The Grey Areas of Domestic Violence Laws in India

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.”[1]

And since then our prestigious nation by way of its legislature and judiciary has always ensured that women of this country get equal rights in every sphere of life and are not discriminated against. This is also evident in our Constitution. And one of those works of our legislature is domestic violence laws in India. When one talks about domestic violence laws in India, mainly two legislations come to mind: Protection of Women from Domestic Violence Act, 2005 and Section 498-A of the Penal Code.

This essay mainly lays emphasis on the above two provisions of law and points out the grey areas in these two legislations.

Domestic violence is currently defined in India by the Protection of Women from Domestic Violence Act of 2005. According to Section 3 of the above Act,

any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.[2]

The Act was enacted with a view to provide relief to women who have been made victim of violence within the family.

It is pertinent to note that law governing this subject prior to the above law was Section 498-A IPC which only punishes the perpetrators and is applicable only to married women. However, there is no relief or compensation for the victim under this provision. For this reason, Protection of Women from Domestic Violence Act was enacted to provide remedy under civil law. The Act provides several reliefs like shelter, medical facilities, protection order, compensation order, etc. This Act itself does not punish the perpetrator of domestic violence against the woman aggrieved but if the case discloses any offences punishable under the Penal Code or any other penal law, or under the Dowry Protection Act, the Magistrate can frame appropriate charges against the respondent and try the case by himself or commit it to the Sessions Court as the case may be. The victims may be wives, sisters and mothers or any other female relatives living in the shared household in domestic relationship. The Act as designed was meant to serve the purpose of protection of women from domestic violence both explicit and dormant. When this Act was enacted some people stated that definitions and forms of relief drafted show a clear effort on the part of the legislators to provide adequate redressal and protection. They also hoped that Domestic Violence Act is a step in the right direction. But unfortunately, years of misuse has proved them wrong.

The term “respondent” in the Protection of Women from Domestic Violence Act means

any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.[3]

This means that the wife can file a petition against the husband’s relatives also. She can demand for secure household and even force her husband to leave his own house.

On the face of it, the law appears to be a blessing for people in abusive or violent relationships. However, lets understand it this way, most of the real domestic violence cases in the country go unnoticed because in most cases the victim is an uneducated woman, mainly in the rural areas or in urban areas who is not fully aware of her rights and is the worst sufferer. She also sometimes fears to approach the court because of the consequences of her action in her social circle. Statistics show that even if they complain it is very rare. Also the cases mostly reported under Domestic Violence Act or under Section 498-A IPC are in urban areas, mostly in metropolitan cities where women are fully aware of their legal rights area and are smart enough to use it to their advantage in order to harass their husbands or his family members or extort money from them.

The Domestic Violence Act is so biased that even for small trivial matters it can be misused in the hands of a malicious wife. This becomes clear from the definition of domestic violence itself which is too expansive and hence it is bound to be misused.

Also, few definitions in the Act are very relative. Harassment is defined in the Act from women point of view only. It can also be connoted from the definition of “economic abuse” that if the male partner refuses to pay exorbitant monetary demands of the woman, she can accuse him of domestic violence. When any property is held by a male partner and if the woman has any “interest” in the property, the woman has the right to demand what she wants and not giving her will invite imprisonment. “Verbal” and “emotional” abuse is again very abstruse. There are hypersensitive persons who perceive hurt and imagine insults when none is meant or intended. For example, eminent lawyer Mr Soli Sorobjee in one of his articles pointed out that that—

“If the wife is fervently for hanging convicted criminals by the neck till they die, the male in exasperation may call her a blood thirsty moron.”

In the above examples it would be absurd to hold that the man has indulged in verbal abuse and is thus guilty of domestic violence. But that is precisely what would happen in view of the indiscriminate and imprecise definition of verbal abuse. Hence, there is a need to define verbal abuse narrowly and with precision and to prevent the Domestic Violence Act from being a paradise for lawyers, a hell for husbands and nightmare for enforcement authorities.[4]

Hence, definitions of “abuse” are sometimes so broad that nearly any man can be accused of it by his wife.

Even the former President Pratibha Patil herself being a woman expressed her views on the misuse of domestic violence laws accepting that there have been instances whereby protective legal provisions for the benefit of women have been subjected to distortion and misuse to wreak petty vengeance and to settle scores the fair invocation of legal provisions and their objective and honest implementation. She also condemned it by stating that it is unfortunate if laws meant to protect women get abused as instruments of oppression.

Earlier there was reluctance amongst the Indian women who used to experience domestic violence to report or prosecute against such genre of crimes. Domestic violence was often not handled as a substantial crime or complaint, but more of a personal or family matter. But now this trend has changed. Section 498-A introduced to protect women from domestic violence is the most misused law in India and accounts for the most suicide cases among men in India.

Now let us come to Section 498-A IPC which is a very potent weapon and is often misused by women to wreak havoc on husband’s family and by police to make money.

498-A. 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.

Domestic abuse includes physical, emotional and sexual violence of any form.[5]

The misuse of this section is so prevalent in our country that in contemporary cinema some movies like “498-A: The Wedding Gift” have been made to show how Section 498-A IPC is abused and why a husband committed suicide because of harassment by his wife. The Centre for Social Research (India) in a study on implications of Section 498-A IPC stated that “educated and independent minded women misuse the section”.

There are innumerable examples of misuse of domestic violence laws. For instance, these laws are being rampantly misused by some brides and her parents who conceal true facts about her mental health and educational level at the time of marriage, thereby adopting fraudulent means to forge the alliance. When these facts are unearthed by the groom and his family, the bride and her family prefer to take recourse to Section 498-A IPC. The language, content and structure of this law has enabled implication of thousands of innocent families in false cases. A complaint, without any authenticity and without any weight of evidence, is enough to arrest the husband, in-laws and anyone else name in the complaint, irrespective of whether a crime occurred or not. This has led to arrest of lakhs innocent citizens (thousands of families), with many committing suicide as they are unable to bear the indelible stigma on their honour and reputation.

I would also like to give an example of the harassment which is faced by husbands these days, a letter written by one Syed Ahmed Makhdoom who committed suicide due to misuse of Section 498 by his wife is quoted as under. “She and her parents asked me to furnish Rs 10 lakhs as early as possible. But at that time, I was not in a position to produce the sum. Since I was attached to my son, they prevented me from meeting my son. My wife then made false allegations against me and filed a complaint in the police station under Section 498-A. The police without trying to ascertain the truth took me away to the police station. On that day, I died literally. Ever since then I was dying day in and day out for two reasons. One, I was kept away from my son and two, I was harassed by my wife.”

The following judgments have acknowledged and some of them have even condemned the misuse of Section 498-A.

In Preeti Gupta v. State of Jharkhand[6], the Supreme Court observed that:

37. 37. … serious relook of the entire provision is warranted by the legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of overimplication is also reflected in a very large number of cases.[7]

In Sushil Kumar Sharma v. Union of India[8], the Supreme Court held that mere misuse of provision of law does not per se invalidate legislation. But it also accepted that in many instances, complaints under Section 498-A were being filed with an oblique motive to wreck personal vendetta and clearly said that it is for the legislature to find ways on how to deal with misuse of this law as well as on how to wipe out the ignominies suffered during and after the trial by the falsely accused. It also condemned the misuse of Section 498-A IPC by stating that it amounts to unleashing legal terrorism.

In Saritha v. R. Ramachandra[9] also, the court did notice that the reverse trend and asked the Law Commission and Parliament to make the offence a non-cognizable and bailable one.

Hon’ble Supreme Court in Mohd. Hoshan v. State of A.P.[10], observed as:

Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education, etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out.

In July 2014, in Arnesh Kumar v. State of Bihar[11], a two-Judge Bench of the Supreme Court reviewed the enforcement of Section 41-A CrPC which instructs State of following certain procedure before arrest, and went on to observe that the Section 498-A had become a powerful weapon in the hands of disgruntled wives where innocent people were arrested without any evidence due to non-bailable and cognizable nature of the law.

It was held that

4. 4. … The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives…. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by the National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under the Penal Code. It accounts for 4.5% of total crimes committed under different sections of the Penal Code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498-A IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.[12]

According to the statistics of NCRB (2003-2006), Ministry of Home Affairs, 5,01,020 people arrested under Section 498-A IPC; 2,94,147 people completed trial under Section 498-A IPC; and 58,842 people convicted (out of this many must have appealed to higher courts) which clearly proves the arrest of thousands of  innocent people due to Section 498-A IPC.

243rd Law Commission Report was submitted to the then Law Ministry depicting the misuse and facts of domestic violence laws. Some of its extracts are as follows:

According to informations received from the Hon’ble High Courts (during the year 2011), 3,40,555 cases under Section 498-A IPC were pending trial in various courts towards the end of 2010. There were as many as 9,38,809 accused implicated in these cases. According to statistics published by National Crime Records Bureau for the year 2011, 3,39,902 cases under Section 498-A were pending trial in various courts at the end of the year. The conviction rate in Section 498A cases is 21.2%.[13]

Conclusion and Suggestions

It can be concluded that in case of marital or domestic disputes, children are denied access to their fathers, which in result causes great pain to the fathers and children. The relatives of the husband are also prone to harassment. The easily abused laws like IPC Section 498-A and Domestic Violence Act are creating a situation of fear, mutual distrust and adversely affecting inter-personal relationships between men and women in the society. There is a sense of fear and insecurity among men, who find it difficult to repose faith in women or marriage. The data/information from various sources reveals that urban and educated women are mostly coming forward to file the complaints under the domestic violence laws. Unfortunately, a man accused of domestic violence is considered guilty until proven innocent in contrary to normal principles of justice. Most importantly, fraudulent claims of domestic violence are common and unpunished in many States. It is also a favoured divorce tactic in many States. It can be said that provocation of spousal abuse by a woman is encouraged by these laws. Often, a wife might deliberately provoke a husband to slap her with an ulterior gloat of gaining a very favourable divorce settlement.

Women are taking undue advantage of the fact that they are referred to as the “weaker sex” and on the foundation of rights ensured to them are violating others rights and misusing certain provisions of law. At the same point of time, I am of the opinion that mere misuse shouldn’t be the ground for the repealing the provisions of law like Section 498-A IPC or Protection of Women from Domestic Violence Act. But some very important measures and amendments are suggested in both these domestic violence laws to avoid there misuse.

Some of the changes which can be suggested are as follows—

According to the Committee on 243rd Law Commission Report offence under Section 498-A should continue to be non-bailable and cognizable as the Committee was unable to oversee the inputs it received from the Ministry of Women and Child Development, the National Commission for Women, National Commission for Protection of Child Rights. According to the report the fact that offence under Section 498-A IPC is cognizable and non?bailable is acting as a big deterrent in the society. In the opinion of the Committee, this historic step has succeeded in containing the magnitude of crime against women in the country. However, the Committee feared that any interference in the present law might reverse the social protection of women in their matrimonial home that has been built up so far but at the same point of time Committee strongly recommended that the ill-effects and misuse of the present legal provisions if not checked intensively might leave no option except to dilute the law by making the same non-cognizable and bailable. According to me that time has come to dilute the law. It is suggested that Section 498-A IPC should be made non-cognizable and bailable looking at the ever increasing false complaints.

Various definitions under Protection of Women from Domestic Violence Act are too expansive and hence bound to be misused. Therefore, they should be more precise and unbiased.

The offence should be made compoundable as suggested by the 237th Law Report, reiterated in 243rd Law Commission Report.

In case of matrimonial disputes, the first recourse should be effective conciliation and mediation between the warring spouses and their families and recourse of filing charges under Section 498-A IPC may be resorted to in cases where such conciliation fails and there appears a prima facie case of Section 498-A IPC and other related laws.[14]

Counselling mechanism envisaged under the Protection of Women from Domestic Violence Act should be implemented by State Governments and counselling of parties should be done only by professionally qualified counsellors and not by the police. The police may consider empanelling professional counsellors with CAW Cells.

Steps should be taken to refer the matter to the mediation centre or district legal aid centre a team of counsellors/conciliators. If the parties choose to have specified persons as mediators/conciliators, they must be referred to such persons.

The powers of arrest on such complaints are exercised carefully and cautiously. It is also suggested that that arrests under Section 498-A IPC should be done only with the written orders of the police officer of the level of DCP or equivalent and for acceptable reasons.

I would like to point out that Section 498-A despite helping the genuine victimised women has become a source of blackmail and harassment of husbands and others. Once a complaint is lodged with the police under Section 498-A IPC, it becomes an easy tool in the hands of the police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. It can therefore be concluded that the problem is with the provisions of CrPC which make the offence under Section 498-A non?compoundable and non-bailable. Hence, the amendment of Section 41 CrPC is proposed according to the Arnesh kumar case[15].

It is suggested that people making false complaints under Domestic violence laws should be punished if proved guilty. Section 498-A and Protection of Women from Domestic Violence Act be amended so as to provide for specific penalty in case the complaint is found to be false or with some other ulterior motive. The misuser of this law should be made liable to compensate the financial loss suffered by the falsely accused.

Although Delhi High Court has stated that the provisions of Domestic Violence Act are applicable against women, the legislature should include this ratio in the Act by way of an amendment. Protection of Women from Domestic Violence Act should be made gender neutral as there is heavy misuse of this Act. If the wife claims for right to residence under this Act, then the husband along with his aged parents has to leave the house which is harassment for him and his parents. The wife can get an order prohibiting him from entering his own household. Wife can also file multiple maintenance suits for the same relief under various legal provisions.

Even though the provisions of this Act are applicable only against the husbands, petitioners in most of the cases add all the family members of the husband in order to harass them. Therefore, time-bound trial should be made a statutory requirement in all these domestic violence laws in order to avoid unnecessary litigation and pain caused to the accused party.

The role of the protection officer is precarious under the Protection of Women from Domestic Violence Act, hence this provision should be removed. Most importantly, the trial under the Protection of Women from Domestic Violence Act, 2005 should be made in pursuant to the Evidence Act instead of the Criminal Procedure Code so that the sole testimony of women is not considered true but is backed by proper evidence.

*3rd year student, Bcom LLB (Hons.), Gujarat National Law University.

    [1]  Constituent Assembly Debates Vol. 1, Thursday, 19-12-1946.

    [2]  S. 3, Protection of Women from Domestic Violence Act, 2005.

    [3]  S. 2(g), Protection of Women from Domestic Violence Act, 2005.

    [4]  Soli Sorabjee, Is Verbal Abuse Domestic Violence?, 5-11-2006, The Times of India.

    [5]  S. 498-A of the Penal Code.

    [6]   (2010) 7 SCC 667.

    [7]  (2010) 7 SCC 667, 677, para 37.

    [8]  (2005) 6 SCC 281.

    [9]  2002 SCC OnLine AP 631 : (2002) 4 ALT 592 (DB).

  [10]  (2002) 7 SCC 414.

  [11]  (2014) 8 SCC 273.

  [12]  Arnesh Kumar case, (2014) 8 SCC 273, 276, para 4.

  [13]  243rd Law  Commission Report.

  [14]  243rd Law Commission Report.

  [15]  (2014) 8 SCC 273.