Victim of domestic violence? Know your rights with advocate Ishika Tolani

With so much conversation surrounding gender equality across the world, it is time we examined the  ground reality and assess if women are in fact aware of some of their basic rights. Many Indian women are victims of domestic violence and do not even know how to handle the brutality they face or whom to reach out to for legal help.

Meet, 37-year-old  Ishika Tolani, a reputed lawyer with close to a decade of experience in the field of family law. Based in Mumbai, Ishika’s sharp legal acumen has earned her a niche clientele and several accolades. While she practises mainly in family courts and sessions courts of Mumbai and Thane, she is also well-known in the family courts of Delhi, Aurangabad and Pune.

Ishika has also been recognised for accepting women’s cases pro bono (at no fee) which she undertakes on a case-by-case basis depending on the financial status and background of the victim.

On International Women’s Day, Ishika provides her inputs and advice on common questions related to domestic violence and women’s empowerment.

Note: Procedural legal advise as per the Indian Penal Code has been shared at the end of this interview.

In your experience, what seems to be the main reason for domestic violence?

Some people with very traditional beliefs may think they have the right to control their partner and that women aren’t equal to men. People may have learned this behaviour from growing up in a household where domestic violence was accepted as a normal part of being raised in their family.

Men want to control their partner because of low self-esteem, extreme jealousy, difficulties in regulating anger and other strong emotions, or when they feel inferior to their partner in terms of education and socioeconomic backgrounds. Disparity in education, income incompatibility, suspicious nature of life partners, ego, intimacy issues, and extramarital affairs are some of the main reasons for subjecting someone to domestic violence.

Who can file a case of domestic violence?

Any  woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. This violence has a tendency to explode in various forms such as physical, sexual or emotional behind closed doors of homes all across our country.

What is the nature of compensation a woman/man can claim in such cases?

The Magistrate may pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. Punishment up to 3 years and a fine is also imposed.

What are the rights of a woman with regards to her children in a cases of domestic violence?
Courts usually consider the welfare and wellbeing of a child before passing an order pertaining to custody of the children.

How often do women come forward to report on marital rape? Is it ample ground for divorce?
Very few women come forward. Marital rape is a common but under-reported crime. Marital rape is  difficult to prove. Because of the associated stigma of rape trials, it is unlikely that women will elect to undergo such an experience out of sheer spite. A marriage in which a husband rapes his wife is already destroyed. The law should not encourage forced cohabitation and should not protect a rapist  husband. It is not ample ground for divorce.

What needs to change in the Indian society which can alleviate atrocities against women?
Every woman should be educated on the root cause of violence. Hence every woman will raise her voice against violence. Subject on woman and children, self defence should be introduced in curricula in school for students. We need to toughen laws and speed up the prosecution of rapists and perpetrators of crime against women.

In a world where we speak of equality of genders, why do you think women are still referred to as the weaker sex? 
Women are not the same as men so there cannot be equality. Men and woman have different physical capabilities and differences which means equality is not possible. Strength is one of the few ways in which men, on average, exceed the abilities of women – but if that is changed, it would in fact be a continuation of the way that male identity and ‘traditional’ masculinity is already being challenged in the real world. In the past 50 years, women have become more independent and, in many cases, have overtaken men in earnings, achievements and success.

What inspires you to undertake cases pro bono? How do you differentiate between a genuine case and false cases, where often rights are misused?
Women need to learn to get out and live a dignified life. When a woman is deprived of financial support by her husband she will quietly take the physical and emotional abuse and be battered by her family behind closed doors. A woman who is not independent finds it difficult to fight the litigation, as compared to men who have the money to hire the best advocates. Through experience I can differentiate between genuine and false cases. Rights are often misused especially while filing a police complaint registered under sec 498a of monetary reliefs, where women often try to hide their income.

What are the repercussion of filing a false case, be it a man or a woman?
Courts have the power to levy costs on the man or woman who has filed a false case. Either party can file defamation case.

What is the success rate of genuine cases being served justice and typically how long does it take for law to take it course?
Matrimonial cases are settled in courts on the grounds on consent terms agreed by both parties. Usually it takes around 3 to 4 years.

Can you shed some light on why the #MeToo Movement seems to be waning? And why are the MeToo villains still flourishing?
This movement empowered women to form a community and help each other talk about the bitter truth about sexual abuse in the world . However, the movement does not check the facts, which could lead to false rape accusations. Many men have filed defamation suits against woman filing cases against them for sexual harassment as there is no evidence against them.

What is your overall advise to any woman who is distressed by domestic violence?
‘You don’t have to put up with it’, ‘get help’, ‘leave’ and ‘there is a better life out there’. You are worth much more. If someone is making your life hell and miserable, don’t put up with it, there is no excuse at all and you will be happier. ‘Whatever you’re getting out to it’s not as bad as what you’re in’
Look up telephone numbers for shelters, social services, attorneys, counsellors, or support groups.

What is the best way for victims to reach out to you?
Email communication at ishikatolani1982@gmail.com 

Ishika primarily practices family disputes like divorce, child custody, domestic violence and dowry, but she is also adept at cases related to wills, probates, private complaints, breach of trust and cheque bouncing matters. She has advised several corporate clients in resolving employment related disputes and sexual harassment cases. Ishika also provides advisory services in several fields of matrimonial and civil cases and end to end drafting and vetting of various agreements and documents. She was enrolled with the Bar Council of Maharashtra in 2011.

Process for filing a case of Domestic Violence (DV)

Application Under Section 12 of the PWDV ACT 2005 is made to the Magistrate by  aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person for seeking one or more reliefs mentioned above. Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

The relief sought for under may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

The Magistrate shall Endeavour to dispose of every application made under sub-section  within a period of  sixty days from the date of its first hearing.

Service of notice. A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.

Basic rights of a woman facing domestic violence in a marriage as per the Indian Penal Code

Under Section 17 (Right to reside in the share household) Every woman in a domestic Relationship shall have the right to reside in a share household, whether or not she has any right, title or beneficial interest in the same.

U/S 18 (Protection Orders): Prohibiting the Respondent from committing any acts of domestic violence. Prohibiting the Respondent to enter the place of employment , school or any other frequently visited places ,communication in any form. Prohibition from alienating assets owned either jointly or singly, stridhan. Prohibition from causing violence to the dependants or relatives of the applicant.

U/S 19 (Residence Orders): Restraining the respondent disturbing the possession of the aggrieved person from the shared household, directing the respondent to remove himself from the shared household.

  • Restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
  • Restraining the respondent from alienating or disposing off the shared household or encumbering the same;
  • Restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
  • Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require .The Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
  • The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

U/s 20 (Monetary reliefs)

  • The Magistrate may direct the respondent to pay monetary relief
  • The loss of earnings;
  • The medical expenses;
  • The loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

U/s 21 (Custody orders) the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf .

U/s 22 (Compensation orders) -The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.