Courts unwilling to grant women right to 'shared household'
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COMMENTS 
A recent Supreme Court judgment, which rules that the self-acquired property of a woman's in-laws does not constitute a 'shared household' and cannot be taken into consideration under the new Protection of Women from Domestic Violence Act, completely dilutes the legislation, say activists and lawyers
Activists and lawyers dealing with women's issues believe the recent Supreme Court judgment in the Batra vs Batra case, whereby the self-acquired property of the in-laws does not come under the purview of a 'shared household', has stirred up a hornet's nest.
The judgment falls under the ambit of the newly-enacted Protection of Women from Domestic Violence Act (PWDVA), which specifically grants permission to a battered wife to reside in her husband's house. However, with this judgment, the judiciary appears to be moving in the opposite direction.
In the Batra case, husband and wife were living together on the mother-in-law's premises. The husband, however, moved into rented accommodation before he filed for divorce. Kirti Singh, lawyer and president of AIDWA (All India Democratic Womens Association) Delhi, says: "Granting a woman right of residence has nothing to do with ownership of the property. The judiciary is scared that if a wife is given right of residence, then the property rights of everyone else will get jeopardised."
Section 17 of the new Act clearly empowers the court not only to allow a woman to reside in the same house but also for part of the house to be allotted for her personal use. The PWDVA has been specifically enacted to deal with the spiralling cases of domestic violence in the country. The recently concluded National Family Health Survey-3 (2005-06) found that 37% of Indian women face either physical or sexual abuse at the hands of their husbands.
Delhi High Court judge Gita Mittal revealed that over 302 cases have already been filed in the Delhi courts since the enactment of the PWDVA in October 2006. Large numbers of cases are also being filed in the state judiciaries.
The first case decided under this law, in a record period of 57 days, in New Delhi, saw complainant Neeraj Bala being granted custody of her child under Section 21. But she was refused permission to reside in her husband's house.
The court took the plea that since Bala had been living separately for one-and-a-half years she should continue to do so. The court generally directs the husband to pay the rent -- something that is seldom done for any sustained length of time.
Commenting on this judgment, Tajinder Luthra, ACP, Crimes Against Women, Delhi, said: "Granting custody of the child might provide her with emotional security but it also entails a financial burden. Therefore, this has little meaning if it is not coupled with financial maintenance."
Jaipur-based activist Kavita Srivastava, who has dealt with 40 cases under the new law in Jaipur, Bikaner and Jodhpur, faces a similar predicament. She points out that in a majority of cases women who have been dispossessed of their matrimonial home find it difficult to regain possession.
Srivastava explains: "Judges prefer to ask husbands to give rent towards maintenance of their wives, rather than right of residence. Fifteen cases that I have personally dealt with have been stayed in the appellate court."
Mridul Eapen of the Kerala State Planning Board admits that Kerala enjoys the ignominious distinction of having the highest number of women suicides from amongst all the states. "It is sad to hear 33% of survivors say that their attempts are linked to domestic violence."
Leena Prasad, a consultant lawyer with the NGO Action India, also believes that the new law has triggered a situation wherein problem marriages are driving husbands to "instantly transfer their properties back to their parents or some other relative. Ninety-nine per cent of properties in Delhi are self-acquired. The rights of those who own this property are not being jeopardised. Ownership of property can be established only through documents. Where do women generally possess such papers," she asks.
Gauri Chaudhury of Action India emphasises that the PWDVA is a "multiple option law" in which a woman does not need a lawyer in order to approach a magistrate. She can approach the latter directly or else seek the assistance of protection officers who have been appointed in every district of the country to deal specifically with cases of domestic violence.
Experiences in Delhi have, however, shown that these protection officers are seldom available when they are most needed. This, despite the state having set aside a sizeable amount of funds for them.
Leading lawyer Indira Jaising has repeatedly stressed that the government needs to create a supportive infrastructure in order to make the law effective, especially as it does not require the filing of an FIR but of a Domestic Incident Report (DIR) by protection officers. The idea is to exclude the police from the proceedings and also give the perpetrator of the violence an opportunity to correct himself. It becomes a penal offence only if the violence continues.