Why the Law Often Fails the Women it Aims to Protect

Anonymous..

When I began my litigation journey it was a few months after my LLM from Azim Premji University. With my learnings from the course, I was naive to believe that I could bring in an interdisciplinary approach to litigation and put the best use of my Master’s Degree. But our Courts are most often doctrinal while approaching matters that affect the lives of people that seek justice before it. For instance, in the first matter that was assigned to me by the High Court Legal Services Committee was of a 48-year-old woman who was subjected to various forms of violence for 25 long years, dependent on her father-in-law (till his death) to maintain herself and her two children because her husband thought it was more appropriate to spend his income on alcohol than to support his family.

She had approached the concerned Family Court for maintenance under Section 125 of the Criminal Procedure Code. However, the same was denied to her because the Hon’ble Court was of the view that the husband had not neglected or abandoned her and that she had voluntarily left the matrimonial home without any dispute with her husband. What the Court did not consider was the fact that, she had to leave the matrimonial home during COVID to care for her father and sister who had contracted the virus and her father had a heart attack around the same time. While she was attending to the needs of her family, the husband thought it was the best time to go and create a scene in an inebriated state, by hurling abuses middle of the night and pelting stones at her house. Only because there was nobody to cook meals for him and “take care of his house”. The Court didn’t consider this as neglect and abandonment. Neither did it consider her submission that she was subjected to violence because there were no prior complaints against her husband.

Soon after I joined Dhwani, I realized that the law demands women to measure up to a higher standard and be the “perfect victims” in order to deserve protection. A daughter filing for protection and maintenance against her father under the Domestic Violence Act is first denied admission in the Court of Law because “Domestic Violence Act applies only to husband and wife” and even if it is admitted she is branded by the Learned Magistrate, as a greedy ungrateful daughter harassing her poor aged father, even when there is material on record to show the extent of the father’s abuse on the daughter. Even when the father splurges on his unemployed son without any conditions or restrictions, but abuses his daughter for asking for the necessities, she is used as a pawn to arm twist the mother into returning to the matrimonial home. The same mother who mustered the courage to walk away from her abusive husband after being subjected to violence for years. To get this case admitted, I was asked to bring precedents to show that a daughter can seek maintenance from her father under the Domestic Violence Act, even when I argued that the statute is clear on this aspect.

In another matter before the High Court while representing the Prosecutrix in a POCSO matter, I argued that the Court ought to consider the large age difference between the Prosecutrix and the accused and the fact that he kidnapped her and threatened to kill her parents if she did not comply with his demands. The response I received from the Bench to this was “Avalu yenu kadle puri thintidhla” which translates to “was she eating puffed rice” instead of crying for help.

Many of our clients at Dhwani are met with doubt and suspicion when they approach the Court for protection and justice. Yet they show up for each hearing, maybe with hope that their truth will be seen and acknowledged. They seek justice even when the law fails to see the reality of their lives. When these women can place hope in a system that frequently questions their intentions, the least one can do as their advocate is to put up a good fight for the law to consider these women’s realities before passing decisions that affect their lives.