(2006) JLP 52: 41-75
The Indian State’s management of divorce and domestic violence, driven by disparate forces such as colonial and post-colonial discourses of equity and modernity and demands refracted through social movements, as well as customary notions of kinship and equity, is enacted through a number of potentially contradictory fora. These include proceedings for civil and criminal remedies and formal and informal mediation.
This paper focuses on Section 498 of the Indian Penal Code which legislates against “torture” and has been the primary criminal law regarding domestic violence. It is a criminal provision of legendary notoriety, believed variously to be emblematic of the crux of feminist dystopia or of toothless symbolic legislation. Analyses of a variety of legal settings such as Family Courts, Women’s Grievance Cells and Mediation Boards indicate that the law opens up possibilities for new legal strategies and subjectivities. But they show also that it is mired in difficult contradictions with post-divorce maintenance laws and hence ineffective in execution. Existent criminal provisions may be used to leverage socioeconomic needs, but simultaneously litigants construct violation differently from the constructions of legal categories, and seek complex remedies. In the various fora both the slippages and the continuities between ‘relatively autonomous’ law enforcement sites, and strategies learnt by litigants negotiating these multiple sites are revealed. Analyzing the discourse of litigants, judges, police and mediators, this paper delineates the significance of domestic violence in the political economy of marriage: the tensions between looking to marriage for economic sustenance and undoing marriage through invocations of violence, the salience of social class in claiming the harm of violence, and the radical potential of laws of gender justice that may be contrarily deployed to secure dominant notions of domestic order.