Introduction

With the rise of COVID-19 and the consequent advent of a global pandemic, lockdowns throughout the world deem a necessary course of action to curb the spread of the disease.

However, prevention through the institution of lockdowns prompted the emergence of certain unintended repercussions, such as an increase in physical and psychological abuse within households.[1] After the advent of COVID-19, a 21% increase has been observed in crimes against women within India.[2] Additionally, during the lockdown period, the reported cases of domestic violence rose from 3,287 to 3,993.

Report

[3] The keyword in the formation figure is ‘report’. It is pertinent to note that a vast number of domestic violence cases go unreported, thereby making this seemingly substantial problem even more monumental.[4] The reason for this underreporting is, inter alia, the apprehension of reprisal that many women face with.[5] The primary reprisal often comes in the form of a lack of adequate shelter.[6] The prevalent structure of patriarchy in India perpetuates the practice of housing deeds being typically in the name of the male members of the family.[7] This creates a lack of appropriate housing options for the victim, thereby begetting their silence and furthering their oppression.

Statutory Provisions

To combat this issue, The Protection of Women from Domestic Violence Act, 2005 (henceforth referred to as ‘The Act’), has laid down several safeguards to protect the victims of domestic violence. Section 17 provides the situations wherein every woman or aggrieved person in a domestic relationship has the right to reside in the “shared household” except by the due process of law.[8] The Section reads as follows:

“17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title, or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.” [9]

Section 19 of The Act further provides the rights of the aggrieved party with reference to the shared household.[10]The pertinent question that arises here is the meaning of a “shared household”.

This term is defined under Section 2(s) of The Protection of Women from Domestic Violence Act, which reads as follows:

“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”[11]

The wording of this section has incited much debate in the history of judicial decisions, which in turn has had drastic outcomes towards the rights of women with regards to residence and shelter. The various interpretations of this section can be highlighted in two landmark cases, elaborating upon which will further illuminate the correct interpretation of the section as well as the current rights of women regarding the same.

Judicial Developments

The first landmark case in the area is S.R. Batra v. Taruna Batra.[12] Under this case, the matrimonial home of the couple belonged to the wife’s mother-in-law. The husband filed a petition for divorce and moved out of the matrimonial home.

Domestic Violence

[13] Consequently, the wife was also deserted by her mother-in-law and locked out of the matrimonial house. As a result, the wife filed a case wherein she prayed for a mandatory injunction against such dispossession so that she could enter her matrimonial house. Her prayer was granted to her by the High Court, which led the aggrieved party to file an appeal against the judgment.

The Supreme Court, after considering the case, arrived at the conclusion that since the mother-in-law, and not the husband, is the owner of the property, the wife not entitle to claim the right of residence against the property in question.[14] The Court further rejected the contention of the matrimonial house falling under the definition of a “shared household” based on the argument that such a conclusion would “lead to chaos and would be absurd”.[15] This is because the wife then would be able to demand the right to reside in any of the houses that she and her husband temporarily stayed at, such as any of the husband’s relative’s houses.[16]

Therefore, this case held that the wife, under Section 17 of The Act, is entitled to demand the right to reside only in shared households and that “shared households would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member”.[17] The aforementioned case effectively removed the in-laws’ house from within the ambit of the definition of a shared household, thereby creating a loophole that could be misused against the victims of domestic violence.

Aforementioned Judgement

However, a recent judgment passed by a three-judge bench, headed by Justice Ashok Bhushan, overruled the aforementioned judgment, thereby giving wives the right to reside in their matrimonial homes even if the same are the self-acquired properties of her parents-in-law.[18] This case was adjudicated upon by keeping in mind the intent of the legislature with regards to the enactment of the Act and the position of women in India. Under the judgment provided for this case, extensive deliberation was done over the words “where the person aggrieved lives or at any stage has lived” mentioned in Section 17 of The Act. It was held that the apprehension put forth in the Taruna case regarding chaos ensuing was not a true apprehension.

[19] The intent of the legislature behind the provisions in question held to be providing instant relief to the victims of domestic violence in the context of shared households. It held that the words “has lived” were included in The Act to avoid loopholes and misuse, wherein one party could contend that on the date of the institution of the suit of filing of the application, the aggrieved party was absent or not in possession of the house.

What do the act does ?

[20] This will operate unfairly against the victim if the absence a result of forcefully exclude by the abusers. It never meant to be the intention of the legislature. To declare that each and every residence where the husband and wife temporarily resided as shared households.[21] In order to adequately determine which residences to share households, a sense of permanency attach to them. Done by holding that “mere fleeting or casual living at different places do not make share household”. [22]

Hence, the aforementioned judgment, by overruling the judgment laid down in the Taruna case. Took a step in the direction of empowering women by strengthening rights provided to aggrieved parties under the Act.

Conclusion

Domestic Violence In India

While domestic violence in India is ostensibly a big problem. Based on statistics, if considered with the fact that a vast majority of the cases go unreported. Becomes a massively large issue. Amongst the many reasons for underreporting such as social stigma, inadequate police response, and so on. The primary hurdle that needs to face is the fear of reprisal, which includes a lack of adequate shelter.

While the Act has included within itself safeguards for the same. The wordings of the provisions beget controversy and leads to different interpretations. By the Courts that had a drastic effect on the rights of the aggrieved parties.

By overruling the Taruna case, the recent three-judge bench of the Supreme Court has entitled women. To live in their matrimonial homes even if it is not own by them or their husbands. And instead, is own by their parents-in-law. This 151-page judgment has taken a step in the direction of women empowerment by providing the aggrieved parties. With an immediate remedy with regards to shelter in cases of domestic violence. After all, “the progress of any society depends on its ability to protect and promote the rights of its women”. [23]

Reference

Domestic Violence In India

[1]Caroline Bradbury Jones & Louise Isham, The Pandemic Paradox: The Consequences of COVID-19 on Domestic Violence, 29 JCN 2047 (2020).

[2]Manob Das, Arijit Das &Ashis Mandal, Examining the impact of lockdown (due to COVID-19) on Domestic Violence (DV): An evidences from India, 54 Asian J. Psychiatr. 1 (2020).

[4]Roni A. Elias, Restorative Justice in Domestic Violence Cases, 9 Depaul J. Soc. Just.67 (2015).

[5]Paroma Ray, Leaving Home, Leaving Rights, 4 J. Indian L. & Soc’y 81 (2012).

[6]Protection of Women from Domestic Violence Act, No. 43 of 2005, India Code (2006), vol. 12.

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[10] S.R. Batra v. Taruna Batra, (2007) 3 S.C.C. 169 (India).

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