Historical
Development
The
emergence of women's courts in India can be traced back to judicial reform
movements in India that commenced in the early years following the country's
independence from Great Britain. As Galanter and Krishnan posited, the judicial
system's inefficiencies, overcrowded dockets, rampant corruption, and other
issues engendered widespread mistrust and lack of confidence in the judiciary
among the public.
To
achieve this, the Government of India established specialized tribunals to
handle specific types of cases and promoted the use of arbitration mechanisms
provided for under the 1940 Arbitration Act, which originated during the
colonial era. They also attempted to resuscitate or modernize indigenous methods
of dispute resolution. In the late 1950s, judicial councils and nyaya
panchayats were introduced. Although it was claimed that these councils were
modeled after the existing rural community or caste panchayats, they differed
in several ways. For instance, council members were elected democratically
rather than selected from a self-appointed group of influential local elders.
Furthermore, they were tasked with administering the land law instead of
enforcing local customs. However, these attempts to establish an alternative
dispute resolution system at the village level ultimately proved unsuccessful,
and by 1970, the institution had become more dysfunctional
Soon
after, legal reformers began advocating for the establishment of an alternative
dispute resolution system known as the People's Court or Lok adalat, presided
over by appointed mediators. These courts were intended to be more accessible
and effective than the official codes, particularly for the disadvantaged.
Furthermore, they were designed to alleviate codes' overcrowding by taking on
disputes better suited to arbitration, negotiation, or mediation than
litigation. In the late 1970s and the early 1980s, feminists also actively
advocated judicial reform, as issues of violence against women, including
domestic violence, gained increasing public attention. Women activists have
employed various methods to raise public awareness and understanding of these
issues, pushing for the enactment of laws that would criminalize specific forms
of violence against women and provide support to victims. In this case, they
had several successes.
In
1983, India amended Section 376 of the Indian Penal Code to increase penalties
for rape and to better protect the privacy of victims. Additionally, a new
section, 498A, was added to the Criminal Procedure Code, making dowry
harassment or severe and continuous cruelty inflicted on a woman by her husband
or in-law a crime. While the number of cases filed in this section has
continuously risen, the conviction rates remain low. Women's organizations that
had supported the passage of the law soon began to raise serious doubts about
its effectiveness, as it only indirectly addressed the problem of domestic
violence. Some feminists have begun to question whether criminal law is the
most suitable mechanism for dealing with this complex phenomenon. As a result,
the Protection of Women from Domestic Violence Act (PWDVA) was enacted in 2005
and came into effect in October 2006.This provides a comprehensive set of civil
remedies for victims of domestic abuse.
This
legislation has also proven to be a source of dissatisfaction for many people.
Several issues with the implementation of the Act have arisen, some of which
can be attributed to the central government's neglect to allocate any financial
resources for enforcement. Although some state governments have provided
partial funding for this purpose, most have not. Furthermore, there has been an
overall lack of hiring of protection officers, who, under the terms of the Act,
are intended to receive complaints of domestic violence and provide personal
assistance to victims throughout the legal process. Instead, state governments
have merely assigned these tasks to existing officials without relieving them
of other duties.
The
present law provides for local women's non-governmental organizations (NGOs) to
function as service providers for assessing the protection of officers, such as
ensuring the safety of women who have filed under the act while still residing
in their matrimonial homes. However, no such arrangement has been made at many
locations. Additionally, some recent High Court and Supreme Court judgments
have reinterpreted and weakened the essential provisions of the Act, which may
lead to lower court decisions being influenced by judges' personal gender
biases according to at least one critic. In the 1980s, due to the efforts of
the women's movement, additional legislation was enacted to combat gender
violence. A new section, 304-B, was added to the Indian Penal Code (IPC) 1984
in response to the growing public outrage over media reports of so-called dowry
deaths—the killing of young wives, often by burning, in supposed kitchen
accidents as punishment for their inability or unwillingness to obtain gifts of
cash or expensive consumer goods from their parents.
Feminist
legal activists advocated enhancing the functioning of the justice system,
particularly with regard to the needs of disadvantaged women. They commended 44
reforms in judicial access and procedures. These activists played a crucial
role in pushing for the passage of the 1987 Legal Aid Services Authorities Act,
under which impoverished litigants were entitled to free legal services. They
also contributed to the enactment of the Family Courts Act of 1984, which
established special courts to handle matters such as divorce, the restitution
of conjugal rights, child custody, and maintenance. Previously, such cases were
tried alongside other types of civil suits in regular courts, and this practice
continued in areas where family courts did not exist.
Family
courts, established to provide a more accessible and less intimidating forum
for the poor, uneducated, and women, are designed to be less formal
procedurally. These courts aim to eliminate the use of legalistic jargon,
strict rules of procedures, and standards of admissible evidence. Instead,
clients are allowed to present their cases directly to the judge in ordinary
language, with an emphasis on conciliation rather than the customary
adversarial relationship between the petitioner and the respondent. It was
hoped that these special codes, specifically designed for matrimonial cases,
would result in more expedient resolutions than delay-prone civil courts.
Despite these efforts, women continue to resort to courts at a lower rate than
men.
The
adoption of women-friendly laws has not resulted in a significant increase in
the number of women seeking state assistance for domestic abuse or marital
discord. Generally, women only turn to the state as a last resort after
exhausting all other possible solutions to their problems. Vatuk's findings on
women of various social classes in Chennai and Hyderabad align with Hollins’s
observations. When faced with violent or unhappy marriages, women typically
begin by attempting to resolve the issue through their husbands’ family elders.
However, if this fails, they may reluctantly involve their natal families, who
often advise them to adjust to the situation by being more obedient to their
husbands and in-laws. If informal efforts prove unsuccessful, the woman or her
family may seek help from a local non-state dispute resolution body such as a
council of elders from their caste or religious community. In some cases, a
respected and influential man from the same caste or village may be asked to
mediate disputes.
Women
facing marital issues often seek relief from the state after exhausting other
options, such as paying bribes to the police to register an FIR or making
under-the-table payments to court personnel to expedite paperwork. Another
significant obstacle is the high cost of hiring advocates. While official legal
aid societies provide assistance, the demand is high, and not everyone can be
accommodated. In India, it is considered shameful for a woman to take a family
dispute to court and conflicts between close relatives are generally regarded
as private matters. Nonetheless, women may still choose to file complaints
against their husbands or other family members before a judge, which is seen as
a breach of accepted norms of feminine behavior and a disregard for family
solidarity.
Ultimately,
women are often disbelievers in widespread skepticism regarding the inability
of the lower courts to administer justice. The pervasive belief in corruption
within the judiciary is that a party with greater financial resources and
influence over court personnel will ultimately prevail.
Treatment
of women by traditional non state dispute resolution bodies
The
prevalence of patriarchal attitudes is not limited to traditional institutions
but also extends to alternative dispute-resolution forums in which women and
their families frequently seek assistance from domestic violence or marital
issues. These forums comprise Shari’ at courts, mosque committees, caste or
community councils, and panchayats, which are responsible for resolving marital
disputes among Muslims and individuals from other religions, particularly in
rural areas and lower-income urban neighborhoods. Studies by Hayden (1999),
Moore (1993, 1998), and Solanki (2011) revealed that these forums are commonly
used in such contexts. However, it is crucial to recognize that these forums
have been subject to criticism for perpetuating patriarchal attitudes and
inadequately protecting women, as highlighted by Hussain (2006) and Lemons
(2010). The following excerpt from an observer's perspective highlights the
perceived insensitivity of certain bodies to the requirements of women. Often,
these bodies do not have any female members and, in some cases, do not permit
female complainants to participate in their own case hearings. Instead, they
insisted that a male relative represents a woman. Although women are
occasionally allowed to recount their experiences in person, their testimony is
frequently disregarded or questioned.
The
customs of village exogamy and patri-local post-marital residence results in
the majority of married women residing in their husbands’ home villages,
particularly in northern India, thereby lacking nearby natal relatives for
support in times of need. In contrast, husbands benefit from living among their
own close relatives and long-term acquaintances, who are naturally inclined to
support them in the case of marital disputes rather than their wives. Moreover,
men who preside over such councils tend to share their society's assumptions
about the appropriate roles of spouses in marriage, including male dominance
and female subservience. A woman seeking to leave a difficult marriage is
likely to find that those to whom she has brought her grievances are deeply
committed to this paradigm and the notion of marriage as an insoluble bond (or
one that only the husband has the prerogative to dissolve). They take for
granted the wife's obligation to uncomplainingly cohabit with and cater to the
husband's needs, regardless of his treatment of her. Communities that generally
allow divorce without significant stigma and possess established procedures for
terminating a marriage typically require the departing spouse, her lover, or
her natal family to compensate the abandoned spouse financially or through other
means. Examples of such communities include low-caste, nomadic, and 'tribal'
populations (Holden, 2008; Hayden, 1999). Although these informal
dispute-resolution mechanisms lack state-sanctioned authority to enforce their
rulings or ensure adherence to the settlements they broker, their members are
usually drawn from the most influential and affluent individuals in their
respective castes, communities, or religious groups. These individuals possess
social influence, the capacity to issue threats, and the potential to employ
physical violence to compel compliance from the disputing parties.
Alternative
dispute settlement venues designed specifically for women
It
is not unexpected that feminist activists would criticize not only the formal
judicial system of the state but also these types of 'customary' quasi-courts
for their inability to provide justice to women who have experienced abuse at
the hands of their husbands and/or in-laws. As a result of pressure from
women's organizations, various government agencies established alternative
dispute resolution bodies during the late 1980s to specifically address women's
needs. Although these bodies were funded by the government, they were not
intended to be the official arms of the judiciary but rather a means of settling
marital and other family disputes through mutual agreement between the parties,
thereby avoiding the necessity for litigation. One of the earliest initiatives
of this kind involved setting up special women's 'cells' within police
stations. Female police officers or social workers are assigned to deal with
complaints made by women regarding dowry harassment, domestic violence,
abandonment, rape, incest, and other similar issues. Women's Counseling Centers
were also established in conjunction with these police stations, with
counselors assigned to a small two-room office located just inside the outer
gate of the police station. Women referred to the counselor by the police would
first visit her for a private consultation and then invite the husband or other
family members to visit her office the following week. Both the wife and other
relatives from both parties frequently attended these sessions, during which
the counselor questioned the man about his spouse's accusations and inquired
about his willingness to take steps to enhance their relationship. On such
occasions, discussions among the present often intensify. The counselor's
objective, which was not always accomplished, was to reach a compromise,
whereby each party agreed to modify certain behaviors to facilitate
reconciliation and preserve the marriage.
All-woman
police stations
During
this period, a number of independent women's police stations were established
in several major urban areas and staffed entirely by female law enforcement
officers. These facilities occasionally employ or enlist the services of
skilled professionals, such as psychologists, to provide counseling services to
female clients. In other instances, female police officers themselves assumed
the responsibility of offering counseling.
Women’s
lok adalats
In
the past 30 years, various state governments have established women’s Lok
Adalats. One of these, initiated in Hyderabad in 2001, was sponsored jointly by
the Andhra Pradesh Women's Commission and the A.P.. Legal Service Authority. At
that time, the adalat comprised two judges - a retired female lawyer/public
prosecutor and a retired male social worker - who convened once a month to hear
cases referred to by the parent agencies. Most of the women who appeared before
they sought a divorce or maintenance order (under Section 125 of the CrPC) or
had filed charges of dowry harassment or cruelty against their husbands under
Section 498A of the IPC. The female judge of this Women's Lok Adalat stated
that their objective was to "reconcile" couples. For a case to be
heard by this 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, in especially complex situations, might require
several sessions to resolve. Once the panel reached a decision, there was no
avenue of appeal. Should either the party be dissatisfied or fail to comply
with the judgment, they would have to reinitiate their case in a conventional
court.
All-woman
peer-led courts
Women-led
peer courts are primarily designed to serve the economically disadvantaged, but
are open to and occasionally receive complaints from middle-class individuals.
These courts are generally overseen by non-governmental organizations (NGOs)
that focus on women's welfare and empowerment, although some are
government-supported or run directly by a government agency. Their leaders are
generally well-educated women from middle- or upper-class and caste
backgrounds, while local women from similar socioeconomic backgrounds serve as
mediators. These mediators may have limited or no education, but undergo
feminist consciousness-raising, receive training in the specific NGO's dispute
resolution philosophy, and learn the relevant legislation before taking on
their responsibilities.
The
reasoning behind selecting women as mediators lies in the belief that for a
distressed woman to express their grievances effectively, she must be provided
with a setting in which she can directly accuse and confront those who have
caused her harm without feeling inferior, embarrassed, frightened, or
powerless. It is essential that she can explain her problems in her own words
to women who share her cultural and social context, have similar assumptions
about right and wrong behavior, and understand her predicament not only
intellectually but also through personal experience. Peer mediators, who are
familiar with women’s circumstances, are better equipped than educated
middle-class men or women, regardless of their training and intentions, to help
her find a solution that is both culturally appropriate and practical, whether
it is a mutually acceptable compromise or a suggestion for escaping the
situation altogether and begin life anew.
Typically,
all-woman courts convene on a regular basis at a predetermined time and
location each week within the community they serve. These sessions are often
conducted in a group setting, rather than on an individual basis. While one
case is being discussed and addressed, other individuals waiting to be called
upon are present in the same room, actively listening to, and occasionally
participating in the lively debates that ensue. In accordance with the
practices of civil courts, peer mediators maintain a register that includes the
numbering and dating of cases, as well as separate files for each case. These
files contain information on any advice provided to the client during previous
meetings; details of decisions, agreements, or settlements reached; and
follow-up reports on visits to the client's home. Because most NGOs charge a
nominal fee for hearing a case, the amounts paid are also recorded in each
client's file.
When
a woman seeks to file a complaint against a husband or other family member, she
is generally asked to provide the latter's contact information, including their
address. Following this, an official letter is typically sent or a phone call
is made to the husband's mobile phone, summoning him to attend a meeting within
a week or two to present his perspective on the matter and discuss potential
solutions. After multiple sessions, if the mediators were successful, the
couple was assisted in drafting an agreement signed by both parties and other
family members. If mediators are unable to reconcile the couple through these
means, they may resort to alternative solutions, such as accompanying the woman
to the police station to file a complaint or to a civil court to file for
divorce or maintenance.
They
will likely seek out a compassionate female attorney who is willing to provide
services without charge. Unfortunately, female legal practitioners are scarce,
even in large cities, and not all opt to or can afford to waive their fees for
an indigent client. Female attorneys are even scarcer in small towns and rural
areas. For these and other reasons, if an all-woman court is unable to find a
suitable solution to a poor client's problems, the option of seeking relief
from the state may not be readily available. There are currently hundreds, if
not thousands, of all-women courts operating in villages and urban areas across
India. Notably, these courts are not modeled on any formal state judicial body,
but rather on traditional male-dominated dispute resolution forums such as
village, tribal, clan, or caste panchayats, as mentioned above. An all-woman
court that has gained considerable media attention is the "women's
jama'at," which was established in 2003 by Daud Sharifa Khanam, the
founder of the STEPS Women's Development Organization in Pudukottai, Tamil
Nadu. This court is modeled after local male-run mosque committees (jama'at)
and primarily serves, though not exclusively, Muslim women. Sharifa Khanam
created the women's community center in 1991, and upon observing the influx of
battered women seeking assistance, she recognized the necessity for a more
female-centered and woman-friendly approach to resolving marital issues.
Traditionally, such disputes were referred to exclusively as male jamaats
(mosque committees), which led to the establishment of the women's jama'at as
an alternative. Another similar body that has been mentioned in the press but
about whose actual operation little is known is the mahila adalat, which was
first convened in 2005 by the newly inaugurated All-India Muslim Women's
Personal Law Board in Lucknow. At its inaugural session, the mahila adalat
reported 166 women's complaints regarding unilateral divorce, dowry harassment,
and other marital issues.
Action
India’s mahila panchayats
Action
India (AI), a non-governmental organization based in Delhi, receives
significant funding from foreign sources for its all-women court initiative
(Sekhon 1999, 39). Initially established as a voluntary welfare project in
resettlement colonies created during Prime Minister Indira Gandhi's Emergency
(1975-77) to house squatters displaced from public lands, AI's female members
began organizing women at the community level in 1979. Influenced by India's
growing women's movement, these middle-class women viewed themselves as
facilitators for autonomous women's groups called sabla mahila sanghs, which
aimed to promote women's welfare and empowerment within their neighborhoods
(Sekhon 1999, 28-29). By the 1990s, local women regularly brought complaints of
domestic abuse to the attention of neighborhood women's associations. In
response, AI launched a program in 1992 to address the issues of women and the
law, which included the establishment of all-woman conflict-resolution bodies
known as mahila panchayats. Today, AI operates its own panchayats in the same
localities and is connected to a network of 84 all-woman courts run by other
Delhi NGOs, whose members are trained and supported through funding from the
Delhi Commission for Women, a municipal government entity.
According
to the information available on the AI website, a total of 6756 cases were reportedly
handled by the panchayats within this network between September 2004 and
November 2009. Of these, 5720 were reported to have been successfully resolved.
However, the criteria used to determine the success of these procedures were
not specified. My interpretation of the term "solved" is that the
mediators drafted and had the parties sign settlement agreements. It is unclear
whether all of these couples were permanently reconciled and were now living
happily. It is worth noting that these nari adalats and certain all-woman
courts run by other women's organizations make an effort to regularly follow up
with their clients for a period of time through monthly home visits. However,
it was not feasible for them to continue this practice indefinitely for every
couple. If no new signs of difficulty are detected after a few months, it may
be interpreted as a successful outcome of their interventions.
The
programme, as stated on its website, has several positive outcomes for female
victims of domestic violence. These outcomes include empowerment, the
realization that they are not alone in their suffering, the ability to
articulate their problems without feeling guilty or like a personal failure,
improved decision-making skills, and higher levels of self-esteem and
self-confidence (Action India, 2009).
Nari
adalats sponsored by Mahila Samakhya
A
broader and more extensive system of all-female courts (often referred to as
nari adalat, mahila manch, or nyaya samiti) operates with the backing of state
governments in several Indian states. It traced its roots back to the
mid-1990s, when it was established in several districts of Gujarat, Karnataka,
and Uttar Pradesh as a collaboration between an NGO and the government. This
initiative emerged from a women's confederation known as Mahila Samakhya, which
was established in 1989 by the Ministry of Human Resource Development of the
Government of India. Mahila Samakhya initially focused on establishing village
women's groups (mahila sangh) and equipping them with the necessary skills to
advocate for their own empowerment. Subsequently, after becoming aware of the
prevalence and severity of domestic violence in rural areas, the organization
launched a program to establish all-female courts. These courts convene at
predetermined dates and locations, typically in government buildings, where
women from neighboring villages present their marital and family related
grievances. Most petitioners have faced domestic violence related to concerns
such as dowry requests, the inability to bear sons, suspicions of infidelity,
the husband's involvement with other women, and his addiction to drugs or
alcohol, among other issues.
Upon
receiving a complaint, the adalat summons the relevant parties to appear at a
later date, at which point negotiations commence. The organization firmly
believes in the value of community support in resolving marital disputes;
therefore, all proceedings are conducted in an open and public forum. Local
women's groups participate in the process, collecting relevant facts and
generating opinions in favor of the victim. These groups also monitor the
adalat's decision and provide critical social pressure to ensure that violators
of women's rights comply with the ruling (Bhatla and Rajan, 2003, p.1660). The
adalat relies on the social pressure exerted by lay participants to enforce its
decisions against those who violate women's rights, much like the traditional
male-run panchayats. Shaming the perpetrator in public and subjecting him to
scrutiny is believed to motivate him to change his behavior (Iyengar 2007, 19).
These courts use their knowledge of local customs, practices, and social
networks to gather evidence and negotiate their agreements. They also generate
social opinions against the offender, and sometimes resort to threats involving
the legal system as a means of intimidation. However, the adalat's core
understanding of gender justice is deeply rooted in maintaining the
complainant’s home and family. This constraint limits the types of remedies
that the adalat can offer to abused women seeking assistance.
Women's
courts are clearly a form of alternative dispute resolution forum. However,
unlike government-established tribunals under the Arbitration Act, these
forums' decisions are not officially recognized by the state-sponsored judicial
system, nor do the authority of the state support them. Despite frequently
employing quasi-judicial rhetoric when discussing their objectives and
operating methods, and often replicating judicial procedures and record-keeping
at their hearings, their role in relation to the state is peripheral at best,
and their goals only partially overlap with those of the formal justice
delivery system, as represented by the police and the courts. This is true even
for women's courts, such as those operated by MS, which began as joint
state/NGO initiatives and continued to be state-sponsored (or at least
partially so), receiving government funding, and operating under the auspices
of official state agencies.
A
crucial distinction between these bodies and state courts is that the former's
primary objective is not to ensure that women receive the rights to which they
are entitled under human rights principles or Indian law. Instead, their stated
goal is to alleviate the hostility that has arisen between the parties involved
in a dispute, usually a married couple, and to find a compromise solution that
enables them to continue living together in a relative harmony. They offer an
alternative approach to resolving marital disputes, one that is outside of the
formal legal system, providing women with what they refer to as "social
justice" rather than the "legal justice" provided by state
courts. However, they acknowledge that women who seek assistance, including
those who agree to a compromise, are not precluded from seeking recourse in a
civil court or filing a formal complaint of cruelty with the police at a later
date, particularly if the agreement reached by the peer mediators proves to be
unworkable or unsustainable in the long run.
Although
those who support the establishment of all-women courts at times refer to the
process of arbitration of disputes, the term is not entirely accurate in this
context. Typically, arbitration involves a commitment by the parties to be
bound by the decision of a presiding judge or arbitrator. However, women who
appear before an all-women court do not make such a commitment. Instead, they
are offered the opportunity to enter into a voluntary written agreement or
contract with the party or parties they claim mistreating them. If either party
fails to fulfill their promised behavior changes, there is little that the peer
mediators can do beyond suggesting a further discussion or advising and
assisting the woman in filing a criminal charge against her husband or a suit
for divorce or maintenance in 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 relate to their
success in achieving their objectives and adhering to their feminist beliefs.
In contrast to a woman's experience when she appears 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, a woman who shares her story in an
all-woman court can be assured that her listeners will genuinely comprehend and
empathize with her situation. This is because these women, who come from
similar backgrounds, may have personally experienced similar situations in the
past or witnessed them in the lives of their own relatives or neighbors.
Furthermore, such a woman knows that when these mediators propose suggestions
for improving her situation, they will consider the specifics of her personal
circumstances and propose solutions that are suitable within the context of a
shared set of cultural norms and assumptions about how a woman's life ought to
be lived.
Indeed,
it is indisputable that all-woman courts provide certain advantages to women
who have limited access to any other form of redress when their married lives
become unbearable. At the very least, these courts offer a welcoming space that
is not available anywhere else, whether in the formal court system or in
traditional male-dominated community councils, where women can openly discuss their
suffering without shame and hear suggestions from others on how to alleviate
it. However, it would be inaccurate to equate the solutions offered by these
courts with the type of justice that the law is intended to deliver–at least in
an ideal world. The meaning of justice is subjective and can vary depending on
one's perspective. Nonetheless, it is evident that there is a significant gap
between the Indian judiciary, the international human rights movement, and
advocates of all-women courts regarding the nature of justice in this context.
