Family Courts and the Fluctuating Fortunes of Women

Born out of the political and social movements of the 70s and 80s to make gender justice more accessible and less intimidating, the Family Court as an institution is peculiar for more reasons than one. It adopted an inquisitorial system of adjudication in which judges wear more than one hat, and sometimes transition from a judge to an elder sister (Basu, 2012). The motivation for adopting innovative adjudication arises from the overarching directive of making sure that ‘survival of women doesn’t come next to technical jargon’ (Agnes, 2012). It is imperative to note how the family courts’ answer to the question of gender justice is procedural and not substantive. Even with respect to procedure, there is a deep seeded conflict between the courts’ objective to ‘preserve the institution of marriage’ and ‘welfare of women’. To believe that these two issues can be addressed simultaneously and adequately, is to invisibilise the ‘family and marriage’ as a site of violence (Johnson, 2000). The courts espouse an unhealthy obsession with the preservation of marriage often at the cost of those very women that it was instituted to protect and most importantly hear. 

Foucault in his book Discipline and Punish makes the argument that certain institutions exercise power not through the overt act of punishment as a spectacle of public torture but by discipline. The institutions reach out and manipulate the bodies of people to be caught up in a system of ‘constraints, prohibitions, and obligations’ to discipline. This analysis specifically applies to family courts because as opposed to all other courts that hand out visceral forms of punishment (Jail time, hefty fines, and seldom - death), family courts discipline the body through the law. The family courts while mediating the dilemma of constraint and freedom (Das, 2020) entangle the bodies of women in such obligations and prohibitions, and themselves become a site of violence. Thus, the fluctuating fortunes of women are purely oscillatory in nature in which they move from family to courts, from violence to violence. The absence of any assistance or representation in courts severely hinders a woman’s capability to argue for justice. Evidence has shown us that women who accuse their husbands of bigamy are not only confronted with the unrealistically high standard set for proving bigamy, but also risk putting their own marriages in jeopardy (Agnes, 1995). In an institution which is arguably the most paternalistic among others, and embodies patriarchal ideas of organization of society and distribution of work according to gender – a lack of representation means that the project of gender justice remains unachieved. The decision to make family courts lawyer free was to divorce the notions of winning and losing from the ‘preservation of marriage’ as an overarching aim, and yet the representation versus re-presentation dilemma (Spivack, 1983) is manifested through judges and their pronouncements that dictate the fortunes of these women. The concept of gender justice is often lost in translation between the aims and realities of family courts. 

Violence to Violence:

There are parallels to be drawn between Spivacks’ argument of how the colonizers committed epistemic violence by theorizing the identity of the colonial subject as the ‘other’ and how the family courts treat women in judicial spaces. The idea of epistemic violence is rooted in the idea that ‘a whole set of knowledge is disqualified as inadequate to their task or insufficiently elaborated; naïve knowledge, located low down in the hierarchy, beneath the required level of cognition” (Spivack, 1983). Thus the family courts, through their judges commit epistemic violence unto the women (as ‘other’) when they treat their lived experiences as beneath their personal understanding of circumstances and the institution of marriage, thereby pronouncing judgments invalidating the women’s voices and privileging their own. Foucault argued that given the chance, the sub-altern can ‘speak and know their conditions’ and Spivack further asked the question, ‘Can the sub-altern speak?, but I think a third very important question needs to be asked i.e. “Even if the sub-altern speaks, can and will the institutions listen?.

Constraints to Gender Justice:

Basu is her paper argues that we cannot expect satisfactory outcomes only by changing the forums and forms of ‘alternate dispute mediations’. She also critiques the idea such forums can provide a new form of listening and speaking to the marginalized without altering the fundamental logic of marriage encoded in the law. Derrida, in his book Of Grammatology argues that all power is established through texts, and to de-construct oppressive narratives and meanings, one has to trace the logo-centric development of meaning and authority, and then deconstruct it. Therefore, it is important to see how the normative understanding of marriage has established itself in the text (law) and is wielded by the judges to marginalize the already marginalized. 

In Kailas Vati, a case of RCR, the court establishing primacy of a husband over the right of deciding matrimonial house, thereby effectively eliminating considerations of woman’s aspirations, her career and most importantly her choice. In Harvinder kaur v Harmander Singh, Justice AB Rohatgi made the sexist observation that ‘in today’s society the multiplicity of divorces are proportional to the emancipation of women’ thereby suggesting that emancipation of women is subservient to the institution of marriage. Moreover he opined that marriage is sacred, and introducing constitution in it would amount to introducing a ‘bull in a china shop’, and pronounced the woman as the ‘breaker-up of the home’. The trend of maligning the character of women is quite evident in the case of Indira Sarma v VKV Sarma. Indira had suffered financial difficulties due to the defendant leaving her. Despite there were no marital ties, she filed for maintenance. Going against Chanmuniya, the court not only refused to give any relief to Indira, but went out of its way to call her a concubine. For an institution that proclaims itself to be the champion of gender justice, such instances are highly shameful. Similarly in Savtri Pandey, the wife had filed for divorce under desertion due to the husband having withdrawn from matrimonial responsibilities by virtue of having an affair. Even when desertion was found, the court refused to grant relief to her because the marriage was not consummated. The court held that she had committed a matrimonial wrong by not consummating. It reinforced the idea of the ‘role of a woman’ in marriage and normative obligations attached to that role. The court effectively took away rights from her and condemned her to that failed marriage, while leaving the man free to engage in extra marital affairs. The court in Animesh Tiwari, going by the person subjective test (as held in Dastane) of cruelty held that since the wife was from high society, she must have felt more humiliated by Animesh’s act of slapping and humiliating her, thus qualifying it as cruelty. The significance of the ‘high society’ reasoning is that by expressio unius est exclusion alterius, the court is of the opinion that people from ‘low society’ do not feel as humiliated when the same acts be committed against them, and in a case of such litigation, they will not be afforded the ground of cruelty. 

Free to do gender justice?

Naveen Kohli, and Amardeep show us that the courts are willing to depart from strict technicalities when it acts as a hindrance to justice. However the application of such sound doctrinal interpretation is very selectively used, and more often than not, suspended when it comes to gender justice. Despite that a few cases suggest to some hope. The Delhi HC, in Garg v Garg established the progressive logic of equality vis-à-vis the decision to establish the matrimonial home. The court recognized that reasoning in Kailas Vati is regressive and such interpretation has to change with time. Chanmuniya saw how the apex court expand the definition of 'wife' within the meaning of section 125 CPC that entitles the 'wife' or 'divorced wife' to maintenance, by arguing that such safeguards should be available to women who aren't legally married, but have lived together long enough, for it would be wrong to allow a man to take benefit of such a marriage like arrangement without being held liable under the same. In Geeta Hariharan section 6(a) of the Hindu Minority and Guardianship Act that reads "Natural guardian in the case of a Hindu minor: in the case of a boy or an unmarried girl—the father, and after him, the mother" was challenged as unconstitutional, on basis on Article 14 violation due to the words 'father, and after him, the mother'. Albeit with some ambiguity, the apex court ruled that the section has to be read in a manner such that the mother and father have equal rights to the natural guardianship of the child, and no subordination between genders exist. 

Finally, it is important to not forget that gender justice does not merely mean justice for women. In a country where non binary population still does not enjoy the full range of rights, the Arun Kumar judgment breaks stereotypes. The court held that a trans-woman comes under definition of ‘bride’ under section 5(iii) of the HMA, and she had the right of self-determination as  held in NALSA and Navtej. The court held that such meanings have to transform with the time.

To conclude this reflection on the project of family courts I'm reminded of Foucault when he said, “Humanity installs its violence in each of its systems and proceeds from domination to domination”. The project of the family courts awaits its transformation. 

P.S: The phrase 'fluctuating fortunes of women' has been taken from Family Law lectures held at Jindal Global Law School.