Domestic Violence and Gender: Legal Interpretations By India’s Supreme Court

Laws are an important site for examining discursive struggles regarding gender inequality, both with respect to formal and substantive equality. Using archival data comprising decisions of India’s Supreme Court on 217 domestic violence cases for the period 1995-2014, we show the distressing statistic where, in 73% of the cases, the woman had already died even before the domestic violence case had been filed. Favorability in verdicts from the court also varied based on whether the woman is deceased or alive. We explain this variation by examining the court’s interpretation of gender as they adjudicate domestic violence cases. We demonstrate how the content of domestic violence laws influence the judicial interpretation of gender to develop a ‘sameness’ or ‘corrective’ approach. A formal equality approach assumes women to be naturally different from men, resulting in the justification of differential treatment of women. Thus, judges may normalize or understate emotional violence such as control and intimidation as they may not recognize structural aspects of gender inequality in families that allow for such violence to happen. Second, we find that the content of the law can be influential in developing a corrective approach among judges. Certain laws encourage judges to take a corrective approach and look beyond the need for typical forms of evidence that is difficult to provide in the case of domestic violence crimes that occur in private spaces. However, even when the content of the law upholds substantive equality, the judiciary may not take a corrective approach, if the woman does not conform to the ‘good victim’ narrative, resulting in less favorable outcomes for living women who approach the court for justice. Thus, even though the law has the potential to make some positive dents towards substantive equality, the judiciary may still be influenced by assumptions of gender difference.