Blind in the fold of justice

Despite a plethora of measures including legislation, protection of women’s legal rights in various courts continues to be mired in confusing legalities, expensive lawyers and tunnel vision in dealing with domestic violence, says FLAVIA AGNES

Updated - November 17, 2021 06:18 am IST

Published - January 24, 2016 08:03 am IST

While there have been many legislative reforms to safeguard women’s rights, the infrastructure to actualise the ambitious and far-reaching reforms are sadly lacking within our court spaces. This has meant that reforms have remained mainly ornamental pieces, while the litigation space has continued to be hostile to women who approach the courts for protection of their rights. This is one area that needs immediate attention.

Apart from the huge backlog of cases which leads to delays in passing expeditious orders, the major problem appears to be lack of a competent and efficient legal aid to assist and guide women through the complex and confusing procedures.

While the legal aid system seems to be more effective in some states, in Maharashtra and particularly in Mumbai, there is an urgent need to improve the system as a first step in securing access to justice for needy women. This is true across all levels of courts — the family courts where matrimonial litigation takes place, magistrates’ courts where cases under the Domestic Violence Act are litigated and the sessions courts which deal with sexual abuse of women and children.

The family courts of Mumbai, the first such courts in the country, were set up in 1989 with the aspiration that they would be less formal and technical, and dependency on private lawyers would be reduced as the court staff would assist women in steering their way through the labyrinth that is legality and make rights easily accessible.

A quarter of a century later, the trend has been in the reverse direction where litigation has become more contentious, technical and long-drawn. No woman can approach these courts without professional legal representation by experienced lawyers, a service which comes with a hefty price tag.

This defeats the very purpose for which these courts were set up. Though legal aid is available within court premises, most litigants including poor and illiterate women approaching these courts for a meagre maintenance dole prefer to engage private lawyers, as legal aid is perceived to be of poor quality.

The extremely low remuneration paid to lawyers on the panel and their low status within the legal fraternity has ensured that only those who have failed to establish a viable legal practice are enrolling as panel lawyers, and the fear of compromise or collusion looms large.

On the other hand, the cost of engaging a private lawyer has become prohibitive and beyond the reach of most women who need it most: the destitute who are dispossessed of their matrimonial home, victims of domestic violence seeking protection orders, single mothers with minor children desperately seeking child support and maintenance for their survival.

At another level, despite the broad definition of domestic violence which includes physical, mental, economic and sexual abuse, our judges continue to apply the time-worn standards of physical cruelty, ignoring all other types of violence which women are subjected to including economic abuse, denial of maintenance, dispossession from the matrimonial home, among others.

Within the contentious litigation space, women’s claims are viewed with suspicion and projected as exaggerated. To add to their woes, while judgements which deny women their rights are seldom reported in the media, a few sensational cases concerning affluent sections of society are projected as the norm, which usually carry an anti-women bias.

This only serves to build public opinion that women who approach courts for enforcement of their rights are greedy, vindictive and manipulative. This, despite official data which continues to indicate that domestic violence is on the rise and media reports of gruesome cases of intimate partner violence.

The Protection of Women from Domestic Violence Act was enacted in 2005 to provide immediate protection to women facing violence and secure their rights of residence in their matrimonial home. The litigation arena was shifted from the family courts to the magistrates’ courts, and concrete provisions were included to render easy access to women by creating simple formats for applications, a new office, protection officers to help women approach courts, a timeframe to ensure expeditious remedies, free legal aid to reduce dependency on private lawyers.

Yet, a decade later, a feeling of dejection persists among activists that this too is a failed project.

Most litigation in these courts continues to be initiated by private lawyers who charge hefty fees. The lawyers in these criminal courts, unfamiliar with civil litigation, entangle women in unnecessary, long-drawn-out and multiple litigation. Despite the mandate of passing interim orders within 60 days, the courts do not do so for months on end. The appointed protection officers are not familiar with court processes and are plagued by the fear of courts.

The NGO activists prefer to resolve disputes outside the litigation fora, even in cases of acute domestic violence, through counselling and mediation and without protection orders due to their disillusionment with this new Act.

There is a dire need to evolve a convergent model among stake holders – the magistrates, legal aid authority and protection officers to ensure effective implementation of this Act, which is meant to provide immediate protection to women facing domestic violence. There is no cost attached to this; what is needed is the political will to make laws work on ground.

Points to ponder

* The system that gives needy women access to justice needs urgent improvement across family, magistrate and sessions courts

* A convergent model needs to be evolved among stakeholders – magistrates, legal aid authority and protection officers – to ensure effective implementation of The Protection of Women from Domestic Violence Act

* There is no cost attached to this. What is needed is the political will to make laws work on ground

About the author

FLAVIA AGNES is a legal scholar and women’s rights lawyer who has been able to combine her legal scholarship with active litigation support to victims of domestic and sexual violence. Her widely published writings have provided a vital context for feminist jurisprudence, human rights law and gender studies in India. She has written books like Law & Gender Inequality – The Politics of Personal Laws in India (1999), Women and Law (co-edit) (2004), an Omnibus, and Family Law (two volumes), a prescribed text book for law students (2011). She co-founded Majlis, which provides quality legal services to women and children. In 2011, Majlis started RAHAT, to provide socio-legal support to victims of sexual abuse and to help them to negotiate the daunting criminal legal system. So far, the organisation has been able to reach out to over 500 victims, with the motto of transforming victims into survivors.

For the complete list of stories in the Fixing Mumbai series, > click here
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