VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

VIVEKANANDA SCHOOL OF LAW AND LEGAL STUDIES

CRITICAL ANALYSIS OF DOMESTIC

VIOLENCE ACT

SUBMITTED BY:

RIYA
ENROLLMENT NO:

21817703819

SEMESTER AND SECTION:

3RD E

SUBMITTED TO:

MR. AASH MOHAMMAD

ACKNOWLEDGEMENT:
FIRST AND FOREMOST, I WOULD LIKE TO THANK THE ALMIGHTY FOR THIS
OPPORTUNITY.

I ALSO TAKE THE OPPORTUNITY TO EXPRESS MY PROFOUND GRATITUDE AND

REGARD TOWARDS MY TEACHERS FOR THEIR ENCOURAGEMENT AND SUPPORT
AND IN PARTICULAR MY MENTOR MR. AASH MOHAMMAD. FOR HIS EXEMPLARY
GUIDANCE, MONITORING AND CONSTANT ENCOURAGEMENT THROUGHOUT THE
COURSE OF THIS DISSERTATION. THE BLESSING, HELP AND GUIDANCE GIVEN BY
HIM TIME TO TIME SHALL CARRY ME A LONG WAY IN THE JOURNEY OF LIFE ON
WHICH I AM ABOUT TO EMBARK.

I ALSO TAKE THIS OPPORTUNITY TO THANK MY PARENTS FOR THEIR UNTIRING

SUPPORT AND MY FRIENDS FOR HELPING ME DURING THE RESEARCH WORK
AND ALL OTHERS FROM WHOM I HAVE TAKEN HELP TO COMPLETE MY
DISSERTATION.

RIYA
DECLARATION:
I HEREBY DECLARE THAT THIS RESEARCH PAPER TITLED AS ‘CRITICAL
ANALYSIS OF DOMESTIC VIOLENCE ACT’ WHICH IS SUBMITTED FOR THE 3RD
SEMESTER HAS NOT BEEN SUBMITTED IN ANY UNIVERSITY FOR ANY DEGREE OR
DIPLOMA AND IS MY ORIGINAL CONTRIBUTION. I HEREBY VERIFY THE
ORIGINALITY OF CONTENT OF THE DISSERTATION.

PLACE; DELHI

RIYA
CERTIFICATE BY GUIDE:
THIS IS TO CERTIFY THAT THE DISSERTATION ENTITILED, “CRITICAL ANALYSIS
OF DOMESTIC VIOLENCE ACT” HAS BEEN PREPARED BY RIYA, A STUDENT OF
B.A.LL.B. 3rd SEMESTER, VIVEKANANDA LAW SCHOOL, VIVEKANANDA INSTITUTE
OF PROFESSIONAL STUDIES UNDER MY SUPERVISION AND GUIDANCE AND I
RECOMMEND IT FOR SUBMISSION FOR THE EVALUATION.
CONTENT:
1. INTRODUCTION

1.1 DEFINITION

1.2 KINDS OF ABUSE

2. DOMESTIC VIOLENCE IN INDIA

3. SECTION 498 A IPC

3.1 FORMS OF CRUELTY

3.2 SECTION 498 A USES AND MISUSES

4. CASE STUDY

4.1 KALIYAPERUMAL & ANR. VS STATE OF TAMIL NADU

4.2 ARNESH KUMAR VS. STATE OF BIHAR

5. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

5.1 SCOPE OF ACT

5.2 PROCEDURE INVOLVED UNDER THIS ACT

5.3 CRITICISM OF THE ACT

5.4 CASE STUDY

5.4.1 S R. Batra and Anr. vs. Smt. Taruna Batra

6. Domestic violence complaints at a 10-year high during COVID-19 lockdown

7. CONCLUSION
RESEARCH METHODOLOGY:
THIS RESEARCH PAPER IS A DOCTRINAL RESEARCH BASED ON THE STUDYING
AND ANALYZING OF THE EFFECT OF DOMESTIC VIOLENCE ON THE VICTIM BY
FACTUAL DATA, CASE STUDIES, RECENT NEWS ANALYSIS, PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 AND INDIAN PENAL CODE.

OBJECTIVES:
THIS STUDY DEALS WITH:

1.IS SECTION 498 A OF IPC IS USED OR MISUSED BY AGGRIEVED?

2. CAN PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 BE

CRITICISED?

3. WHAT IS CONDITION OF DOMESTIC VIOLENCE DURING LOCKDOWN DUE TO

COVID-19?

HYPOTHESIS:
THE OUTCOME OF PRESENT DAY STUDY IS TO EXPOSE ONE TO THE VIOLENCE
FACED BY WOMEN IN HER DAY TO DAY LIFE AND MAKING ONE FAMILIAR
ABOUT THE LEGISLATIONS PASSED BY INDIAN GOVERMENT TO COUNTER THIS
PROBLEM.
INTRODUCTION:
Where Women are honored, holiness blossoms there, and where ever women are dishonored,
all action no matter how noble it may be, remains unproductive”

DEFINITION:
Domestic Violence: it includes descriptively all forms of actual abuse or threat of abuse of
physical, sexual, verbal, emotional and economic nature that can harm, cause injury to,
jeopardize the health, security, life, limb or comfort of the aggrieved person. The definition is
sufficiently broad to cover child sexual abuse, harassment caused to a woman or her relatives by
unlawful dowry demands, and marital rape.

KINDS OF ABUSE:
Physical Abuse- is an act or behaviour which causes bodily pain, harm, or danger to life, limb,
or health of the aggrieved person

An act that leads to assault, criminal intimidation and criminal coercion.

Sexual Abuse- any behaviour of a sexual nature that torture, disgrace, or violates the dignity of a
woman.

Verbal and Emotional Abuse- is any insult, mockery, embarrassment and name-calling

Threaten to cause physical pain to any person in whom the aggrieved person is concerned.

Economic Abuse- is denying the aggrieved person of economic or financial resources to which
she is authorized under any law or custom or which she obtain out of necessity .Limiting
continued access to resources or facilities in which she has an interest or entitlement by being in
a domestic relationship including access to the shared household.

DOMESTIC VIOLENCE IN INDIA:

The state of affairs of our nation today where countless number of women is being killed in the
name of dowry, honors domestic violence and what not.

In India, more than 30% of women have been subordinated to domestic violence at
some point in their lives as per the National Family Health Survey (NFHS) data.
Yet, nearly 75% of those who reported being victim to domestic violence did not
seek help from anyone. For those who do, by being in close family members, the
crime often gets dismiss as a private or family matter that doesn’t require outside or
legal intervention.This response can confine a women stay in abusive situations for
her entire life.

Unfortunately Domestic Violence is a reality of Indian society specially at homes.

In the Indian Patriarchal setup, it turned into a satisfactory practice to maltreat
women. There might be number of explanations behind the event of domestic
violence.

Article 15 of India’s constitution guarantees protection to live a life of dignity and respect to all
its citizens, specially the marginalized ones. Also, India has approved to International
Conventions like Convention for Elimination of all forms of Discrimination against Women
(CEDAW).So , India made special provisions for women to address this inequality.

The cruelty which women faces behind the four walls of her matrimonial house so for protecting
her from this cruelty, the Indian Penal Code,1860 was amended in 1983 and S.498A was placed
which deals with ‘Matrimonial Cruelty’ to a woman.

In India, Matrimonial Cruelty is a cognizable, non bailable and non compoundable offence.1

SECTION 498 IPC:

This section talks about cruelty by a husband or his family towards a married woman.

There are four types of cruelty according to this section :

 act that leads a woman to suicide or commit suicide,

 Act which causes serious bodily harm to the women,

 harassment with the purpose of coercing the woman or her relatives to give some
property, dowry etc, or

 Harassment because the woman or her relatives is unable to fulfill the demands for more
money or does not give some property.

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WWW.SCCONLINE.COM
The punishment under this section is imprisonment for up to three years and a fine or both . The
complaint against cruelty need not be registered by the person herself or Any relative of her may
also make the complaint on her behalf.2

FORMS OF CRUELTY:
 Persistent denial of food,

 Insisting on perverse sexual conduct,

 Constantly locking a woman out of the house,

 Denying the woman access to children, thereby causing mental torture,

 Physical violence,

 Taunting, demoralizing and putting down the woman with the intention of causing mental
torture,

 Confining the woman at home and not allowing her normal social intercourse,

 Abusing children in their mother's presence with the intention of causing her mental
torture,

 Denying the paternity of the children with the intention of inflicting mental pain upon the
mother, and

 Threatening divorce unless dowry is given.

CASE STUDY:
1. Kaliyaperumal & Anr. v. State Of Tamil Nadu:

FACTS:
At the time of the marriage between the deceased and her husband (Ashok Kumar), demand for
jewelry and cash was made by the latter’s family. The family of the deceased could not arrange
the whole demand at the time of marriage and promised to pay the balance soon. Meanwhile,
Ashok Kumar was working abroad and whenever he left India, he would leave the deceased with
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BARECT “ THE INDIAN PENAL CODE (45 OF 1860)
her parents. The deceased was continuously insulted, humiliated, and tortured because the
demand was not completely met. When it became unbearable, the deceased left her matrimonial
house. Subsequently, appellant no. 1 (her father in law) went to take her back and beat her in a
public street. On hearing about this, the parents of the deceased went to the house of appellant
no. 1 where they were insulted and abused. One day, they received information that their
daughter had committed suicide. A charge sheet was filed against the appellants and Ashok
Kumar, but he was acquitted.

ISSUE:
Whether or not a case under Sections 498A is made out against any of the accused.

DECISION:
The appellants were found guilty and convicted under Sections 498A by the Sessions Judge. On
appeal, the High Court upheld the conviction and confirmed the sentence five years as imposed
in respect of offence punishable under Section 498A.

The Supreme Court in its judgment based on the facts of the case, the Court upheld the
conviction of appellant no. 1 (Father in law) under Sections 498A. The order of conviction of
appellant no. 2 (mother in law) under Section 498A was also upheld.3

2. Arnesh Kumar v. State of Bihar:

Facts:

The wife alleged that dowry was demanded from her and that she was driven out of the
matrimonial home on non-fulfillment of such demands. The husband applied for anticipatory bail
which failed. SO, the husband approached to the Supreme Court by special leave petition.

Decision:

The Court observed that Section 498A of IPC is a cognizable and non-bailable offence, it is
many a times used as a weapon rather than shield by aggrieved wives. It results in annoying the
husband and his relatives as they will get arrested under this Section and it is more distressing to
see incapacitated grandfathers and grandmothers being arrested without a prima facie case. Thus,
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AIR 2003 SC 3828
the Court laid down certain guidelines which the police officer must follow while arresting under
Section 498A, IPC that such arrest must be based on a reasonable satisfaction with respect to
genuineness of the allegation. Moreover, even the Magistrates must be careful enough not to
authorize detention casually and mechanically.4

SECTION 498 A – ITS USE AND MISUSE:

MISUSE ;

Radical feminists has made Section 498A as a weapon in their hands due to rise in
modernization, education, financial security and the new found independence . Many a
unfortunate husbands and in laws have become victims of their revengeful daughter-in-laws.
Most cases where Sec 498A is called upon turn out to be a false as repeatedly accepted by High
Courts and Supreme Court in India as they are mere threat attempts by the wife or her close
relatives when faced with a strained marriage. In most cases 498A complaint is followed by
extortion to resolve the case out of the court.

Use of Section 498 A by Indian Courts:

Indian Courts had been using this provision to protect the women from facing the cruelty which
they often faced at their matrimonial home.
As researched, 9 out of 10 of the cases are always related to dowry, wherein the woman is
perpetually warned for want of more money and property which if not fulfilled then the married
woman is tortured, threatened, abused that can be both physically and verbally .The increasing
rate of bride burning which is due to want of more dowry and brutal torture of young wives,
together with a clear get away of the abuser is a clear sign that the court has not taken any strong
measures for the implementation of Section 498A of IPC properly.

It is seen in many judgments that the court has not considered mental cruelty caused to the
woman but has only focused on any sign of physical cruelty. If evidence does not show that the
woman was physically tortured , then the court does not look into the case. Then what the court
does is call the woman oversensitive or of low tolerance level and having an unstable mind.

When women fabricated charges against her husbands under S.498A IPC as the offence under
this is non-bailable and cognizable then the man being innocent does not get a chance speedily to
get justice and we know ‘justice delayed is like justice denied’.

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Arnesh Kumar Vs. State of Bihar(2014)8SCC273
Therefore, the lawmakers must recommend some ways of making this section impartial so then
the guilty is punished and the person wronged is given justice.

In India the position of the women is still bad. They still need rights to ease themselves in society
but many a times fails to notice others’ rights as long as their rights are secured. Today at least
the educated woman of society must agree with the mantra of equality and demand the same but
the reality is that the trend is slowly getting reversed. Women are taking a lot of advantage of
the fact that they are considered as the ‘weaker sex’ and on the foundation of rights ensured to
them they are violating others’ rights.

PROTECTION OF WOMEN FROM

DOMESTIC VIOLENCE ACT, 2005:

Section 2 of the Act defines the term ‘aggrieved person’ who is one who files the complaint of
domestic violence. Here, it means a woman who has been in a domestic relationship with the
respondent and claim that he has inflicted domestic violence upon her.

Domestic Relationship means a relationship between two people who live or have lived
together in a common household, and are related to each other by:

 Marriage,
 Live -in relationship
 Adoption,
 Are family members,
 Are connected through blood relations.

Shared household as stated in this clause is the house belonging to or taken on rent by the man,
the house in which the man and woman lived together with shared rent, or the house in which the
man and woman lived along with his joint family.5

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The Protection Of Women From Domestic Violence Act, 2005(43 of 2005)
Also, Section 2 defines respondent as a man.

Section 3 of the Act defines the term ‘domestic violence’ in detail.

Scope of the Act:

In Bhartiben Bipinbhai Tamboli v. state of Gujarat the scope of the act was discussed. In this
case, the court said that domestic violence in India uncontrollable . A lot of women face it in
their lives being a daughter, sister,wife etc in some form or the other every day. Then also, it is
the least reported form of cruelty, mainly because of disgrace in the society and also the attitude
of women themselves.

The remedies available to a victim of domestic violence were quite limited till 2005. They could
either go to civil court and commence a divorce proceeding or go to the criminal court for the
offence under Section 498-A of the Indian Penal Code . Moreover, relationships outside of
marriage were also not recognized. Such aspects forced a woman to stay silent. Considering, all
this, the parliament enacted the Protection of Women from Domestic Violence Act, 2005. This
Act provides a very wide concept to the definition of an aggrieved person which also includes
women in live-in relationships and aims to protect a woman from violence applied by a man
and/or a woman.

Hence, the Act has a broad scope as covers a large number of women who earlier had very
limited remedies.

The Procedure involved under the Act:

Step 1: Informing the protection officer

Any women who has grounds to believe that domestic violence has been or is likely to be
inflicted upon her can inform about the same to a protection officer who is appointed
under Section 8(1) of the Act. If such a protection officer is a woman then it would be better.

It must also be mentioned here that if the appointed protection officer does not perform her/his
duties she/he can be liable to imprisonment up to 1 year and fine up to Rs. 20,000.

Step 2: Making a domestic incident report by the protection officer

Upon receiving the domestic violence complaints, the protection officer must make a domestic
incident report to the Magistrate. This report should also assert relief for a protection order if the
aggrieved person wishes.
Also the copies of the report should be forwarded to the police officer in charge of the police
station within local limits of which the domestic violence reported.

Step 3: Application with the magistrate

Once an application is filed to the magistrate by the aggrieved person or someone on her behalf
or a protection officer then the magistrate will fix the date of the first hearing.

Step 4: Notice to the respondent

As soon as the date of the first hearing has been set by the magistrate, a notice shall be given to
the protection officer who shall inform the respondent or any concerned person as prescribed by
the magistrate.

Step 5: Giving Orders

1. Protection Order

After hearing both the parties if the magistrate is satisfied that domestic violence took place then
the magistrate can pass a protection order in favour of the aggrieved party.

2..Residence Order

If Magistrate finds it suitable then may pass the Residence order.

3.Monetary Relief

The magistrate may also instruct the respondent to pay monetary relief to the aggrieved person
for expenses and losses suffered by her.

4.Custody Order

The custody of a child or children may also be given to the aggrieved person or person making
an application on her behalf by the Magistrate. The visitation arrangements might also be
specified by him.

5.Compensation Orders

An order could also be passed by magistrate directing the respondent to pay compensation to the
aggrieved person for the wounds , mental torture and emotional pain caused to her because of the
domestic violence.
Step 6: Steps to take in case of breach of the order given

If the respondent violates the protection order given by the magistrate then he shall be liable
under this Act. He shall be liable with:

 Punishment up to a term extending to one year, or

 Fine ( at maximum 20,000 Rupees)

Criticism of the Act:

The law is not free of criticism. People have criticized it on some of the following grounds:

1. Some people have criticized this act of it being only civil, instead of both civil and criminal
as it was meant to be. The criminal part of the law only gets activated when the act of domestic
violence go along with some other offence like not following the protection order given by the
court.

2. As per the Act, the Protection officer is in authority who is responsible for effective
implementation of the Act , identified by the State Government. The people appointed under
the Act do not work full time because most of the time, this duty is given as an additional
charge to those who are already in Government services and these people are mostly not
qualified to fit into this role.

3. Many people have said that this law is biased as it assumes men to be the sole criminal of
domestic violence. So, by allowing only women to file a complaint about domestic violence
under this law it violates Article 14 and 15 of the Indian Constitution and discriminates
against men.

4. Cunning women are using this act just to cause trouble to men without any reason.

CASE STUDY
S. R. Batra and Anr. vs. Smt. Taruna Batra:
FACTS:
Ms. Taruna Batra married to Amit Batra , who is the son of the two appellants Mr. and Mrs. S.R.
Batra. After the marriage, Taruna and her husband started living together as husband and wife
on the second floor ,while S.R. Batra and his wife lived separately on the ground floor of the
same property. The whole property was completely owned by Taruna Batra’s mother-in-law
who is Mrs. S.R. Batra.
One day Amit Batra filed for divorce, after which Taruna Batra filed an FIR against her
husband, father-in-law, mother-in-law, and sister-in-law on some grounds. They all were arrested
and granted bail after three days. Due to rising tensions, Taruna Batra shifted to her parent’s
house. Also Amit Batra, moved out of the residence into his own flat in Ghaziabad. Later on,
Taruna Batra tried to return to her old home( where she used to live with amit batra) but found it
locked so she filed a suit for seeking mandatory injunction to enable her to enter the house but,
before any order could be passed, she broke into the residence by force.
ISSUE:
The second floor of this property should be considered as Taruna Batra’s matrimonial home?
DECISION:
The Supreme Court in this landmark judgment explained the legal definition of “shared
household.” The Supreme Court determined that in order for a home to be considered a “shared
household”, the property must be either owned by the husband or he must pay rent on the
property, or the house must belong to a joint family of which the husband is a member. The court
held that the property in question cannot be considered as a “shared household.”6

Domestic violence complaints at a 10-

year high during COVID-19 lockdown

During the first four phases of the COVID-19 when there was lockdown in entire country, Indian
women filed more domestic violence complaints than recorded in the last 10 years.

Alarming rise

Between March 25 and May 31,2020 approximately 1,477 complaints of domestic violence were
made by women. This Covid -19 lockdown recorded more complaints than those received
between March and May in the previous 10 years.

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S.R. Batra and Anr. vs. Smt. Taruna Batra, (2007)3SCC169
Buried in silence

Almost 86% women who experienced violence never seek for help, and 77% of the women did
not even mention the incident to anyone. The data shows that women who were victims to both
physical and sexual violence ask help relatively more than those who suffer from only one form
of abuse.7

CONCLUSION:
I am the woman who holds up sky.
The rainbow runs through my eyes.
The sun makes a path to my womb.
My thoughts are in the shape of clouds.
But my words are yet to come.

The Protection of Women against Domestic Violence Act, 2005 is landmark for the protection of
women and girls from Domestic violence. This act provides for more protection of the rights of
women which are guaranteed under our Constitution for one who are victims of violence of any

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THE HINDU
kind occurring within their family. The Act is biased as it is completely beneficial to women
only.

The law itself becomes failure though not fully and it becomes necessity for enacting the Special
Legislation. These grounds , national and international bounties compelled the Indian
Government to enact the Protection of Women from Domestic Violence Act of 2005 and to
spread over a Special legislation on domestic violence for confining provisions for guilty family
members for prohibiting harassment or any violence against women or girl.

The objective of adding the Chapter XXA in Indian Penal Code is to protect the wife where
cruelty was inflicted upon her but not to disturb the family life where the husband and wife in
spite of some previous misunderstanding want to stay together, it should be the duty of Court to
encourage such rapprochement and allow them to live as husband and wife rather than to disturb
the family happiness by forcing the wife to pursue a criminal proceeding .

In India , domestic violence is a punishable offense under the law, even if only rather recently.
The Protection of Women from Domestic Violence Act, 2005, which became effective as clearly
recognized domestic violence as a punishable offence. Laws alone cannot limit violence in the
homes as long as domestic violence continues to be treated ‘special’.

BIBLOGRAPHY:
NEWSPAPER:
THE HINDU- “Data Domestic violence complaints at a 10-year high during COVID-19
lockdown”

THE TIMES OF INDIA- “Is domestic violence the next pandemic in India”
WEBSITES:
WWW.HELPLINELAW.COM; LAST VISITED ON: 20/12/2020

IDRONLINE.ORG ; LAST VISITED ON; 24/12/2020

BAREACTS:
The Protection of Women against Domestic Violence Act, 2005

THE INDIAN PENAL CODE

CASES:
S.R. Batra and Anr. vs. Smt. Taruna Batra, (2007)3SCC169

Kaliyaperumal & Anr. v. State Of Tamil Nadu: AIR 2003 SC 3828

Arnesh Kumar Vs. State of Bihar(2014)8SCC273