A writer by choice, a lawyer by profession, an alumni of the National Law School Delhi, Ishanee Sharma practices in the Delhi High Court and is a counsel for the state of Uttar Pradesh in the Supreme Court of India. At a young age, Ishanee has founded the rapidly growing law firm, Ishanee Sharma Law Offices. Moreover, Times Power Icons 2019, powered by Times of India honoured her with Rising Star 2019 award for her excellent work in the legal field.
Ishanee often advocates against unipolarity and bipolarity. She sincerely believes that responsibility and accountability should be evenly distributed among the various levels of administration. Security and legal enforcement are as accountable for societal harmony as each citizen of India. Freedom comes with responsibility, and her idea of a peacefully coexisting yet diverse society is only achievable when each citizen takes responsibility for their actions.
“I feel I will not do justice to my profession if my services don’t reach those in need. Access and affordability should not be a concern. So, I see a worthy case that needs to be fought – anything that appeals to me – I take it up, even if pro bono,” she told The CSR Journal in an exclusive interview where she discussed the legal recourse for women in India, child rights and other issues of concern. Excerpts:
Q 1: How supportive is the Indian legal system towards women’s rights?
Rightly did Swami Vivekanand say, ‘Just as a bird cannot fly with one wing only, a Nation cannot march forward if the women are left behind.’ Men and women are the two holes of a perfect whole. Strength is borne of their union their separation results in weakness. Each has what the other does not have. Each completes the other, and is completed by other. Etymologically, the word ‘woman’ means half of man. The relation of the male and female is very well illustrated in our Nyaya Darshan by the analogy of mind and matter, which means that man and woman are closely associated with each other, as the soul and body. Therefore women ought to be respected.
There is no doubt that we are in the midst of a great revolution. The evidence is everywhere; the voice of women is increasingly heard in Parliament, courts and in the streets. While women in the West had to fight for over a century to get some of their basic rights, like the right to vote, the Constitution of India gave women equal rights with men from the beginning. Unfortunately, women in this country are mostly unaware of their rights because of illiteracy and the oppressive tradition.
Q 2: Which causes are you most passionate about?
Whereas the legal system is concerned, access to Justice, the backlog of cases, and delay in delivery of justice.
There are 2.84 crore cases pending in the subordinate courts, the backlog clogging the High Courts and Supreme Court is 43 lakh and 57,987 cases, respectively. The numbers are increasing, leading to India having the largest number of people who are under trial, and they are in jail without being proven guilty.
On the humanitarian front, one needs to fight for human rights and against gender-based violence.
Violence as we talk of it now isn’t limited to physical violence. Its mental counterpart is as heinous. Women struggle for their right to live; think dowry, and domestic violence. Or repeated episodes of cruelty under the garb of marriage. The list is endless – the girl child is taught to smile and bear, to work chores, even the food distribution in uneven between genders. Economic independence helps to a certain extent, but not totally. So, we need to stand up for all these women around us. The gender roles have to be redefined.
Q 3: Could you tell us about how you’re contributing to these causes?
I feel I will not do justice to my profession if my services don’t reach those in need. Access and affordability should not be a concern. So, I see a worthy case that needs to be fought – anything that appeals to me – I take it up, even if pro bono.
Q 4: What recourse do battered women or those who have suffered domestic abuse have in the judicial system?
Domestic violence and child abuse perpetuate in multiple forms including but not limiting to barbarity, slandering, psychical, carnal, economical etc. These clandestine crimes are prevalent amongst all the sections of our society. Further, the recent impact of the abrupt elevation of these cases is indeed momentous and wide-ranging; initially affecting the discreet units of our society but eventually elongating to our civilisation in conglomeration.
Protection of women and child rights:
Our constitution under article 39(a) & (f) envisages & directs the state to formulate sufficing policies towards securing the women & children. It further obtrudes a duty upon the state to protect the children & youth against exploitation and against moral and material abandonment.
Pursuant to the directions issued under our constitution, the parliament has enacted a few specific laws to protect the dignity & valuable rights of women & children against domestic violence & abuse in India.
Rights and remedies available in cases of domestic violence:
The most prominent statue inter alia for curbing the menace of domestic violence in India is Protection of Women from Domestic Violence Act, 2005 as elucidated hereinafter.
In the year 2005, with a view to offset the erstwhile lacunas in the ordinary penal legislations, our parliament introduced Protection of Women from Domestic Violence Act, 2005. The aim of this legislation was to provide an adequate, speedy time bound remedy to the women in cases of domestic violence.
Under section 12 of the DV Act, a woman can file a criminal complaint against the perpetrator in the Mahila Court complex before a magistrate, which shall have to conclusively adjudicate the matter within a fixed period of 60 days.
The DV Act provides a number of reliefs to the women including grant of monetary relief (section 20), residence (section 17 & 19), protection (Section 18), assistance of welfare experts (Section 15), counseling (section 14) etc.
DV Act is a tailor-made legislation for availing all the necessary remedies to a woman victim under one roof without maundering in purports of numerous statutes.
Q 5: Would you say it is easier for an Indian woman to get a divorce if she is in a bad marriage?
In case of an unhealthy relationship, the victim should consult a trusted professional. With their help, recognizing the warning signs at early stages would be simpler. Getting out of the relationship, easier. At times leaving an abusive relationship can be dangerous, so it’s very important that they have a safety plan. And be in contact with police or a lawyer, counsellor or anyone who can be of help.
Q 6. What advice would you give to someone like this who does not have the financial backing to fight it out in court?
My advice to all those aggrieved women belonging to a financially weak background would be to connect with the legal aid services authority, functioning at the district, state and national levels. Connecting with NGOs can also be helpful in these matters.
I would further like to point out here that any such aggrieved woman should not lose hope and should stay determined to voice the abuse faced by her as there are many women as well as male counsels who are willing to fight such cases on a pro bono basis and serve the ends of justice.
Furthermore, a wife has the legal right to live in the matrimonial house, even after the husband dies, and is entitled to Maintenance under Section125 of the CRPC. Even if the house is not owned by the husband, belongs to his parents, or is a rented apartment. In case of separation, she can stay at the marital house until an alternative is arranged for her or she goes to her parental house. There isn’t any directive in the Hindu Marriage Act (HMA), 1955 that a married woman cannot stay at her parental house. She can lawfully stay, if and when she wants to.
Whereas property rights are concerned, a woman has equal legal rights to inherit her husband’s property as other heirs. She can inherit it only if the husband hasn’t prepared a will or hasn’t excluded her from the will. If a husband remarries without dissolving the first marriage, the rights to the property still belong to the first wife.
A woman can and should report domestic violence under the Protection of Women Under Domestic Violence Act (D.V. Act), 2005. This act criminalises physical, emotional, sexual, economical and other forms of ill-treatment. She can claim protection, maintenance, custody, compensation and continue to live in the same house. The amount of maintenance doesn’t include Stree Dhan and is set up by the court on the basis of the husband’s financial and living status (includes up to 25 percent of it).
The Medical Termination of Pregnancy Act, 1971 gives a woman full autonomy to abort a child without the permission of the husband. The upper limit of getting a child aborted has been raised to 24 weeks.
The Guardian and Wards Act of 1890 gives equal custodial rights and duties to both the parents. However, if the child is below five years of age, the mother has superior rights. A woman has the right to take the child along with her while leaving the marital house without any court order. A woman can claim the custody of her children after divorce or separation, regardless of whether she is employed or unemployed. She can always claim maintenance from her husband.
Q 7: What are the laws regarding child adoption by single women?
According to the Juvenile Justice Act that was amended in 2006, adoption means, “The process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached with the relationship.”
– In India all adoption issues are handled by the Central Adoption Resource Authority (CARA), an autonomous body governed by the Ministry of Women & Child Development.
– A minimum age difference of 21 years between the single mother and the adopted child is required if they’re of opposite sexes.
– A single parent should be between 30-45 years in age if she wishes to adopt a child in the age group of 0-3 years. The upper limit for a child older than 3 years is 50.
– The single parent should have additional family support.
– According to the rules the adoptive parent has to be both medically fit and financially settled.
– According to the Hindu Adoption and Maintenance Act of 1956 Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to adopt not more than one child of a particular sex.
– For foreigners, NRIs and those Indian nationals who are Muslims, Parsis, Christians or Jews, according to the Guardian and Wards Act of 1890, the parent only acts as a guardian till the child attains the age of 18.
– One can adopt a child from recognised private placement agencies, ShishuGrehas or State Adoption Cells
Q 8: Gender equality is Sustainable Development Goal 5 (SDG 5). What are your thoughts on achieving SDG 5 in India?
Gender equality by 2030 requires urgent action to eliminate the many root causes of discrimination that still curtail women’s rights in private and public spheres. For example, discriminatory laws need to change and legislation adopted to proactively advance equality. Yet 49 countries still lack laws protecting women from domestic violence, while 39 bar equal inheritance rights for daughters and sons. Eliminating gender-based violence is a priority, given that this is one of the most pervasive human rights violations in the world today.
Based on data from 87 countries, 1 in 5 women and girls under the age of 50 will have experienced physical and/or sexual violence by an intimate partner within the last 12 months. Harmful practices, such as child marriage, steal the childhood of 15 million girls under age 18 every year.
But the irony is that in a ‘Shakti Poojak’ society like India, where all forms of power and all the manifestations of energy are identified as a female being. Our biggest struggle today is female emancipation, which the United Nation is reiterating to us.
Research all around the world has reiterated the fact that females are a stronger gender. We tend to live more, have better immune systems and are lesser prone to cardiovascular illnesses. So much so, the female premature baby has better chances of survival than a male baby in the exact same circumstances. If you think of it, this might be the reason for the longing for a male child. The principle of ‘survival of the fittest’ has been favouring the female embryo. And hence the numbers could initially have been skewed. This lopsided ratio might have been the reason for longing which finally became preference for the male child.
I feel there is an innate connection of these empirical observations that have come to the fore today to the fact that strength, dynamic energy of creation, maintenance and destruction was referred to as ‘Shakti’, since the Vedic era.
In the Hindu tradition, women are considered as manifestations of Shakti, who involves both creation and destruction. Women are considered as the embodiment of forgiveness, compassion, and tolerance when needed, but they also turn destructive whenever it comes to protecting their families or destroying evil. We have goddesses manifest to the benevolent form of Shakti like our gentle Goddess Uma, and we have also seen the terrifying force which destroys evil, our fearless Goddess Kali. We have also seen the brave warrior Goddess Durga who has the potential to conquer all forces and in fact destabilize our entire universe. Our deities are all powerful beings and they aren’t second fiddle to male gods.
Goddesses symbolize various aspects of power and whenever we need anything, our general tendencies are to reach out to Devi-Maa. So why do we forget our own feminist heroes and reach out for a culture that doesn’t blend in with ours?