 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.

For more details, see my book Women and Domestic Violence Law in India: A Quest for Justice, 2019, Routledge

p 59-60