Law

Criminal Law

16: Law relating to Domestic Violence in India

 Quadrant I Description of the Module

Description of Module
Subject Name Law
Paper Name Criminal Law
Module Name/Title Law Relating to Domestic Violence in India
Module Id Module 17
Pre-requisites A basic understanding of issues and problems
pertaining to domestic violence in India

Objectives a. To sensitise students to the problem of

Domestic Violence and the law relating to
the issue
b. To discuss important provisions of the
Protection of Women from Domestic
Violence Act, 2005 as well as section 498-
A of the Indian Penal Code
c. To discuss significant judgments in the
area of Domestic Violence and
Matrimonial Cruelty

Key Words Domestic Violence, 498A, matrimonial cruelty,

physical abuse, verbal abuse, emotional abuse,
protection officer, protection order, monetary
relief, compensation.

Quadrant II: E-text

Introduction:
The problem of Domestic Violence is a major social menace in India which is reflective of the
inferior and derogatory treatment meted out to women at the most fundamental unit of social
life- family. Very often, it is intertwined with the problem of dowry, another social evil typical
to the Indian social set-up. The problem has been persistently present in our society since
times immemorial. However, it started gaining the attention of law-makers in the later part of
the twentieth century when the Parliament felt the need of introducing section 498A into the
Indian Penal Code. Section 498A makes penal provisions for Matrimonial cruelty which was
earlier recognised in Civil law only as a gender neutral ground available to both the spouses
for seeking divorce or judicial separation. However, the section had certain short-comings
and to overcome them, the Parliament enacted Protection of Women from Domestic
Violence Act in the year 2005. The current module will reflect on the law relating to Domestic
Violence in India.
Section 498 A: Prelude to the Protection of Women from Domestic Violence
Act, 2005
In the year 1983, section 498A1 was added to the Indian Penal Code by a much-needed
amendment. The section was inserted with the objective of penalising matrimonial cruelty, a
common phenomenon in every Indian matrimonial home. Till then, we did not have a law
that made any form of domestic violence a punishable offence. The section was specially
crafted for married women who were always in fear of being victimised, physically or
mentally in their matrimonial home by their in-laws. It was the very first manifestation of a law
against domestic violence, albeit in a limited manner. Under this section, liability is restricted
to acts of omission or commission by the victim’s husband or his relatives for meting out
cruelty to her.2 Section 498A is one of the most controversial provisions of the Indian Penal
Code and there have been a variety of allegations against this section starting from its
severe abuse 3 to its unconstitutionality 4 . Although the section does not define “cruelty” it
provides an explanation which states that cruelty can be both physical and mental. 5 It
includes acts on the part of the accused that have the potential of inciting or motivating the
victim to commit suicide.6 Any type of harassment by the in-laws for meeting / for failure to
meet unlawful demands for property/valuable security by the victim is included within the
scope of Matrimonial Cruelty under this section.7

Although Section 498A was drafted with the intention of safeguarding the interests of
women, it had a very limited scope. For instance, it did not address all forms of domestic
violence and was confined to physical or mental cruelty only. A further problem with the
section was that it provided for penal remedies only whenever a woman faced matrimonial
cruelty/violence. This narrowed down the scope of reliefs that could be extended to a
woman, whose needs were greater than merely punishing her husband. Likewise, the
section was applicable to married women only and therefore, complicated relationships in
the nature of marriage were beyond its reach. Consequently, a victim of cruelty or domestic
violence did not generally have a remedy under this section if she was not married, although
attempts were made in some cases to extend the benefits of section 498A to victims whose
marriages were not valid. One such effort was made in the case of Reema Agarwal v.
Anupam. 8 The case revolved around Reema Agarwal, a woman who had married the
respondent, Anupam during the lifetime of his first wife knowing that the marriage had not

1
Section 498A- Husband or relative of husband of a woman subjecting her to cruelty—Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation----For the purposes of this section, ‘cruelty’ means------
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or
(b) Harassment of the woman where such harassment is with a view to coercing her to meet any
unlawful demand for any property or valuable security or is on account of failure by her or any person
related to her to meet such demand.
2
KI Vibhute,PSA Pillai’s Criminal Law (Lexis Nexis Butterworths Wadhwa 2011), 768
3
Arnesh Kumar v. State of Bihar 2014 (8) SCC 273
4
Sushil Kumar Sharma v. Union of India and Ors AIR 2005 SC 3100
5
See n (1)
6
Ibid.
7
Ibid.
8
AIR 2004 SC 1418
been dissolved/ terminated. She was harassed by her ‘husband’ for not meeting his
demands for dowry and was even hospitalised. The Supreme Court interestingly remarked
that the benefit of section 498A would be extended to Reema as the intention of this
provision of law was to protect married women from physical, emotional or psychological
abuse by the husband or his relatives. The invalidity of a certain marriage cannot defeat the
purpose of this section and thereby, deprive a woman from its protection, if all other
elements of the marriage like cohabitation, assumption of marital authority, etc are present.
On this ground, Reema received the desired relief under section 498A.

Although Reema Agarwal’s case was taken into consideration for extending the benefits of
section 498A to relationships in the nature of marriage as well, the need was felt to have a
better piece of legislation which had a wider scope and could address all forms of Domestic
Violence. Finally, in the year 2005, the Protection of Women from Domestic Violence Act
(PWDVA) was passed to fill the vacuum in the area of Domestic Violence.

Protection of Women from Domestic Violence Act: End of the Tunnel or a

Fancy Sojourn?
The PWDVA was enacted to meet the challenges of a rapidly changing Indian society which
was moving from a traditional to a modern, rather liberal social structure. The Preamble of
the PWDVA states very clearly that it is an Act which intends to protect the constitutional
rights of women who are victims of violence within their families. An important feature of this
Act is that it makes civil remedies available to a victim of domestic violence. Let us take a
look at the provisions of this Act:

Defining Domestic Violence:

The first and foremost contribution of the PWDVA is that it provides a comprehensive
definition of Domestic Violence that overcomes the shortcomings of section 498A to a great
extent. Section 3 of the Act states that the forms of violence covered under the terminology
may be physical, sexual, verbal or emotional and economic in nature. Physical abuse refers
to an act of omission or commission which has the potential of causing bodily pain, harm or
danger to life or limb and includes assault, criminal intimidation and criminal force.9 Sexual
abuse refers to any form of treatment that has the impact of degrading, humiliating or
otherwise violating the dignity of a woman. Verbal and emotional abuse refers to insults,
humiliation, name-calling, sarcastic remarks or repeated threats of inflicting physical pain. In
this part of the explanation, a pertinent point to be noted is that the Act specially mentions
that remarks/ridicule made in connection with inability/failure to bear a male child will be
within the definition of verbal or emotional abuse. This part of the provision was probably
drafted keeping in mind the patriarchal psyche of Indian society where the desire to have a
male child is blown out of proportion and often results in all forms of abusive treatment
meted out to the woman.10 A novel feature of this legislation is the introduction of economic
abuse as a form of domestic violence. It covers issues like coercive denial to the woman of
resources that she is entitled to by virtue of the domestic relationship, misappropriation of
the victim’s stridhan and deprivation of economic resources that she is entitled to as a
member of a shared household including access to such household.11

9
The Protection of Women from Domestic Violence Act,2005, s 3 (PWDVA)
10
ibid
11
ibid
 Components of Domestic Violence under the Protection
of Women from Domestic Violence Act,2005

Physical Abuse Sexual Abuse

Verbal Abuse Emotional Abuse Economic Abuse

Other Definitions under the Act:

Apart from defining Domestic Violence, the Act also defines several other important terms.
For instance, the term ‘domestic relationship’ is very important and has been defined under
section 2 (f) of the PWDVA. It has a broad connotation which covers relationships between
two individuals who have lived together in a shared household 12 when related by
‘consanguinity, marriage, a relationship in the nature of marriage, adoption or are family
members living together as a joint family’.13 So, the Act brings live-in relationships also within
the purview of domestic relationship and hence, a live-in partner can be prosecuted for
domestic violence. Likewise, the Act defines terms like Protection Officer, shared household,
shelter home, protection order, residence order, etc under section 2.

Scheme of Implementation of Anti-Domestic Violence measures under the Act:

Chapter III is an important part of the PWDVA as it lays down the powers and duties of
various functionaries under the Act. Some of the important functionaries under the Act are
as follows:

12
PWDVA, s 2(s)
13
ibid
 Protection Officers

Service Providers

Other State and Central Government Officers

Protection Officers: The Act specifically provides for the appointment of such number of
Protection Officers by the State Government as would be necessary for executing its
provisions under section 8. They are the ones who would be approached by an informant for
reporting a case of domestic violence. Under section 4, civil or criminal liability of the
informant is excluded if he has passed on information of domestic violence in good faith.
Under section 5, it is the duty of the Protection Officer to inform a victim of domestic violence
of the reliefs available under the PWDVA including her right to seek monetary relief,
residence order, compensation order, access free legal services, and other rights that may
be available under any other law. Under Section 6, the Protection officer can also request a
shelter home to provide shelter to a victim of Domestic Violence. The duties and functions of
Protection Officers have been enumerated under section 9 and include inter alia provision of
services to victims by making ‘domestic incident report’ to the Magistrate, assisting the
Magistrate in the discharge of his functions, making application for a protection order and
ensure that legal aid is provided free of cost to victims wherever required.

Service Providers
Under section 10 of the Act, provisions have been made for the registration of a voluntary
association or an organisation registered under the Societies Registration Act, 1860 or a
company registered under the Companies Act, 1956 as a service provider for the purposes
of this Act. A service provider, under this section, shall have the power to record a domestic
incident report and forward a copy of the same to the Magistrate or the Protection Officer.
Such service provider can also get the victim medically examined and ensure that she is
placed in a shelter home wherever required. A suit or proceeding cannot lie against a service
provider while discharging his functions in good faith as required under the Act.

Other functionaries
Apart from the aforementioned special officers, the Act also makes provisions for duties to
be discharged by police officers and Magistrate in cases of Domestic Violence under section
5. Likewise, duties of medical facilities have been laid down in section 7 and duties of the
State Government and Central Government have been enlisted in section 11.
Likewise, in Chapter IV of PWDVA, provisions have been made for obtaining various releifs
under the Act. Some important reliefs that can be extended to victims of Domestic Violence
under the Act are as follows:

Protection Orders
Under section 18, the Magistrate is empowered to grant Protection Orders if he is prima
facie satisfied that an incident of domestic violence has taken place or is likely to take place.
The protection order is passed to prohibit the respondent from committing, aiding or abetting
acts of domestic violence; entering the place of employment of the victim; establishing oral,
written, telephonic or any other form of contact with the victim; alienating assets or operating
joint or single bank accounts/bank lockers or her stridhan/ any other property held jointly/
separately; causing violence to the dependants or committing any other act specified in the
Protection Order.

Residence Orders
Section 19 provides for the passing of Residence orders restraining the respondent from
alienating or disposing of or renouncing rights in the shared household except with the
permission of the Magistrate; directing the respondent to secure an alternate
accommodation; restraining the respondent or his relatives from entering any part of the
shared household. Under this section, the Magistrate may also direct the respondent to not
enter the premises of the household.

Monetary Reliefs:
Under section 20, fair and reasonable monetary reliefs may be provided to the victim for
compensating for loss of earnings on account of domestic violence, meet medical expenses,
or make up for loss caused due to destruction, damage or removal of property from the
control of the aggrieved party. The types of monetary reliefs provided under section 20 are
not exhaustive.
Custody Orders:
Under section 21, temporary custody of any child may be given to the aggrieved person or
any person making an application on the victim’s behalf.

Compensation Orders:
The Magistrate may also make orders for providing compensation and damages to a victim
of domestic violence on various grounds including mental torture and emotional distress,
caused by acts of domestic violence committed by the respondent.

For the smooth implementation of the Act, the Central Government came up with the
Protection of Women from Domestic Violence Rules in the year 2006. The Act, along with
the Rules aims at shielding women from Domestic Violence. Although the PWDVA made a
wide range of provisions for protecting the interests of victims of domestic violence, there
have been many roadblocks in the successful implementation of this Act. A major barrier has
been the non-appointment of Protection Officers in many parts of the country.14 The Act has
failed to show remarkable results owing to this major technical difficulty of many states
across the country simply not appointing Protection Officers.15 Further, arguments about the
abuse of this legislation have also generated considerable concerns over the effective
implementation of this Act. Considering these factors, it is difficult to say whether the

14
Indira Jaising, ‘Concern for the Dead and Condemnation for the Living’ (Lawyers Collective)
http://www.lawyerscollective.org/updates/8572.html accessed 13 November, 2014
15
See n(14)
PWDVA will be successful all by itself in preventing Domestic Violence or we would need
fresh pieces of amendments in the existing law to achieve the desired result.

Important Case studies in Domestic Violence

The PWDVA has been interpreted in different ways to extend legitimate remedies to victims
of domestic violence. It is necessary to take a look at some relevant decisions of High Courts
and the Supreme Court.

In the case of Sukirt Kr. Verma and Anr. v. State of Rajasthan and Anr., the wife sought
monetary relief under section 20 of the PWDVA. The Court made some important
observations on the duty of a husband to financially provide for the wife after expressing
disagreement with the Delhi High Court’s statement that a husband does not have any legal
obligation to maintain his wife, whether or not he earns. Further, the Rajasthan High Court
also observed that section 20 intends to bring economic parity between the husband and
wife and under this section; the wife is entitled to seek monetary relief from her husband and
it is the husband’s moral and legal duty to maintain her. The same line of argument was also
taken in Om Prakash v. State of Rajasthan and Anr. but in this case the Rajasthan High
Court went a step further and stated that the fact that the victim’s husband is physically
challenged or that he is poor cannot be counted against her right to be maintained by him.

In the case of Gajendra Singh v. Minakhshi Yadav16, the respondent had argued that the
appellant had sustained domestic violence between the years 2002-2004 and so, the Act
could not be applied retrospectively in 2006. However, the Court held that since the husband
had threatened his wife in 2006 and had also denied entry to their house in the same year,
the civil wrong was continuing in nature and hence, the victim could take the benefit of
PWDVA. Further, in the case of Ishpal Singh Kahai v. Ramanjeet Kahai17, the Court has held
that a wife can legitimately stop an errant husband from entering the premises of the house
under the PWDVA.

In several cases, the Supreme Court has expressed its concern over the abuse of laws
relating to domestic violence and matrimonial cruelty. Recently, in the case of Arnesh Kumar
v. State of Bihar 18 has laid down a number of guidelines for the police while arresting
individuals accused of Matrimonial Cruelty. To begin with, all State Governments have been
instructed to issue directions to the police curbing mandatory/automatic arrest when a case
under section 498 A has been registered. Rather, the police will be required to assess the
necessity of making such arrest and implement the same if the situation warrants the same
as per the parameters in section 41 of Cr. P.C.

Conclusion:
So as to conclude, the PWDVA has certainly played a big role in providing relief to women
who are victims of domestic violence. However, there have been roadblocks in the effective
implementation of this Act because of various reasons and statistics reveal that reported
incidents of domestic violence are only tip of the iceberg—the real figures are much greater

16
MANU/RH/0338/2011
17
2011 (3) ALL MR 353
18
2014 (8) SCC 273
than what we have on record. Thus, a more meaningful method of implementing the PWDVA
has to be adopted.

Summary:
1. Domestic Violence is a major social problem in India which has been part of Indian
homes for a very long time but was attempted to be addressed by the law only in the
year 1983.
2. Section 498 A of the Indian Penal Code was the first legal provision that attempted to
target the problem of domestic violence partially.
3. In the year 2005, the Protection of Women from Domestic Violence Act was passed
as section 498 A was found insufficient to deal with the massive problem of Domestic
Violence.
4. The PWDVA defines domestic violence as a concept including physical,
verbal/emotional, sexual and economic abuse.
5. The objective of the Act is to protect the constitutional rights of victims of domestic
violence.
6. The Act makes provisions for special officers like Protection Officers and Service
Providers for the benefit of victims of domestic violence.
7. The PWDVA also makes provisions for various types of reliefs for victims of
Domestic Violence. They are: Monetary reliefs, Protection Orders, Compensation
Orders and Custody Orders.
8. For a more effective implementation of the PWDVA, the Central Government came
up with the Protection of Women from Domestic Violence Rules in the year 2006.