In India, the Covid19 crisis has made hyper-visible the fissures in our economic, caste-based, and gendered structures. As the dominant messaging became “stay home, stay safe,” it highlighted the fallibility of a crucial assumption: that homes are safe. For people with marginalized identities, homes and intimate spaces can often be sites of violence.

Termed the ‘shadow pandemic,’ domestic violence rates have surged as public spaces have emptied out, and mainstream media has amplified awareness campaigns about domestic violence. When we look for ways to address and alleviate this shadow pandemic, we inevitably turn to the law. So what happens when people don’t see their realities reflected in the law?

The Protection of Women from Domestic Violence Act, 2005, is as complex in its contradictions as a lot of other legislation in India. It has progressive elements, yet feminist lawyers have also criticized it for its narrow scope and poor implementation. The Act is also restrictive in the way that it situates intimate partner relationships by only extending protections to married partners and cohabiting partnerships. By narrowing the definition of intimate partners, the law compounds the stigmatization of non-cohabiting partnerships, making it even harder for survivors of non-cohabiting intimate partner violence to report.

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Nishma Jethwa, program director of Feminist Justice at One Future Collective, says that “many other jurisdictions do not have this restrictive definition, allowing for non-cohabiting partners to be afforded similar protections against domestic violence. For example, in the U.K., ‘any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse’ between intimate partners is considered domestic abuse. This approach recognises the fact that domestic violence is not limited to individuals who live together and focusses more on the intimate relationship, and the assumed trust therein, instead.” The United Nations ‘Handbook for Legislation on Violence Against Women’ recommends that, at a minimum, domestic violence legislation should apply to individuals that are in or have been in intimate relationships, including same sex and non-cohabiting relationships.

We live in a country in which love has always been deeply politicized, and restricted along lines of caste, class, religion and sexuality. Patriarchal morality – a morality that only grants legitimacy to relationships when they adhere to these norms – governs our social mores around intimacy. Unmarried couples, or couples that refuse to institutionalize their love, are regarded with skepticism, disapproval and sometimes, violence. Though the Act recognizes non-married cohabiting partners, it does not recognize the many couples who cannot live together.

Live-in relationships are still a privilege that many couples in India may not enjoy; some couples may not aspire to live together at all. Social norms, stemming from patriarchal principles of morality, already force many couples to invisible their relationships, driving behavior underground; hiding the existence of a relationship means denying it, even if there is violence present in it. This dual socio-legal erasure means that non-cohabiting survivors of intimate partner violence often don’t have informal or formal systems to turn to. Moreover, to exclude non-cohabiting relationships in the Act’s definition of domestic relationships is to implicitly endorse the way romantic relationships are defined under a misogynistic morality: that their social and legal sanction is premised on marital status or cohabitation.

One Future Collective also runs a free legal aid helpline, and Nishma said that, “a lot cases we get at the FemJustice Legal Helpline are from non-cohabiting partners. Sometimes the relationship has broken and the partner has either tried to harm them, been threatening them or been trying to blackmail them with photos or threats or exposure.” She said that they often advise clients in such incidents under the Information Technology Act or under the Indian Penal Code, though “It is more challenging when the relationship is not public in the first place and there is, understandably, a hesitation to make it such. This presents a challenge in terms of seeking justice for violations since we do not have robust confidentiality and victim protection measures in place at most levels.”

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This highlights another concern with excluding non-cohabiting partnerships – it denies the reality of how deeply virtual spaces permeate our constructions of intimacy. In the wake of Covid19, there is an acceleration of this reality. For instance, in an article about helplines set up in Assam, one of the managers of the women’s helpline said that 11 out of the 65 cyber-crime complaints they had logged so far had to do with blackmail, in which a partner threatens to leak intimate pictures if a request is unmet. Blackmail involving intimate pictures, and of exposing an illicit relationship is deeply tied to gendered notions of shame, honor, and purity. When this occurs in the context of an intimate partner relationship, because it rests on a complex matrix of power, gender, and coercion, it can be a form of intimate partner violence.

For those non-cohabiting survivors of intimate partner violence seeking judicial recourse, it is important to have one comprehensive legislation that addresses the violence they face, rather than having to cobble together a complaint under multiple legislation and the IPC. The law, in spite of its shortcomings, plays an important role in justice. The law not only empowers, but also provides agency and protection from harmful social norms. We must advocate for a more just legislation, because all survivors of intimate partner violence deserve to recognise themselves in the law, and to be able to benefit from it.

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