SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

unreasonable and arbitrary. Further the definition of “domestic relationship” was
objectionable as it placed persons in relationships akin to marriage on par with those within
marriage – this derogates from the sanctity of marriage and such relationships should not be
treated equally in the eyes of the law. On the first ground the court held that a statute does not
fail the constitutional test required by the equality guarantee if it is based on creating an
intelligible differentia between categories of persons, which bears a nexus with the objective
sought to be achieved by the law.
The court held that in the present case the difference was made between persons on the basis
of sex i.e. male and female, which was justified since women bore the overwhelming brunt of
domestic violence and the Act sought to remedy this by justifiably protecting women from
this vice. On the issue of common-law marriages the court found “no reason why equal
treatment should not be accorded to wife as well as woman who has been living with a man
as his common-law wife or even as a mistress. Like treatment to both does not, in any
manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a
‘live-in relationship’ is invariably initiated and perpetuated by the male.” Although coming to
an admirable conclusion in recognizing relationships outside of marriage, the assumptions on
which the court arrived at its ruling are questionable.
The key Indian Supreme Court judgment in relation to the Indian domestic violence law has
demonstrated a narrow interpretation of the term “shared household” as is evident in the case
of SR Batra and another v. Taruna Batra. 387 In this case the aggrieved person claimed the
right to reside in a house owned by her husband’s mother where she had resided with her
husband in the past. Failing to capture the broad scope of the definition of “shared
household” under the Act, which stated that it would include one in which the aggrieved
person and respondent live or have at any stage lived in a domestic relationship irrespective
of ownership or any other interest, the court held that a shared household could only be one
which belongs to or is taken on rent by the husband or one which belongs to the joint family
of which the husband is a part. Such an interpretation is at odds with the clear words of the
section and significantly defeats the purpose of the legislation.
Thailand introduced the Act on Protection of Domestic Violence Victims B.E. 2550 388 in
2007 and defines domestic violence, as “any conduct performed with the intention to inflict
harm on a family member’s physical, mental or health condition, or with the intention that is
likely to cause harm on a family member’s physical, mental or health condition, or any use of
coercion or unethical domination which compels a family member to commit, omit or accept
any unlawful act, except for an act committed through negligence.” 389
The Thai Act is gender neutral in its application with a family member defined as, “a spouse,
former spouse, person who lives and cohabits, or used to live and cohabit together as
husband and wife without registering marriage, legitimate child, adopted child, family
member, including any dependent person who has to live in the same household.” 390
387 2007 (3) SCC 169
388 The authors are using the only available English translation of this law which is available on the website of
the United Nations High Commissioner for Refugees (UNHCR) at
http://www.unhcr.org/refworld/category,LEGAL,,,THA,4a5460692,0.html
389 Article 3, Act on Protection of Domestic Violence Victims B.E. 2550 (Thailand)
390 Ibid.
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