Why Kashmir’s Battered Women Want Orders From Reluctant Courts To Share Households With Their Abusers

ARSHIE QURESHI
 
22 Mar 2022 11 min read  Share

Many battered women in Kashmir appeal to courts to pass what is called a ‘residence order’, a right under the domestic violence law, which allows a woman to reside in her matrimonial home. They do this because the region has no shelter homes or safety nets, and women who return to their parents’ homes face social stigma. But courts hesitate to pass such orders because implementation involves government infrastructure, such as security, and sensitisation of the police, both in short supply.

LUIS GALVEZ/UNSPLASH

Srinagar & Pulwama:  “All it took him was one night of anger and resentment,” said K*, “to turn me homeless”, after two decades with her husband in what had to her seemed a happy marriage. One night in June 2020, he locked her out of the house she had built brick by brick, with her earnings as a high school teacher.


In her 60s today, K, had planned a “comfortable post retirement” for herself and her husband, who remained unemployed throughout their marriage. Yet, he resented her for going out to work.


The act of locking K out of her own home spiralled into an arduous court battle in Srinagar’s district court, as she pleaded for the right to reside in her matrimonial home, a provision in the Protection of Women From Domestic Violence Act (PWDVA) 2005, which allows a woman to continue to stay on, irrespective of whether or not she owns the home.


Instead—after a 13 month legal battle—the court directed her husband to finance accommodation with a monthly rent of not more than Rs 4,000. Till this day, the doors of the home she built remain shut for K. 


Like countless other women, K found herself revictimized, as she fought to retain her home and dignity. 


The court order added to the already existing power imbalance that existed between K and her spouse. The house had been built using all her savings, but the property documents were in her husband’s name, not her name.


Jammu & Kashmir (J&K) had a law against domestic violence. Passed in 2010, it was the same as the PWDVA. In 2019—when Article 370, the special constitutional provision that allowed the former state’s accession to India, was scrapped—the PWDVA 2005 was applied with retrospective effect. Since the two laws were technically separate, J&K data did not show in national statistics and were never made available. 


Both the J&K and national domestic violence acts also provide shelter homes to victim survivors. However, more than a decade after enactment in J&K, the Valley hasn’t a single designated shelter home under the law.


The PWDVA restrains the spouse, in-laws or natal family, from dispossessing a survivor of domestic violence of her matrimonial home and authorises courts to pass an order “directing the officer in charge of the nearest police station to give protection” to the victim survivor and ensure the law is followed. 


But once they are told to leave home by abusive spouses, going back to natal homes is not exactly an option for survivors. A return home prompts social opprobrium and a barrage of questions about why a married woman should be living with her parents. For those women who have lost their share in property from natal or parental homes, going back is even more unviable.

 

A key factor that courts often fail to consider when a woman is dispossessed of her marital home is the emotional labour women like K put into their homes. She described it as having “no price tag or acknowledgement”. 


“Putting in blood and sweat is not just a phrase,” said K. 


Yet, over the years, courts have been reluctant to pass what are called residence orders: the right of a woman facing abuse to live a shared household; a direction to the spouse to vacate the premises or restrain him or relatives from entering or “disposing off” the shared household or renouncing his rights without a magistrate’s permission; or directing him to arrange a similar alternative accommodation or pay rent for it.


The reluctance of courts, said experts, went against the spirit of law and indicates a clear denial of agency to survivors of domestic violence. The domestic violence law is the first legislation to provide statutory residence rights to women. When couples are divorced by mutual agreement, there is no legal guarantee for residence rights.


Ensuring the safety of women in shared households involves seeking the intervention of the local police. But a lack of sensitivity and knowledge of the law makes implementation a challenge, particularly for station house officers (SHOs), who the law designates ‘protection officers’. 


Protection officers, says the law, must preferably be women. They are not specifically appointed by such designation, which means they have regular jobs; being protection officers is an additional responsibility. Such officers are employees of the ICDS (Integrated Child Welfare Scheme) and may lack basic training in the law or the sensitivity they require to show their protectees. 


Burden Of Violence On Victim Survivors

In most cases of domestic violence, a common tactic of abusers is to oust the victims from their marital homes or to drive them to the point where they are compelled to move out of the home. They are almost never taken back.


R*, a doctor in her late 30s, was convinced by her abusive husband to go to her parental home for a few days, since he was travelling, and her in-laws had already been abusive to her in the past. 


In July 2018, she and her seven-year-old daughter went to her parents’ home when her husband flew to Dubai on business. Days passed, as she waited for him to contact her or answer her calls. He never did. 


She approached her in-laws, who refused to shelter her and her daughter. After exhausting all her options, she appealed for a residence order under the domestic violence act. 


“I had no clue what had gone wrong or where he was, till someone told me he had gotten married a second time abroad,” said R. 


While R was trying to convince the court of her legal right to residence, her husband, the perpetrator of violence, used the time to tell relatives and acquaintances that they had been divorced and did not live together any longer. 


“If by any chance, the court had passed an ex-parte order or interim order in my favour, the second marriage would possibly never have happened,” she said. “Or it may have happened any which way but the burden of domestic violence and subsequent shelterlessness would not have been amplified on me to carry for life.”  


The law prima facie guarantees female survivors of domestic violence a residence as either ex-parte, interim or absolute. 


An ex-parte order is granted with urgency by a court in favour of a “petitioner”, or the wife, without needing to hear the “respondent”—meaning, husband. An interim order is issued after hearing the respondent at any time during the suit. An absolute order is the final judgement in the case. 


These orders are supposed to make sure that abused women are not left without shelter at any point, irrespective of the title of the property. 


In practice, apart from submitting an affidavit, judges make women “prove” they are entitled to that residence, which can take years like in the case of R. 


“For me it has already been three tiring years, and the wait is uncertain,” she said.  


Landmark cases have strengthened the clear legal provisions to protect survivors of domestic violence, but implementation has not been as clear. 


In the case of Satish Chander Ahuja vs Sneha Ahuja, 2020, the wife, Sneha, filed a domestic violence petition in response to her husband filing for divorce. She made her in-laws party to the case.  


Sneha got an interim residence order. To counter this, her father-in-law filed for a mandatory and permanent injunction, which he obtained through the trial court. Sneha challenged this in the High Court, which set aside the ruling of the trial court. The Supreme Court too ruled in favour of Sneha, granting her right to the shared household, irrespective of her ownership, her husband’s ownership or ongoing divorce proceedings.


Section 17 of the domestic-violence law clearly indicates a survivor’s right to a shared household, “notwithstanding anything”, including divorce proceedings.


However, in Kashmir, when a protection officer was directed in 2020 by a court to guarantee Saima Gani, 36, safety in her matrimonial home, he reported to the court that her husband intended to divorce her, so she had no claim to stay in that household. 


“That a woman could claim a residence order even though divorce proceedings were ongoing was news to him,” said Gani’s lawyer, Subreen Malik. 


“Misuse” Or A Judgement Without Trial

There have been frequent accusations, including in Parliament, that (here and here) the domestic violence law is misused against men, but experts that Article 14 spoke to said in their experience false accusations were negligible.


In the Valley, the debate about misuse of the law gained resonance and validation when the Srinagar Small Causes court in 2019 asked a petitioner to pay a fine of Rs 10 lakh to her abusive husband. 


After she filed a domestic violence petition against her husband in 2019, the court restrained her husband from entering the home they had shared. But on the basis of the report submitted by the concerned station house officer, the appellate court concluded that her husband had not caused any “grave physical or mental violence” to his spouse and dismissed her petition for restraining her abusive husband from entering her home. 


The court advised them to resolve their issues “amicably”.


She challenged the order in the High Court, but her petition was dismissed. After multiple appeals and rejections, she faced a rejection from the Supreme Court as well. Subsequently, she was given legal advice by her counsel to withdraw the case, which she did.


Her domestic violence petition was termed by the court of small causes as an attempt to drag the process, misuse of the law and an attempt to deny her husband a home that they had shared in the past, even though her abusive husband had been living in a separate house for the last three years.


Holding the spouse’s exploration of legal remedies available to her a misuse of the law went against the spirit of the domestic violence legislation, said advocate Ayesha Zehgeer, who added that such a judgement would deter women from seeking legal redressal. 


“Women have long journeys, barriers and hesitations to cover before approaching the courts, and in court they present their cases in a hostile environment,” said Zehgeer. “Rather than making the process smoother for the victim survivors of domestic violence, this judgement encourages blanket judgements on misuse of law by women and deters them from reporting domestic violence.” 

 

The Horrors Of Renting Homes

Many women find relief living in rented accommodation, where they get respite from coming face-to-face with their abusers.  But this comes with its own set of challenges such as convincing society of their ‘decency’ and ‘chastity’. 


G*, 35, after being ousted by her husband, had no place to go and took shelter at the house of an acquaintance. After weeks of trying to reach a resolution with her abusive, estranged husband, he accused her of being involved in prostitution at the place where was living. 


 “From being a victim of domestic violence, I was thrown into a spot where I not only had to prove myself innocent but also plead with my husband to take her back along with the allegations he levelled against me,” said G.


After the local community brokered a deal, they live together now because she and her 8-year-old daughter have nowhere else to go. He often beats her and accuses her of being a prostitute.


In the case of  B*, 38, a court residence order directed her abusive husband to pay her Rs 2,500 per month towards rented accommodation. With that sum entirely inadequate to rent a home in Srinagar city, a weary B moved back with her husband and did not pursue the case further. 

If B had been a young working woman or a college student, she might have found a rented home, but for a woman who has been deserted by her husband, it is virtually impossible to find a place to live.


 “Neither the amount, nor the anticipated challenges mattered, but the fact is that the order went against the spirit of giving me relief, a dignified shelter,” said B. “That was the biggest downside.”    


The judiciary lacked basic awareness of the domestic-violence law, said Subreen Malik, a lawyer who runs Mehram, an NGO that works with women who endure sexual- and gender-based violence. Malik, who has worked with survivors for about a decade, said that the court systems are influenced by socio-cultural and religious understandings rather than legal provisions. 


“We are not ready to see domestic violence as different from other civil suits,” said Malik, who described the judicial approach as “mechanical”. 


“The act gives women  provisions that are rarely utilised and understood and then we take no time to call it a misuse of law by women,” said Malik, who added that victim shaming was so deep that survivors were, often, asked to move on with their lives without resolving the issue or addressing their trauma. 


The priority accorded to domestic violence laws, said Malik, “is such that in our university curriculum, we were never taught about the existence of any such law, except as a chapter in an optional paper”. 


The law, said Malik, must be “implemented in the real sense, so that the rights of women are not left to the subjectivity and public perception”. 


*Denotes that identities have been hidden on request.


(Arshie Qureshi is a research scholar from Jamia Millia Islamia. Her areas of work include gender, law and policy-making.)