The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights

Gautam Bhatia

The court’s judgment is important not just for its progressive outcome, but also for its reasoning
The court’s judgment is important not just for its progressive outcome, but also for its reasoning(PTI)

In 2005, Parliament enacted the Protection of Women from Domestic Violence (DV) Act. The DV Act was a critically important law that recognised and codified a set of rights intended to protect women from domestic violence and domestic abuse. The Act recognised that domestic violence is triggered — and enabled — by the vast differences of power that exist within our family structures. Long-standing norms that operate to make the husband’s family home as the default matrimonial home, or create and sustain disparate earning capacities between the spouses, ensure that, in many cases, women lack the social and economic support structures that would enable them to effectively resist domestic violence, or to leave abusive relationships.

To mitigate this situation, the DV Act prescribed a set of remedies that women could avail of in situations where they were faced with domestic violence. One of these remedies is the right to residence, codified under Section 17 of the DV Act. The right to residence is based on the recognition that in a significant number of relationships, the marital household will either be under the legal control of the husband, or of his parents, and the woman will not always be in a position to return to her own family home. In such a situation, the threat — or the potential social shame — of homelessness creates a situation of “no exit” from the abusive relationship. To prevent this, the DV Act specifically provides that “every woman in a domestic relationship shall have the right to reside in the shared household”, and that she cannot be excluded or evicted from it, except through legal process.read more

Soon after the passage of the DV Act, in 2007, the Supreme Court (SC) provided a narrow and restrictive meaning to the right of residence. The court held it would apply only where the “shared household” either legally belonged to the husband, or where it was joint family property. In cases where — for example — the married couple was living with the husband’s parents, in a house that legally belonged to the parents, there would be no right of residence. The judgment based its interpretation on a strained reading of the phrase “shared household” under the DV Act, and by raising the spectre of the “chaos” that would ensue if every place the married couple had ever stayed in could be treated as a “shared household”, where the wife could claim residence rights.

Needless to say, this interpretation defeated the very purpose of the DV Act, which was based upon a recognition of the structural vulnerabilities faced by women within the social institution of marriage. By drawing a line around the cases in which residence rights could be claimed, the court effectively deprived a large number of women, subjected to domestic violence, of the very remedy that had been designed for their protection.

However, after 13 long years, in 2020, the SC has now finally corrected its error. In Satish Chander Ahuja v Sneha Ahuja, the court acknowledged that its old reading was wrong, and the specific purpose of the DV Act — which was to protect the rights of women subjected to domestic violence, within the Indian social context — required a broad reading of “shared household” and residence rights. The SC, therefore, held that residence rights were not limited to situations where the shared household was joint family property, or belonged to the husband. As for the “chaos” that would seemingly ensue, the court pragmatically noted that only the last household in which the parties had lived together — and access to which was sought to be deprived — would count, a judgment that could be made on a case-to-case basis.

The court’s judgment is important not just for its progressive outcome, but also for its reasoning: The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights.

It is, therefore, an important step forward in making the DV Act an effective rights-legislation

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