The recent proliferation of what is called as ‘women’s courts’ in India has received relatively little attention in the literature on ‘legal pluralism’ or ‘alternative dispute resolution (ADR)’ in that country. I use the term ‘women’s court’ to refer to a broad and somewhat diverse category of dispute resolution bodies set up specifically to deal with women’s marital and family problems, usually by counselling and mediation between the complainant and her husband or other relatives. Their goal is to avoid matrimonial litigation and, if possible, find a way to reconcile the couple and keep the family unit intact. They do this by persuading the parties to agree to some kind of compromise settlement of their differences that usually includes commitments by both parties to change behaviors that have created conflict between them in the past. These bodies go by a variety of names in local languages, such as Mahila (or Nari) Adalat (women’s court), Mahila mandal (women’s circle), Mahila panchayat (women’s council), Mahila manch (women’s platform), Nari Nyaya Samiti (women’s justice committee) and so on. Some are official government bodies, others are run by voluntary organizations under the guidance of – and with some financial support from – government agencies whose responsibility it is to promote the welfare and empowerment of women. Others have no official status at all but are set up and run independently by women-led non-governmental organizations (NGOs). The latter cover their expenses largely with charitable donations and grants often from international development agencies that in recent years have devoted a great deal of effort and significant amounts of funding to the promotion of endeavours of this and other kinds for the benefit of poor and troubled women.
All-woman courts have at least one significant advantage over their alternatives: they provide relatively congenial spaces within which a poor, minimally educated and unsophisticated woman can feel free to speak openly about the woes that beset her. In these spaces, a woman can also feel some confidence that what she says will be understood and interpreted appropriately by those to whom she is relating her story. But the very fact that the woman petitioner and the panel of mediators share a common set of cultural assumptions and beliefs may also mean that she is persuaded to enter into a compromise settlement that entails her agreeing to accept constraints on such things as her freedom of movement and association or her ability to dispose of her own earnings, in exchange for a promise by her husband to begin supporting his family, treat her more kindly, give up his addictions to alcohol or drugs or cease having sexual relations with other women. These accommodations to what is a fundamentally inequitable husband-wife relationship, which the woman is urged to accept in the interests of preserving the marital bond, are not very different from what she would be asked to agree to had she turned for help to one of the other dispute resolution venues that are available to women in her situation.
The development of women’s courts in India came about within the context of judicial reform movements in India that date back to the early years after the country gained its independence from Great Britain.
As Galanter and Krishnan have argued, the inefficiencies, the over-crowded dockets, the prevalence of corruption and the many other defects of India’s courts had created in the public mind a widespread distrust of and lack of confidence in the judicial system.
For large sectors of society and large areas of conduct, civil courts afford no remedies or protection. When pressure builds to provide usable remedies for a particular sort of grievance, the solution, understandably, is not to undertake the Sisyphean task of reforming the lower courts, it is to by-pass them (2003: 203).
One way of accomplishing this was by setting up new types of dispute resolution bodies as alternatives or supplements to the state-sponsored judiciary. The Government of India began setting up specialized tribunals to hear particular kinds of cases and encouraging the arbitration of disputes by means of mechanisms provided for in the colonial-era Arbitration Act of 1940. It also attempted to revive – or to reinvent – supposedly indigenous methods of dispute resolution. Thus in the late 1950s, a system of judicial councils or Nyaya panchayats was introduced; although it was claimed that these councils were modelled upon existing rural community or caste panchayats, they differed from the latter in a number of ways. Most importantly, their members were democratically elected rather than drawn from a self-selected group of influential local elders. Furthermore, they were to administer the law of the land, rather than to enforce local custom. But this attempt to devise an alternative route to justice at the village level ultimately proved to be unworkable and by 1970 the institution had become ‘moribund’ (Meschievitz and Galanter 1982).
Soon thereafter legal reformers began advocating the establishment of a different kind of alternative dispute resolution system, the so-called ‘people’s court’ (Lok Adalat). These courts were to be presided over by appointed mediators. They were envisioned as venues that would be more accessible as well as more effective than the official courts, especially insofar as the needs of the disadvantaged were concerned. They would also help to relieve the courts of overcrowding by taking on disputes that were better suited to arbitration or negotiation than to litigation.5 Many millions of such cases have been ‘settled,’ or ‘compromised’ by Lok adalats since the first one began operating in 1982.6 While acknowledging that they offer some procedural advantages over the regular courts, critics have cast doubt upon the extent to which these bodies actually deliver ‘justice’ to the weaker party, inasmuch as he (or she) usually ends up being forced, in exchange for a cheaper and speedier resolution of his case, to accept a much less advantageous award than he would otherwise have been entitled to under the law (Galanter and Krishnan 2003, 114–116). This observation is illustrative of Nader’s contention – with reference to the larger, worldwide movement for what she calls ‘trading justice for harmony’ in order to ‘get the “garbage cases” out of the [regular, overcrowded] courts,’ (1992, 468) – that an almost inevitable consequence of diverting disputes between unequals to ADR bodies for mediation is that the powerful will prevail (see also Nader 2002).
In the late 1970s and early 1980s feminists also began to actively press for judicial reform. This was a time when issues of violence against women, including (but not limited to) domestic violence, were arousing increasing public concern. Women activists employed a variety of methods to raise public awareness of these issues and sought ways of lessening its prevalence, punishing its perpetrators and providing succour to its victims (Katzenstein 1989).
One of their key approaches was to press for the enactment of laws that would criminalize particular forms of violence against women. In this, they had a number of successes. Thus in 1983 Section 376 of the Indian Penal Code (IPC) was amended so as to increase the penalties for rape and better protect the privacy of victims (Dhagamwar 1992, 237–287; Agnes 1998, 84–102). A new Section 498A of the Criminal Procedure Code (CrPC) was enacted in the same year that made ‘dowry harassment’ – or severe and continuous cruelty inflicted on a woman for any other reason – by her husband or in-laws a crime. Over time, the number of cases filed under this section has continuously risen, though conviction rates remain low (Dave and Solanki 2000). Women’s organizations that had supported passage of the law soon began to raise serious doubts about its effectiveness, particularly since it only indirectly addressed the problem of domestic violence per se. Some feminists began to question whether a criminal law was the most suitable mechanism for dealing with this complex phenomenon. As a result of their efforts, a new law – the Protection of Women from Domestic Violence Act (PWDVA) – was finally enacted in 2005 and came into effect in October 2006. It provides a comprehensive set of civil remedies for victims of domestic abuse.
This act too has been something of a disappointment to many. There have been numerous problems of implementation, some of which are a consequence of the central government’s failure to allocate any funds for its enforcement. Some state governments have provided at least partial funding for the purpose but most have not. And there has been a widespread failure to hire the ‘protection officers’ who, under the terms of the act, are supposed to receive complaints of domestic violence and personally assist the victims throughout the legal process.
Instead, state governments have simply assigned those tasks to existing officials, without relieving them of any of their other duties (Jhamb 2011). In the 1980s, also due to the efforts of the women’s movement, additional legislation was enacted to target gender violence. A new Section 304-B was introduced into the IPC in 1984, in response to rising public outrage over media reports of so-called ‘dowry deaths’ – the killing of young wives, often by burning in supposed ‘kitchen accidents,’ in retaliation for their inability or unwillingness to extract from their parents gifts of cash or expensive consumer goods.9 The same year also saw the passage of the first of two amendments to a 1961 law that prohibited giving and receiving cash or other valuables as a consideration for a marriage (Dowry Prohibition Act 1961). The 1984 amendment defined the offences more clearly and enhanced the penalties for their violation; the second amendment in 1986 further strengthened the act. Yet there is little evidence of a decline in the dowry custom: indeed dowry amounts have continued to escalate, grooms’ families are increasingly placing exorbitant ‘demands’ on the parents of prospective brides, and the practice has spread to castes and religious communities wherein it was formerly unknown (see India, Parliament 1982, Rao 1993, AIDWA 2003, Basu 2005).10
Feminist legal activists also argued for improving through legislation the way that the justice system operated, especially insofar as the needs of poor women were concerned. They pressed, therefore, for reforms in the area of judicial access and procedure. They were instrumental in pushing for enactment of the 1987 Legal Aid Services Authorities Act (LSAA), under which poor litigants are to be provided with free legal services,11 and the Family Courts Act of 1984 (FCA), which provided for the establishment of special courts to handle matrimonial causes – suits for divorce, restitution of conjugal rights, child custody, maintenance, and the like. These kinds of cases were formerly tried in the regular courts, along with other kinds of civil suits, and still, are so handled in places where family courts do not exist. The family courts were designed to be more informal procedurally and therefore more accessible and less intimidating to the poor and uneducated and to women in particular. Lawyers, legalistic jargon and strict rules of procedure and standards of evidence would be dispensed with: clients would be allowed to plead their cases directly to the judge in ordinary language. The customary adversarial relationship between petitioner and respondent would be replaced by an emphasis on conciliation. It was also hoped that in these special courts matrimonial cases could be disposed of more expeditiously than was possible in the overburdened civil courts, where lengthy delays are endemic.
Women’s low rate of resort to the courts:
All of these new ‘women-friendly’ laws notwithstanding, it is still the case that the vast majority of women victims of domestic abuse and other kinds of marital discord do not turn – and never even consider turning – to the state for succour. And, if they do so, it is usually only after they have been unable to reach a solution to their problems by other means. As Holden reports from her research in rural Madhya Pradesh, official law is the very last resort for family disputes.. .even at the level of the official law court the litigants are often involved in forum shopping strategies aimed at unofficial and out-of-court arrangements’ (2008, 106).
Typically, a woman who finds herself in a violent or otherwise unhappy marriage begins by trying to get the elders of her husband’s family to take heed of her complaints (unless, of course, they are the ones responsible for her distress!). Very reluctantly she may eventually make her natal family aware of the difficulties she is facing. But more often than not their response is to urge her to adjust to the situation by being more obedient to the wishes of her husband and in-laws so that they will have no reason to abuse her. If things do not improve, her male elders may decide to approach her in-laws to try to reach a solution. Members of the two families’ wider kinship networks may be consulted for advice or a respected and influential man from the caste or from the village or urban neighbourhood where they live may be asked to mediate. If these informal efforts prove unsuccessful, she or her family may take her complaint to a local non- state dispute resolution body, such as a council of elders from her caste, community or religious sect.
In any case, in India, it is considered shameful for anyone, especially a woman, to take a family dispute to court. Conflicts between close relatives are considered very private matters that should be kept strictly within the family, not broadcast to outsiders. A woman who airs her complaints before complete strangers and asks a judge to pronounce a judgment against her husband or one of her nearest kin demonstrates a willful disregard for family solidarity and breaches all accepted norms of feminine deportment.
Finally, women share their society’s widespread scepticism concerning the inability of the lower courts to deliver justice. Corruption is widely believed to be so rife within the judiciary that whoever has greater financial resources and can wield the most influence over court personnel will win out. As a male, low-caste Rajasthani villager once explained to Erin Moore, ‘With money you can buy any result you want; if you put the skull of a man whom you have killed into the palm of your hand and lay five or ten thousand rupees on top of that, you will be set free’ (1993, 530–531).
But women have a particular reason to doubt that they will receive justice if they go to court: almost all judges are male and overwhelmingly share the patriarchal values of the wider society, often holding the women who come before them to idealized, high standards of feminine behaviour. Scholars who have examined High and Supreme Court decisions have shown that judges often by-pass the legal rights of women who, in their perception, have deviated from such standards. Even when prefaced by words of ‘sympathy for the “fair sex,”‘ judgments ‘tend to be conditional on women’s conformity to expected standards of feminine propriety’ (Uberoi 1996, 321). Although I cannot cite concrete evidence that the same attitudes prevail among lower-court judges, there is little reason to expect them to be very different. My own research in the Chennai Family Court confirms that there is, at the very least, a marked paternalistic tendency in the way women are dealt with at this level of the judicial system. I have observed that every effort is made, whether by the court-appointed ‘counsellors’ or by the judges themselves, to persuade female litigants to ‘reconcile’ with their husbands. They do so because – or so they argue – they believe that it is better for a woman to continue living in a marital relationship – even one in which she is badly treated – than to live on her own as a single woman, with all of the economic and social hardships that such a status entails (Vatuk 2001).
Alternative dispute settlement venues designed specifically for women:
It is not surprising, therefore, that feminist activists would be critical, not only of the state’s formal judicial system but of these kinds of ‘customary’ quasi-courts as well, for failing to deliver justice to women whose husbands and/or in-laws19 have subjected them to abuse.
Therefore in the late 1980s, as a result of urging from women’s organizations, various government agencies began setting up alternative dispute resolution bodies to specifically address women’s needs. Though funded by the government, they were not designed as official arms of the judicial system but rather as a means of settling marital and other family disputes by mutual agreement between the parties to obviate the need for litigation.
One of the first experiments along these lines involved setting up special women’s ‘cells’ in police stations. Female police officers or social workers would be assigned to deal with women’s complaints of dowry harassment, domestic violence, abandonment, rape, incest and so on. In 2006 I visited on several occasions a so-called Women’s Counseling Centre, attached to the office of the Police Commissioner in a Muslim-dominated neighbourhood of Hyderabad’s Old City. The volunteer counsellor was a young Muslim woman advocate with a diploma in marriage and family counselling who held office hours for women supplicants every evening. Most of those whom she counselled had been referred to her by the police station, which they had approached to complain of domestic abuse. The Commissioner told me that the policy he followed was to encourage women to delay filing formal charges against their husbands and/or other family members until they had first tried, with the counsellor’s help, to work out a mutually agreeable settlement with those who had been mistreating them.
The counsellor had been assigned a small two-room office just inside the outer gate of the police station compound. Women referred to her by the police would first come to her for a private hearing. After this, she would summon the husband (or other relatives) to come to her office the following week. The wife and sometimes other relatives – hers and his – often attended these sessions, in which the counsellor would question the man about his wife’s charges and ask what he was willing to do to improve their relationship. On these occasions the discussions among those present often became heated. The counsellor’s goal – not always attainable, she admitted – was to reach a compromise, whereby each party agreed to change certain of their behaviours so that a reconciliation could be achieved and the marriage preserved.
All-Women police stations:
In many of the larger cities, free-standing ‘women’s police stations,’ entirely staffed by female police officers, also began to come came into existence during this period. These stations sometimes employed – or recruited as volunteers – professionally trained social workers or psychologists to counsel women clients. In other cases, female police officers performed counselling duties themselves (see Poonacha and Pandey 2000, 568–569).
Counselling services run by trained social workers in the employ of the of the Tamil Nadu State Social Welfare Department were available in all three of the All-Women Police Stations operating in Chennai in 1998–99. Like the counsellor whose sessions I later observed in Hyderabad, one of those whom I interviewed in Chennai in 1998 told me that her goal was to reunite the couple…Otherwise, the women have no way to support themselves. They are economically dependent and their parents usually aren’t in a position to take on that responsibility, especially if they have children.
According to this counselor, once she had gotten the parties to agree on a future course of action that would defuse the hostility that had developed between them, she would follow up their progress by having them return to her office each month to talk about what had been happening in their marriage since she saw them last. If they were still having problems, she would advise them further on how to improve their relationship.
Women’s Lok Adalats:
Women’s Lok adalats – structured along the same lines as other specialized Lok adalats discussed above – have also been set up under the auspices of various state governments during the past 30 years. One of these began operating in Hyderabad in 2001, under the joint sponsorship of the Andhra Pradesh Women’s Commission and the A. P. Legal Services Authority. At that time it had two judges – a retired (female) lawyer/public prosecutor and a retired (male) social worker – who met once a month to hear cases referred to them by those parent agencies. Most of the women who came before them were seeking a divorce or a maintenance order (under S. 125 of the CrPC) or had filed charges of dowry harassment or cruelty against their husbands under S498A of the IPC. Again, like the women’s police station counsellors whom I cited above, the woman judge of this Lok Adalat explained that their goal was to ‘reconcile’ couples. In order for their case to be heard by this Lok Adalat, both husband and wife had to agree to submit to arbitration. They would appear on the same day to present their respective versions of the case, which, if it was especially intractable, might take several sessions to be resolved. Once the panel had rendered a decision there was no avenue of appeal. Should either party be dissatisfied or fail to abide by the judgment, they would have to go back and fight their case from the beginning in a regular court.
A different kind of forum, but one with the similarly optimistic agenda of ensuring the preservation of families, was the weekly Madar Sangam (literally ‘women’s association’ but called in English ‘Centre for Women’), run by the Tamil Nadu State Legal Aid Authority.20 As mentioned above, I attended these gatherings on a fairly regular basis for several months in 1998–99. Hearings were convened every Saturday afternoon in a large, run-down government warehouse building in downtown Chennai. The (male) Secretary of the Authority, a retired (female) social worker, a retired (male) executive with Burmah Shell and a young woman alcohol addiction counsellor constituted the mediation panel. They sat at a long table on a raised platform before a largely female crowd. There were not enough chairs to accommodate everyone – almost half of the supplicants with their accompanying relatives had to stand at the back or await their turn in the yard outside.
Almost all of the cases involved marital problems of one kind or another. On one of my visits, for example, the first complainant was a second wife, married to the widower of her deceased sister whose children had been, from the outset, hostile to their new stepmother. The situation had caused conflict between her and her husband and she had recently left him to return to her parents’ home. At the hearing, she was allowed to tell her story first and then her husband’s father was given the opportunity to speak. He introduced himself as a former professor and, unlike everyone else in the room, made a point of addressing the panel in English, rather than in Tamil, the local language. The Secretary asked him a few questions and then suggested that the children talk privately to the social worker, so that she could determine why they so disliked their stepmother and whether it might be possible to find a way to bring the family together.
However, he said, in the meantime, the complainant’s husband should be paying her a monthly maintenance stipend. His father replied that the husband had been maintaining his wife all along but the wife’s brother broke in to sharply contradict him. At this, the wife’s father stood up and asked – also in English – to be allowed ‘to vent my feelings!’ But he was told that nothing positive could come of permitting him to do that now: he would have to wait until the next meeting. After some discussion among the members of the panel and between them and the husband’s father, it was finally agreed that the following week the latter would bring Rs. 1500 for his daughter-in-law to the Legal Aid office. Another meeting was scheduled for a month hence. In the interim, the social worker would meet individually with each of the concerned parties and try to come up with a possible solution to their problems.
On another occasion, a small, thin woman, came up to the podium to explain that she had been married for only a year to a drunkard who regularly beat her up. But before she had a chance to elaborate upon her story, her husband – a large, heavy man – stood up to interrupt and refute her version of events, shouting and shaking his finger threateningly. He was given the floor and proceeded to present his case. His wife listened for a while, then interrupted him and began crying. Soon both were excited and angry, talking at once. She kept addressing herself to the woman social worker, calling her by the English title, ‘Madam,’ and appealing to her for understanding. The latter listened sympathetically for a while but then became impatient and started scolding the young woman to ‘stop crying and just say what you want to say!’ Eventually, the Secretary suggested that they postpone the discussion for the following week.
These encounters and others that I observed revealed interesting class and gender disparities and disjunctions, both among the counsellors serving on the panel and between them and the women and men who had come to have their disputes resolved. There was a noticeable element of hierarchy in the relationships among the panellists themselves. Not only the female social worker but also the male former business executive allowed the Secretary of the Legal Aid Authority to dominate the questioning and take the lead in proposing solutions. The young addiction counsellor said very little except when a question was put to her directly about a man who drank excessively or was addicted to drugs. The older woman social worker also tended to defer to her male colleagues, except when responding to a direct appeal from a woman complainant.
During discussions about the marital problems of the women who had come to the Sangam for help, the two male panelists directed their questions mainly to the husbands and other males in the assembled group and often gave them more time than they gave the women to expand upon their versions of what was going on in the marriage. Male clients likewise addressed themselves mainly to the Secretary and the other man on the panel, while women consistently directed their remarks to the senior woman, addressing her, even when speaking in Tamil, with the honorific English title of ‘Madam’. Her manner was usually sympathetic and reassuring but she became quite irritated and often spoke sharply to women who were becoming – in her view – overly emotional or failed to make their points clearly and in an organized fashion.
Furthermore, when speaking to individual supplicants, the counsellors consistently used the familiar Tamil forms of pronouns and verbs, such as are customarily employed when speaking to social inferiors, such as servants, workmen or vendors. On the other hand, those who had come seeking help used the more polite and respectful grammatical forms when addressing the panel members. Of course, when, as in the first case, a client was clearly of a social class similar to that of the counsellors and was, therefore, speaking in English, this linguistic issue did not arise.
Many political parties, both on the left and on the right, also run women’s counselling or advice sessions, usually under the auspices of their ‘women’s wing’. Scholars who have observed the activities of the Mahila Aghadi, the women’s branch of the right-wing Shiv Sena party in Mumbai and elsewhere in the state of Maharashtra have mentioned their performing such services for women victims of domestic violence in their local neighbourhoods, though they are also known to use public threats and shaming and even physical attacks to discourage men from continuing their abusive behaviour (see, for example, Sen 2007; Bedi 2009, 2010). The All-India Democratic Women’s Association (AIDWA), affiliated with the Communist Party of India (Marxist) does not engage in methods of this kind. In its New Delhi office, it holds weekly meditation sessions for troubled women and their families every Saturday morning.
I was present there one day in 2011 when two mediators spent the better part of three hours dealing with the marital problems of two Muslim and one Hindu couple. Both mediators are middle-class, university-educated Muslim women, but they also involved in each case a less well-educated, lower or lower-middle-class member of the party’s ‘women’s committee’ (Mahila Samiti) from the complainant’s own neighbourhood. The latter did not take very active roles in the process, however, only occasionally offering some additional information or making a tentative suggestion about what might be done to resolve the issue at hand. Here cases were dealt with, not in a large, almost public, forum, as in the Chennai Madar Sangam, but separately, in private sessions held inside the small AIDWA office. Those who arrived while an earlier case was being discussed had to wait outdoors in the building’s front yard until it was finished.
The cases were similar to those that I observed being mediated in Chennai. A woman who had been married for only a few months had left her husband because she claimed, he was addicted to alcohol and had been mistreating her.
She was adamant about wanting a divorce, so most of the discussion revolved around arrangements for the return of the goods her family had given as dowry when they married and an appropriate cash amount to be paid to her as a divorce settlement. The second case was a dispute over child custody between an elderly couple and the widow of their recently-deceased son, who had already moved back into her natal home and intended to remain there: again, much of the discussion centred around monetary issues.
This was not the first time that the AIDWA leaders had met with these families; they had already established a relationship of trust with the complainants and, to some extent, with their opponents as well. They asked questions and listened attentively to what each had to say, then offered concrete suggestions about how they might resolve their differences. They urged each party to make compromises, financial and otherwise, in order to reach a mutually agreeable settlement. They spoke kindly and sympathetically to the each of the complainants but didn’t hesitate to say so when they felt that one of them was being unreasonable or had behaved badly. Perhaps not surprisingly, they seemed somewhat less patient with the erring husbands than with the women who had sought their help.
All-Women peer led courts:
None of the alternative dispute resolution systems that I have described is entirely satisfactory from the perspective of many feminist activists, who feel increasingly strongly that all-female dispute-resolution bodies provide a better model than any of these for resolving women’s marital problems. In their view, the class – and in some cases also the gender – differences between the mediators and the women they serve that are present in almost all of these venues, both hamper open communication and make it likely that middle class, patriarchal values will be imposed upon the poor women who form the bulk of their clientele. For these reasons, they advocate the use of all-woman courts led by peer- mediators.
All-woman, peer-led courts are designed primarily to serve the poor, though they welcome all comers and are even approached occasionally by well-off, middle-class complainants. They are in most cases overseen by one of the many NGOs active in India today that devote themselves to women’s welfare and empowerment, but many of them are government aided or even set up and directly run by a government agency. Their leaders tend to be well-educated women from middle or upper class and caste backgrounds but local women of the same general class, geographical, linguistic and cultural background as their client base are usually recruited to serve as mediators. The latter may be only minimally educated, if at all, but undergo a period of feminist conscious-raising, are given instruction in the particular NGO’s philosophy of dispute settlement, and acquire a basic knowledge of the relevant legislation before taking up their responsibilities.
The rationale for using such women as mediators is based on the conviction that in order for a distressed woman to air her grievances adequately she should be provided a setting in which she can accuse and even confront face-to-face those who have harmed her, without being hampered by feelings of inferiority, embarrassment, fear and powerlessness. She should be able to describe and explain her problems in her own words to women like herself who are intimately familiar with the social and cultural context of her life, who share her own assumptions about right and wrong behaviour, who understand – not simply intellectually but through personal experience – what she is going through. mediators who are in these respects the woman’s own peers are in a much better position than an educated middle class man or woman, however well-trained and well-meaning, to help her reach a solution that is both appropriate within the local social and cultural context and also workable – whether it takes the form of a mutually satisfactory compromise settlement or a suggestion about how to escape the situation altogether and begin life a new.
All-woman courts typically meet on a regular basis, on a fixed day and time every week, at a convenient location within the neighbourhood that they serve. They are usually run a group, rather than one-on-one, sessions. While one ‘case’ is being discussed and dealt with, others who are waiting to be called upon are sitting in the same room, listening to and even on occasion participating in the often lively debates that ensue. In those that I have attended, as in those described by other scholars, the peer-mediators model their procedures broadly upon those followed in civil courts, keeping a register in which cases are numbered and dated, along with a separate file for each case, in which is noted down whatever advice was given to the client in previous meetings, the details of any decisions made or agreements or settlements reached, and reports on later follow-up visits to the client’s home. Since most NGOs charge a small fee for hearing a case, the amounts paid are also recorded in each supplicant’s file (see Merry 2006, Lemons 2010, Grover 2011).
When a woman comes in to complain against a husband (or another relative), she is asked for the latter’s address and other contact information. An ‘official’ letter is then sent – or nowadays a call made to his mobile phone – summoning him to appear in a week or two to present his side of the story and discuss what might be done to improve the situation. After several sessions, if all goes well, the couple is assisted in drafting an agreement to which both parties – and other family members present – affix their signatures or thumbprints. If the mediators cannot ‘reconcile’ the pair by such means, they may try to find another solution, perhaps accompanying the woman to the police station to register a complaint or to a civil court to file suit for divorce or maintenance.
If possible, they will find a sympathetic women lawyer who is willing to offer her services pro bono. Regrettably, however, female advocates are few and far between even in large cities and not all of them choose – or can afford – to waive their fees for an indigent client. In small towns and rural areas, female advocates are even less abundant. For this and other reasons – some of which I have reviewed above – if an all-woman court is unable to find a satisfactory solution to a poor client’s problems, the option of turning to the state for relief may not be easily available to her. A wide variety of cases was scheduled to be heard that day, not all of them matrimonial in nature.
Illustrations, a young Muslim woman had come to complain that her mother-in-law would not permit her to continue studying at the girls’ madrasa (Quranic school) that she had been attending before her marriage. The mother-in-law was asked to explain her reasoning. Even before she had finished speaking, some of those who were waiting their turn to be heard began interjecting their own views on the matter. Soon everyone in the room was talking at once. The mediators had difficulty trying to quiet the crowd, but once they had done so they began fervently urging the older woman to reconsider her opposition to her daughter-in-law’s wish to continue her education. They told her that not only the young woman herself but any future children she might have would benefit if she were educated. her that part-time school attendance would not prevent her son’s wife from fulfilling her household responsibilities. They were unable to convince the older woman to change her mind but asked her to think it over and come back again later in the month to discuss the matter further.
Action India’s Mahila Panchayats:
Another NGO sponsor of all-woman courts that is heavily dependent upon overseas funding is the Delhi-based Action India (AI) (Sekhon 1999, 39). begun as a purely voluntary welfare project in some of the ‘resettlement colonies’ that had been set up during the then Prime Minister Indira Gandhi’s ‘Emergency’ (1975–77) to accommodate hundreds of thousands of squatters removed from the public lands that they had long occupied in different parts of the city. In 1979 some of AI’s women members, influenced by India’s growing women’s movement, began to organize women at the community level. These educated, middle-class women saw themselves ‘not as leaders, but facilitators’ for the formation of autonomous women’s groups, called sabla Mahila sanghs (‘associations of empowered women’), that would work for women’s welfare and empowerment within their own neighbourhoods (Sekhon 1999, 28–29). By the 1990s complaints of domestic abuse were regularly being brought by local women to the attention of the neighbourhood women’s associations. In response, the AI decided in 1992 to launch a program to focus upon issues of women and the law, a centrepiece of which would be the establishment of all-woman conflict-resolution bodies, called Mahila panchayats (‘women’s councils’). Today AI directly runs a number of such panchayats in the same localities and is also linked to a network of 84 all-woman courts run by other Delhi NGOs, whose members they train in their own methods of dispute settlement with funding from the Delhi Commission for Women, a municipal government agency (Sekhon 1999; Action India 2009; Magar 2003; Lemons 2010, 58–88; Grover 2011, 153–202).
According to AI’s website, a total of 6756 cases were dealt with by the panchayats in this network between September 2004 and November 2009, of which 5720 are said to have been ‘solved.’ Unfortunately, these figures are not accompanied by any explanation of what criteria are used to determine which cases had a successful outcome. I interpret the term ‘solved’ to mean that the mediators drafted and had the parties sign settlement agreements. Whether all of these couples were permanently reconciled and are living happily ever after is another matter. These Nari adalats and some all-woman courts run by other women’s organizations do try to regularly follow up their clients for a period of time through monthly home visits. But, for obvious reasons, they cannot continue to do this indefinitely for every couple. If, after a few months, they have detected no new signs of difficulty, they may interpret this to mean that their interventions have succeeded.
Nevertheless, as AI claims on its website, there are some other positive impacts of the program: women victims of domestic violence have been ‘empowered,’ have begun to realize that they are not alone in their suffering, have learned how to articulate their problems without feeling guilt or a sense of personal failure, have improved their decision- making abilities and have developed higher levels of self-esteem and self-confidence (Action India 2009).
Two of AI’s Mahila panchayats, one located in a predominantly Hindu locality (Grover 2011) and the other in a Muslim neighbourhood (Lemons 2010), have recently been studied by ethnographers. Grover finds that the great majority of women who come to the panchayats she studied have what she calls (using the Hindi expression) ‘karcha- pani’ complaints: that is, husbands who are not providing financially for their wives and children, either because they are not working, are using their earnings for other purposes, are living with other women or have deserted their families altogether.
Another very common set of complaints revolve around unfounded accusations by the husband that his wife is having sexual relations with other men. Domestic violence is a recurring issue that represents a constant in the lives of most of the women (2011, 174–176; cf. Magar 2003: 514–516). But despite the growing number of Mahila panchayats that have been set up in the city in recent years, there has been no significant elimination of domestic violence in low-income localities or.. .a fundamental shift in attitudes. The Mahila panchayats concept is a salient addition to the array of non-legal institutions that are attempting to eliminate violence in the conjugal home.. .but given their limited resources they cannot by themselves bring about rapid change (Grover 2011, 185).
Another problem that Grover sees is that in the compromise settlements they broker, these courts ‘validate the male breadwinner ideology’ in which the woman’s role is that of a dependent housewife. These settlements ‘reinforce the understanding that women should subscribe to hierarchical gender roles’ (185). Here Grover draws upon Kandiyoti’s notion of the ‘patriarchal bargain,’ according to which women in male-dominated societies, rather than actively resisting patriarchy, respond to the constraints it imposes by trying to maximize their options within it (1988).
Nari Adalats sponsored by Mahila Samakhya:
A somewhat similar but much larger network of all-woman courts (variously called Nari Adalat, Mahila manch or Nyaya Samiti [‘justice committee’]) operates with state government support in a number of Indian states. It dates back to the mid-1990s, when it was set up in certain districts of Gujarat, Karnataka and Uttar Pradesh as an NGO/government partnership, an outgrowth of a ‘women’s confederation’ (Mahila Samakhya [MS]) that was established in 1989 by the Ministry of Human Resource Development, Government of India.24 MS began by setting up village women’s groups (Mahila Sangh) and training them to work for their own empowerment. Later, having become aware of the seriousness and widespread prevalence of the problem of domestic violence in the rural areas in which it was working, it initiated a program of all-woman courts (Iyengar 2007, 8; see also Bhatla and Rajan 2003; Merry 2006; Mahila Samakhya Karnataka 2012; Basu 2011). These courts meet on fixed dates in a central location – often in a government building – to which women from surrounding villages come with their marital and family grievances. The vast majority of supplicants have experienced domestic abuse associated with such issues as dowry demands, the wife’s failure to bear sons, suspicions of her infidelity, the husband’s involvement with other women, his addiction to alcohol or drugs, etc.25
After a complainant’s application is filed with the Adalat, the other party or parties are contacted and summoned to appear at a later date. Only when both sides are present do the negotiations begin. The organization believes strongly in the importance of community support for successful resolution of marital disputes, so arbitration is always carried out in ‘an open and public forum’ and local women’s groups participate in the process, ‘collecting all basic facts, generating opinion in favour of the victim.. .and monitoring the [nari Adalat’s] decision’ afterwards (Bhatla and Rajan 2003, 1660). Much of their ability to enforce their decisions against violators of women’s rights rest – just as it does for traditional male-run panchayats – on the social pressure that lay participants in the process can exert upon them. They believe that using the public square to shame the perpetrator and put him under public scrutiny produces in him a strong motivation to change his behaviour (Iyengar 2007, 19).
These courts use knowledge of local practices, customs and social networks to gather evidence and negotiate agreements, generate social opinion against the offender and sometimes use threats to involve the legal system as a means to intimidate him. However, the fact that maintaining the home and family to which the complainant belongs remains ‘critical to their core understanding of gender justice’ (2007, 10) clearly constrains them in terms of the kinds of remedies they feel able to offer to the abused women who come before them.
The foregoing discussion of Indian women’s courts – and all-woman courts in particular – raises a number of questions, the first of which is whether it is really appropriate to discuss these bodies within the conceptual framework of ‘legal pluralism’? The institution is clearly – at least in its origin – a ‘non-state’ one. But what is its ‘jurisdiction,’ beyond that which it claims for itself over the generality of troubled and abused women? It is the state’s judicial system that has overarching legal jurisdiction over most of the issues that impel such women to approach all-woman courts. But because the official courts are difficult to access and unsatisfactory in both methods and outcomes – from the perspective of the majority of their potential clients – all-woman courts are often a preferred venue, at least in the initial stages of a distressed woman’s search for a resolution of her marital problems.
Women’s courts are clearly a type of ‘alternative dispute resolution’ forum, though, unlike official tribunals set up by the government under the Arbitration Act, their ‘decisions’ are not officially recognized by the state-sponsored judicial system nor does the authority of the state stand behind them. Although they frequently employ a quasi-judicial rhetoric when referring to their aims and modes of operation and are often observed to replicate judicial procedure and methods of record-keeping at their hearings, their role vis-a-vis the state is peripheral at best and their goals overlap only partially with those of the formal justice delivery system, as represented by the police and the courts. This is true even in the case of women’s courts – such as those run by MS – that began as joint state/NGO efforts and continue to be state-sponsored (or at least partially so), receiving government funds and operating under the aegis of official state agencies.
A very important difference between these bodies and the state courts is that in most cases the aim of the former is not to see that the women who come to them for help get the ‘rights’ to which they are entitled under human rights principles or even under Indian law. Their avowed purpose is to defuse the hostility that has developed between the parties to a dispute – usually a married couple – and to find a compromise solution that will allow them to continue to live together in relative peace. They provide an alternative way – which they consider a better way – of mediating marital disputes, outside of the formal legal system, offering women what they term ‘social justice,’ rather than the ‘legal justice’ dispensed by state courts. Of course, they recognize that the women who come to them, including those whom they have persuaded to enter into a compromise settlement, are not thereby precluded from going to a civil court or filing a formal charge of cruelty with the police at some later date, particularly if the agreement worked out by the peer mediators turns out to be unworkable or unsustainable in the long run.
Although even the sponsors of all-woman courts sometimes speak of their process as involving the ‘arbitration’ of disputes, the word is actually a misnomer in this context. As that term is usually understood, it refers to a process in which the parties commit themselves to be bound by the decision of the presiding ‘judge’ or ‘arbitrator.’ But the women who come before a women’s court make no such commitment.
What they are offered is the opportunity to enter into a voluntary written agreement or contract with the party or parties that they allege are persecuting them. If one or both of the parties fail to live up to their promises to change their behaviour, there is nothing that the peer mediators can do, beyond suggesting that they all come back to discuss it further or advising and helping the woman to file a criminal charge against her husband or a suit for divorce or maintenance in a court of law.
The other key set of questions that have concerned scholars who have examined the actual practices of women’s courts in different parts of India has to do with how successful they are in achieving their aims and living up to their feminist convictions. In contrast to what a woman experiences when she stands before a courtroom judge, faces a panel of male caste elders, or even when she narrates her problems to a professionally trained female social worker, one who tells her sorry tale in the setting of an all-woman court knows at least that her listeners can really understand and empathize with her situation, if only because they themselves are women from backgrounds similar to her own, who have perhaps personally experienced similar situations in the past or have at least seen them play out before in the lives of their own relatives or neighbours. Such a woman also knows that when these mediators try to come up with suggestions for ameliorating her situation, they will take into consideration the particularities of her personal circumstances and propose solutions that are appropriate within the context of a shared set of cultural norms and assumptions about how a woman’s life is supposed to be lived.
Thus one cannot deny that all-woman courts provide certain benefits to women who have little access to any other form of recourse when their married life becomes intolerable. They offer, at the very least, a congenial space, not available anywhere else – in either the formal court system or the traditional male-run community councils – where women can speak out freely and without shame about their suffering and can hear what measures others think could be taken to relieve it. But one cannot equate the solutions that these courts offer with the kind of justice that the law is designed – at least in an ideal world – to dispense. But, of course, much hinges here upon what one means by ‘justice’. Clearly, there is a great disjuncture between the Indian judiciary, the international human rights movement and the advocates of all-woman courts on this point.
The difficulty is, that returning home to an abusive husband who has promised to mend his ways may indeed be a woman’s only realistic option, in a society where an unattached woman is not only viewed with suspicion and risks sexual harassment or worse but typically has no ready means of supporting herself or even securing more than a temporary roof over her head. Separation or divorce is, furthermore, not necessarily what every woman wants. Nor, even from an outsider’s perspective is it always the optimum solution for an economically vulnerable woman who finds herself trapped in a violent marriage. This was what a volunteer social worker with the Madras Family Court responded when I asked him why women who had come to file for divorce or maintenance were consistently being urged to ‘reunite’, despite the violence, emotional and physical, that the counsellors knew they had suffered at their husbands’ hands: ‘[If she divorces,] where will she go? What will she do?’ (Vatuk 2001).
The unfortunate reality is that women in this situation don’t have many viable alternatives. If they leave their husbands, how will they support themselves – and their children, if any? Their natal relatives are not necessarily prepared to keep them for the long term. To live on their own apart from relatives is socially disapproved and risky and, if they have young children, makes it difficult to leave home every day to go out to work. But most have few or no work skills in any case and, even for those who do, employment opportunities are few and far between.
So, rather than the all-woman court insisting on a radical solution to such a woman’s problems, one can argue that it makes sense for mediators to try to at least ameliorate her situation by talking to both parties and make them realize that they have a real stake in keeping their marriage together. In this way they may be able to get the husband to step up to the plate in terms of his financial responsibilities and to convince the wife that she will be better off if, rather than leave her marital home, she ‘adjusts’ to the situation by conforming as best she can to the ideal model of a submissive housewife, in the hope that her husband will live up to his promise to begin playing his proper role as well.
But before reaching a negative assessment of the work of all-woman courts, one must acknowledge that the problems of domestic violence and marital conflict that all-woman courts are attempting to remedy on a case-to-case basis are intricately related to the widely prevailing male bias and resulting gender discrimination that characterizes India’s society and culture as a whole. These factors are both related to and exacerbated by the fact that, despite laws to the contrary, women rarely avail themselves – for a variety of reasons – of the property rights to which they are entitled under the law (see Basu 1999).
Furthermore, even if they do own property or earn an income from their own labour, they are rarely in a position to fully control their disposal. In addition, a high proportion of Indian women, especially those who live in rural areas, are illiterate; among the rest, the average level of educational attainment remains low. These and other detriments contribute to women’s lack of self-confidence in dealing with the world outside of their homes and to their reluctance to step out of the bounds of society’s rules for feminine comportment. There are many institutions and organizations – both governmental and non-governmental, and including a plethora of international agencies – that have been devoting themselves for decades to the larger issue of how to banish all kinds of gender inequities within Indian society. That is exactly what AI and MS and other NGOs that sponsor these all-woman courts have been doing from the outset and have continued to do, especially by organizing poor women in local rural and urban communities to work for their own empowerment. But progress, though moving forward in the right direction, is slow.
Tackling these larger social problems is not within the power – nor is it within the mandate of – the kinds of women’s courts that I have discussed here. Those who run these courts, of course, recognize the existence of wider social problems but must restrict themselves to their more immediate task of trying to better the lives of the individual women who come before them with concrete problems.
Of necessity, they work, as best they can, within the constraints imported by the larger dominating patriarchal milieu in which they themselves, like their clients, are living every day. In terms of this more modest agenda, they appear to be having some, though admittedly a very mixed, degree of success.
Edited by Sakshi Raje
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