TITLE

SCOPE AND LIMITATION OF RESEARCH

SUBJECT

LEGAL METHOD

NAME OF FACULTY

Prof. SOMA BHATTARCHARYA

STUDENT

NAME:-MANSI MISHRA

ROLL NO.:- 19LLB053

TABLE OF CONTENTS
ACKNOWLEDGEMENT

SYNOPSIS

INTRODUCTION:-

Often when a problem is given for research, it is fairly general and open ended. For proper research,
the researcher needs to approach the problem in a particular manner. This narrowed approached is
termed as the scope of the research. The parameters and factors to which the researcher sticks all
throughout the researcher is known as the limitation of the researcher. The researcher has herein
has focused the project on PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE
ACT, 2005. The researcher would try explore it’s scope and limitation.

OBJECT OF THE STUDY:-

 To understand Domestic Violence and its type

 To know the difficulty involved in the concept
 To substantiate and elaborate the concept.

SCOPE OF THE STUDY:-

 The study is limited to the concepts of Domestic Violence cases in India.

SIGNIFICANCE OF THE STUDY:-

 The study helps us to understand the types of domestic violence.

LITERATURE REVIEW:-

 PRIMARY SOURCES:
scconline.com
heinonline.com
Protection of Women Against Domestic Violence Act, 2005

RESEARCH METHODOLOGY:-

 The study is based on the doctrinal method of research.

TYPES OF RESEARCH:-

 This Research is explanatory and descriptive Study.

RESEARCH QUESTION:-

 What is the scope and limitation of the Protection of Women Against Domestic Violence
Act, 2005?
  CHAPTERISATION:-

At the time of making of the Indian constitution, it was asserted by Hansa Jivraj Mehta,

“The Indian woman has been reduced to such a state of helplessness that she has become an easy
prey of those who wish to exploit the situation. In degrading women, man has degraded himself.
In raising her man will not only raise himself but rise the whole nation…. Women form one half
of the population of this country and therefore, men cannot go very far without the cooperation of
women. This ancient land cannot attain its rightful place, its honoured place in this world without
the cooperation of women.”
INTRODUCTION

Domestic violence is an extremely vicious and complex form of violence committed most often
within the four walls of house and within a particular deep rooted power dynamic and socio
economic structure which do not even allow the acknowledgement or recognition of the violence.
Domestic violence or family violence is a global problem.

The response to the phenomenon of domestic violence is a typical combination of effort between
law enforcement agencies , social service agencies , the courts and correction/ probation agencies.
Domestic violence is now being viewed as a public health problem of epidemic proportion all over
the world and many agency are working to fight against it . The phenomenon of domestic violence
is widely prevalent but has remained largely invisible in the public domain. Presently where a
woman is subjected to cruelty by her husband or her relatives is an offence under section 498A of
the Indian penal code. The civil law doesn't address this phenomenon in its entirety.

The victim's inability to access the law makes the legal remedies ineffective, and the four walls of
the so called home render the law incapable of reaching the victim which is even more tragic. All
these factors render the issue of domestic violence very different from other forms of violence,
because of the women's weak and vulnerable position inside there matrimonial home. It also
explores the myth that woman are subjected to harassment and violence on street and workplace
only and that the home is the safe heaven.

In the case of Loha Vs District Educational Officer, J. Vaidhynathan stated, ‘The notable flaw in
this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation
to teach a lesson to their male relative and will file false and frivolous cases.’ There are no legal
provision, no law to protect men against family violence. Reasons or motives for its misuse by
women can be: Money making or To cover up for some mistake or Guilt or Disliking husband or
in-law or Extra marital affair.

Rights of women: a constitutional perspective

The preamble of protection of women from domestic violence act 2005 envisages its objectives,it
provides for more effective protection of rights of women guaranteed under the constitution who
are victims of violence of any kind occuring within the family and for the matters connected
therewith or incidental thereto. Thus it requires making reference to the rights of women as
guranteed under the constitution of India. Part 3 of the constitution under fundamental rights,
provides for certain rights to all the people of India equally but the following are some the
important articles which contain special protection to women.
(A) Article 15 prohibits of discrimination on the grounds of religion race caste sex and place of
birth. The article further provides that nothing in this article shall prevent the state from making
any special provision of women and children.

(B) Article 16 equality of opportunity in matters of public employment

(C) Article 23 prohibition of traffic in human being and beggar and other forma of forced labour.
Hence the act 2005 in the context of the constitutional rights provides the following protections to
women namely

(a) protection from discrimination on the ground of sex.

(b) Protection in public employment

(c) Protection against trafficking and forced labour.

Contravention of any of the above constitutional rights in the context of the act amounts to
violation of the provisions of the act within the meaning thereof. It also amounts to domestic
violence attracting the respondent to criminal liability.

Violence against women as human rights violation an international theory

The convention on the elimination of all forms of discrimination against women, 1979 the Vienna
accord 1994 the Beijing declaration and platform for action of 1995 are some of the important
international responses for protection of women from violence and discrimination. In fact the
United Nations committee on the convention on the elimination of all forms of discrimination
against women had recommended as early as in 1989 that the state which is party to the said
convention should provide for the protection of women against violence of any kind especially
that occurring in the family. However violence against women as human right violation changes
perception of violence against women from private matter to one of public concern. The 1980s
saw the major transformation in the articulation of women’s grievances. The diverse machinery
set up at the international level for the promotion of human rights became available to women’s
right activists. This access to international institutions is an important development in the search
for equality. A revolution has taken place in the last two decade. Women rights have been
catapulted on to the human rights agenda with a speed and determination that has rarely been
matched in international law.

V.D. Bhanot vs. Savita Bhanot

WIDENING THE OF SCOPE OF DOMESTIC VIOLENCE ACT

Section 498A has become an extortion scam. The law is violative of section 14 and 15 as it
supports gender biasness.

Provisions Under the New Domestic Violence Law before the enactment of the Act, the term
‘domestic violence was defined narrowly to refer to only cruelty and harassment of wife, and
wife’s murder under section 498A and 304B of the IPC (Ray 2006). Continuous struggle by
women’s groups has changed the situation and ultimately Indian lawmakers have realized that
domestic violence mean not only violence related to dowry but several other forms of crimes.
PWDVA is a comprehensive law and it addresses all issues related to women in the domestic
sphere.

The Protection of Women from Domestic Violence Act, 2005 (PWDVA) has been added to the
existing laws in recent times. Although from the feminist’s point of view, the law’s treatment of
women in relation to men has not always been equal and fair, many stakeholders have hoped that
the new law would be constructive in providing relief to women from violence. Given that the law
has traditionally worked from a patriarchal perspective, attempts were made to draft the new law
from a new perspective within, however, the same framework.
The act has classified ‘domestic violence’ into four categories, namely a) physical, b) sexual, c)
verbal &emotional, and d) economic violence, and attempted to define such violence
comprehensively. The act has laid down stringent rules to prosecute a man for any type of violence
committed against women at home. Even though the new law is framed to protect women from
domestic violence committed by adult male ‘respondents’, an aggrieved wife may also ‘file a
complaint against relatives’ including female relatives of the husband. However, ‘no order under
clause (b) shall be passed against any women’ and remove her from the shared household. A victim
also has the right to simultaneously file her own complaint under section 498A of the IPC. For any
‘breach of protection order’ under section 18 of the Act, a man can be jailed for 1 year, or fined up
to Rupees 20,000. Under section 31 and 32 of the Act, such offence is cognizable and non-bailable.

The new Act goes beyond the 498 (A) of the IPC and extends protection to even female live-in
partners Significantly, the Domestic Violence Act did not limit protection against domestic
violence to marital relationships. The most splendid part about the current legislation is that it has
adapted itself with contemporary laws and therefore in contrast to previous domestic violence
legislation, the current Act covers “domestic relationships” which happen to include “all
relationships based on consanguinity, marriage, adoption and even relationships which were “in
the nature of marriage”. Henceforth the new legislation covers all women in abusive relationships,
regardless of whether the person responsible for is a spouse, domestic partner, or someone in a
live-in relationship..

It also protects unmarried women, siblings, and other women living with the alleged perpetrator.
This legislation for the first time introduced the concept of “shared household” that covered
women in Non-Matrimonial relationships. The term “shared household,” has been defined under
Section 2(s) of the act, may include a property of the joint family of which the male respondent is
merely one of several members.

The law empowers the court to stop any further acts of domestic violence on the woman or her
children. It also prescribes for giving possession of stridhan (property of the wifegiven by her
parent), jewelry, clothes etc., to woman and stops all transactions of any joint bank
accounts/lockers .Further, the act provides for the right of woman to live in her matrimonial or
shared household peacefully, her right to property in which she is residing, and stops an disposing
off the house without the permission of the court. Section 20(1) of the Domestic Violence Act
which empowers magistrates to grant monetary relief in favour of the aggrieved woman. This
provision ensures that women who file complaints under new statue are not chucked out of their
homes. Since it was seen that previously implementation of this new legislation, women were
chucked out of their marital houses after filling cases against their husbands or family or both. The
new legislation further empowers the magistrate to pass an order giving access of the house to any
woman who chucked out after filling a case

The Supreme Court has widened the scope of the Domestic Violence Act by ordering deletion of
the words “adult male" from it, paving the way for prosecution of women and even non-adults for
subjecting a woman relative to violence and harassment.

The apex court has ordered striking down of the two words from Section 2(q) of the Protection of
Women from Domestic Violence Act, 2005, which deals with respondents who can be sued and
prosecuted under the Act for harassing a married woman in her matrimonial home.

Referring to earlier verdicts, the apex court said “the microscopic difference between male and
female, adult and non-adult, regard being had to the object sought to be achieved by the 2005 Act,
is neither real or substantial, nor does it have any rational relation to the object of the legislation".
Limitation

A review of the performance of the old and new laws on domestic violence proves that legal
measures to curb domestic violence have serious limitations. They could neither guarantee any
reduction in the extent of such violence, nor could they expedite the justice delivery system in
India. Much remains to be done te nsure gender justice in a patriarchal society.

It is true that in a patriarchal society like ours, assertion of rights by women as well as increasing
participation of women in public life may also engender hostile responses from their male
counterparts in both public and private spheres.

Even after stringent measures provided

The act is argued to be highly inclined in favour of women and this has raised fear about its likely
misuse to harass the male relatives

there is reason to believe that some of the offences mentioned in the act cannot be proved. For
example, how can one furnish evidences regarding any ‘sexual violence’ being committed by a
husband? The acthas also been criticized for lack of clarity. ‘Insults’ and ‘jibes’ are mentioned in
the new act under ‘emotional violence’without providing any standard definition of the seterms.
Ambiguity in the law increases the apprehension of its misuse.

Mental and verbal abuses have the potential to be misinterpreted while causing grievous harm.
Quarrels and marital disputes cannot be defined as mental and verbal abuse. A significant portion
of quarrels and disputes have arisen following refusal of the husband to move to a separate house,
late working shifts either by wife or husband, gifts to be given to relatives, stay of relatives, dispute
over household responsibilities between mother-in-law, sister-in-law, mother, sister and brother.
Third, the new Act seeks to cover the female live-in partner also and thus it gives, though
indirectly, legitimacy to the practice of live together. One may argue that the practice of live
together does not in itself reflect ‘women’s liberation’ in the Indian context. It may rather promote
a culture of free sex and may make the position of women more vulnerable in a society that is not
known for quick justice. Finally, the most striking objection against the new law is that it targets
the male offenders. This objection is only partly valid as female relatives of a male offender may
also be booked under the Act though female offenders cannot be singled out for any act of domestic
violence on women (Lawyers Collective 2009).Our experience however proves that female
offenders are hardly booked under the PWDVA although there are a few instances of aggrieved
wife filing complaint against female relatives where the husband is the main accused. As the
‘spirit’ of the law is to protect the female members of a family, women offenders can at best be
warned by judges against any violation of the rights of the ‘aggrieved person’. Hence, this law will
be of no help to sort out several family-centered quarrels involving mainly the female offenders.

To leave matrimonial home and take shelter in parental home. In the Indian condition, if a victim
fails to garner such support in view of the poor economic conditions of the parents or other
relatives, she is left to the mercy of the abusive husband to continue a painful life. It is in this
context that PWDVA has failed to rescue the victims by implementing court orders or providing
quick justice to the victim. Lack of civil society actions should also be seen in the wider context
of prevailing social structure

In some of the instances, however, PWDVA is found to target male relatives even though the
offender is female. Filings of a few of such false cases however do not represent a trend in itself.
Yet, they are a testimony to the fact that provisions of PWDVA may encourage false case filing
against male relatives also. This proves the limits of the new law to settle domestic issues within
the family structure.

The Domestic Violence Act, 2005 was enacted with a view to give protection to women from
domestic violence. However, the misuse and abuse of Domestic Violence Act, 2005 is a matter of
serious concern for the courts today. A careful screening of the complaint is required to ensure that
the complaint so filed by a woman under this law is not manipulative or a measure to take revenge
against a man.

The main purpose of the Act was to protect the women against abuse/violence and not to create a
civil right to file a suit without any reasonable cause.

Domestic violence can be Psychological Abuse, Social Abuse, Financial Abuse, Physical Assault
or Sexual Assault. Violence can be criminal and includes physical assault or injury (hitting,
beating, shoving, etc.), sexual abuse (forced sexual activity), or stalking.

Sexual violence particularly needs to be recognized as a form of cruelty not only because of its
high prevalence within marriage but also because the definition of rape within Sec 376 IPC
specifically excludes marital rape as an offence.

Section 498A does not address these different forms of violence specifically, and addresses
“cruelty” very generally, as any act that is likely to drive the woman to commit suicide or to cause
grave injury or danger to life. As a result, it often is at the discretion of the police officer to assess
whether the sexual abuse or verbal and psychological abuse faced by a woman from her husband
or in-laws would qualify as cruelty under Sec 498A or not.

Major drawbacks of this Act

There major drawbacks of this law are as follows:

a) Preference to women:

The Act assumes that only women are victims. As per this law, only a woman can file a complaint
against against a man. A man has no rights under this law.

According to Section 32(2) of the Act, the court concludes that the testimony of the victim
(woman) is always true and there will be no need for any supportive evidence to prove that an
offense has been committed. This is very dangerous for innocent men since they are left with
absolutely no remedy against the women who can anytime lodge false complaints due to certain
grudge or revenge against them.

b) Potential chances of misuse:

Secondly, there are potential chances of its misuse. If a woman lodges complaint that there was a
verbal and emotional abuse by her husband, then she needs to prove nothing.

According to Section 18 of this Act, a magistrate can take measures to protect the woman from
any acts of violence that are even likely to take place in the future. This means that the woman get
a upper hand in protection and the person against whom they have complained can be punished,
even though he may not have committed any act of violence and there may be only a chance of
occurrence of the violence in the future.

This Act also says that the information regarding an act of domestic violence does not necessarily
has to be lodged by the woman herself but can be lodged by any person who has reason to believe
that such an act has taken place or is being so committed. That is even the neighbors and relatives
can take an initiative on behalf of the victim. This is a sheer injustice because anyone can lodge a
complaint on behalf of the woman without any authentic proof or evidence.

The fact that the complaint lodged by a woman will be always treated as true and genuine opens
up potential chances of misuse where innocent men will be accused and implicated of false
charges.

c)Definition of domestic violence:

The third drawback of the Act is that the definition of domestic violence is not well defined.

An insult is also considered as a domestic violence. It is true that differences may arise in a
marriage anytime since there may be lack of proper understanding between the couple. Many
people try to work on this and try to sort out their differences. While some women approach the
court even for minor issues and thus, men feel threatened by the enactment. This law will therefore
lead to more divorces and breakdown of a family.

The government has laid emphasis that usually the protection officer provided is a female herself
but however the writing of DIR is not considered necessary and has no value as such. This proves
out to be a flaw in the act as well since the person who has submitted her complain is left with no
other way to add to her complains which could have been suffered by her after the writing of DIR
Conclusion

The law at present is grossly inadequate to tackle the problem of domestic violence. It makes
women more superior to men. According to our Constitution, we all have equal rights, irrespective
of caste, creed, gender etc. This means that the law should offer equal protection to both men and
women. Moreover, the law needs to be made more practical by defining what constitutes domestic
violence punishable under this Act. When a person who has not committed any crime is threatened
under the law, it is a sheer injustice to that innocent person.

Quantifying psychological abuse is extremely difficult, and very few studies have been conducted
to establish prevalence rates of this type of violence. Qualitative studies that have been undertaken
conclude that it is just as damaging to one's health to be continuously psychologically abused as it
is to be physically abused. Undermining an individual's sense of self esteem can have serious
mental and physical health consequences and has been identified as a major reason for suicide. For
some women, the incessant insults and tyrannies which constitute emotional abuse may be more
painful than the physical attacks because they effectively undermine women's security and self-
confidence.(9)

Violence against women has a far deeper impact than the immediate harm caused. It has
devastating consequences for the women who experience it and a traumatic effect on those who
witness it, particularly children.
The shortcomings of the Domestic Violence Act should not, however, undermine its necessity in
the Indian context. We have noted earlier that domestic violence constitutes the major type of
crimes committed against women in the country. It is worth noting that cases of dowry death
,dowry prohibition and torture/cruelty by husband and other relatives collectively constitute
48.54%of registered crimes against women in the country in 2008.This implies that women in
India, irrespective of socio-cultural differences, continue to be exploited, harassed and tortured in
domestic sphere. Surprisingly, certain myths are also prevalent as part of the patriarchal ethos
which prove that violence is ‘normal’ within family (Ahlawat 2005).Often the abusive men is
stereotyped as 'alcoholic' ,‘mentally ill’, or ‘very angry in nature’, who would normally not commit
any violence! These myths are dangerously misleading and research has proved that domestic
violence cannot be controlled unless the rhetoric of male domination is challenged seriously.
Hence the ‘female bias’ of the recent act or its potential for being misused should not be
exaggerated, even though it necessary to be careful about such deviations. Nevertheless, the
passing of the new act once againreveals our dependency on the administrative and legal
machinery to prevent gender crimes within the prevailingpatriarchal social structure. Hence, there
remains seriousconcern about possibility of the new law to makequalitative changes in the life of
women within family.
Prevention of misuse of 498A

The Supreme Court laid down comprehensive directions to prevent the misuse of the provision of
Section 498A, IPC.

Family Welfare Committee

The constitution of one or more Family Welfare Committees in every district which shall
preferably consist of three members. Such a constitution is to be made by the District Legal
Services Authorities.The members may be volunteers/social workers/retired persons/wives of
working officers/other citizens or anyone who may be found suitable and willing. Frequent review
of constitution and working of such committees in addition to the yearly review which is a
minimum requirement. Such review shall be done by the District and Session Judge of the district
who is also ex-officio chairman of the District Legal Services Authority. The Committee members
will not be called as witnesses. Every complaint has to be referred to the Committee and the
committee has to submit the report to the authority who referred to such complaint. The report may
be then considered by the Investigating Officer or the Magistrate on its own merit.

The work of the committee includes looking into every complaint under Section 498A received by
the police or the Magistrate. No arrest should normally be effected till report of the committee is
received.

Investigating Officer

Investigating Officers to be designated within a month from the delivery of judgment to investigate
the complaints under Section 498A and other connected offences. Such designated officer may be
required to undergo training for such duration (not less than one week) as may be considered
appropriate. The training may be completed within four months from the date of delivery of the
judgment.

Settlement

In cases where a settlement is reached, the District and the Sessions Judge to dispose of the
proceedings. Such disposal also includes the closing of the criminal case if the dispute primarily
relates to matrimonial discord. The District and Sessions Judge may also nominate any other senior
Judicial Officer to do the same.

Bail Matters

Cases where a bail application is filed with at least one clear day’s notice to the Public Prosecutor
or the complainant, the same may be decided on the same day. Recovery of disputed dowry items
may not by itself be a ground for denial of bail if maintenance or other rights of wife or minor
children can otherwise be protected. Further, in dealing with bail matters, certain things such as
individual roles, the prima facie truth of the allegations, the requirement of further arrest or custody
and interest of justice must be carefully weighed.

Issuance of Red Corner Notice

In respect of persons ordinarily residing out of India, impounding of passports or issuance of Red
Corner Notice should not be a routine.

Clubbing of cases

It will be open to the District Judge or a designated senior judicial officer nominated by the District
Judge to club all connected cases between the parties arising out of matrimonial disputes so that a
holistic view is taken by the Court to whom all such cases are entrusted.

Personal appearance

Personal appearance of all family members and particularly outstation members may not be
required. Further, the trial court ought to grant exemption from the personal appearance or permit
appearance by video conferencing without adversely affecting the progress of the trial. However,
the Court further said that these directions will not apply to the offences involving tangible physical
injuries or death.

The varying causes which can spark the violence within the four walls of homes need to be
analysed carefully and a wise study of the factors causing the violence may prevent a family to
suffer from the menace of domestic violence. The domestic violence may have a wider and deeper
impact in life of the victims. A proper societal-legal environment has to be built to make the houses
safe and secure for the woman. India cannot prosper by keeping half of its population under duress