This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. This article explains what is domestic violence, what are the legal provisions regarding domestic violence in India and top domestic violence cases.

It has been published by Rachit Garg.

What is domestic violence 

Domestic violence is defined as a violent control exercised by one individual over another. It is also referred to as building control and terror in a relationship via various sorts of abuse. Torture can be psychological, sexual, economic, or physical. This is not merely a social issue; it is also a major violation of human rights, exposing the victim to health and social consequences. The United Nations defines it as “intimate partner violence,” which occurs when one person in a relationship uses threat, mental abuse, manipulation, trying to hurt, injury, or financial abuse to take control of the other, and whose victim can be anyone, irrespective of age, gender, race, sexual orientation, class, or belief.

Domestic violence is not limited to those who are spouses or partners; it may also comprise multiple ties that an individual is bound by inside a family. In India, for instance, the legal component has given it a broader connotation, including sisters, widows, moms, single women, and any woman residing in the same family. As a result, domestic violence covers both intimate partners and family members. According to Section 3 of the Protection of Women from Domestic Violence Act of 2005 (DV Act), any act or omission by the Respondent that damages, injures, threatens, or abuses physically, sexually, verbally, or economically constitutes domestic violence.

According to the Union Health Ministry’s National Family Health Survey (NFHS-4), every third woman in India encounters some sort of domestic abuse from the age of fifteen. It also said that 31% of married women have experienced physical, sexual, or emotional torture at the hands of their partners. The main concern is that only around 10% of these women reported violence. Clearly, this is a big issue that must be addressed, and women must understand their rights as well as how to defend them. To address such incidents, the Protection of Women from Domestic Violence Act of 2005 was enacted.

Types of domestic violence

We have previously discussed the four categories of violence covered by the Act. However, in Bhartiben Bipinbhai Tamboli v. State of Gujarat 2018, these categories were further clarified. It was believed that:

Sexual violence

Sexual violence is a type of physical force that involves any act in which a woman is compelled to engage in any undesired, dangerous, or demeaning sexual behavior. It includes calling her  names, harming her by using objects and weapons during sex, and even forcing her to have sex by a spouse or intimate partner with whom she has consensual sex.

Physical violence

Physical violence is the use of physical force against a woman so that she sustains bodily harm or injury. Physical assault, criminal intimidation (threaten to cause harm), and criminal force (use force against a person to injure him/her) in the form of beating, stomping, punching, abandoning the aggrieved party in a dangerous place, using weapons to intimidate her, pressuring her to leave her matrimonial home, injuring her children, using physical force in sexual situations, and so on.

Emotional violence

Not all abusive relationships are violent and result in physical harm. Many women are subjected to emotional abuse, which is as damaging as physical violence. It involves loud names ­calling, accusing, isolating, scaring, displaying domineering behaviour, insulting or constantly criticising her.

Economic violence

Economic violence is defined as, a woman not being supplied with enough money by her spouse to support herself and her children by purchasing clothes, food, medications, and so on. It also involves prohibiting women from working. Apart from that, forcibly evicting her from her home by not  paying her rent, denying her of financial resources to which she is entitled  under any custom or law, and limiting her access to shared domestic resources also come under this category. It also involves selling or alienating her movable or immovable assets, jewellery, shares, stocks, and other items in which she has a stake.

Laws that deal with domestic violence cases

In India, there are various laws that specifically address the safety of married women from their partners and their partners’ families.

Protection of Women Against Domestic Violence Act, 2005 

This is a law passed by the Indian Parliament to safeguard women from domestic violence. It outlaws a wide spectrum of bodily, sexual, emotional, and financial abuse against women, all of which are explicitly defined by the Act. It protects women from men of the family. The Act’s scope includes not just the protection of women who are married to men, but also women who are in live-in relationships, as well as family members such as grandparents, mothers, and so on.

The Dowry Prohibition Act, 1961

This is a criminal code that punishes the gift and receiving of dowry. The Dowry Prohibition Act of 1961 outlaws the practice of dowry. If a person provides, accepts, or even asks for dowry, they can be imprisoned for a half year (i.e. for 6 months) or fined up to 5,000 rupees.

Section 498A IPC

This is a criminal law that applies to spouses or husband’s relatives who are cruel to women. Harassment for Dowry by relatives of the husband or by the husband is a crime under Section 498A of the Indian Penal Code 1860 (IPC). Harassment may take many forms, both physical and mental. Although Marital Rape is not a criminal offence in India, coerced sex with one’s wife might be deemed as ‘cruelty’ under this Section. Section 498A covers a wide range of topics. It also encompasses any and all purposeful behaviour against a woman that forces her to commit suicide or places her life, limb, or overall health in danger. In this context, health refers to both the physical and mental health of women.

How domestic violence laws are misused

Domestic violence laws are frequently used to harass the spouse or any other family member claiming under him, ensuring that he caves to the unlawful demands of the so-called victim rather than vice versa. Unfortunately, there have been a number of examples where Section 498A has been utilised primarily as a tool for blackmailing. It is often abused as a weapon for exacting retribution on whole families because under this clause, police can arrest anybody named as a tormentor in a married woman’s complaint, as ‘cruelty’ in marriages has been declared a non-bailable offence. Following that, bail under such circumstances is refused as a basic right.

As a result, many times, elderly parents and other relatives are wrongly accused of physically and emotionally tormenting the so-called victim, producing unnecessary tension that may result in bad health for the elderly parents and physical and mental pain for the accused’s family members.

Even if the charge is proven false, the accused is humiliated by the society. Poor and uneducated women may have endured the torment of their husband’s family, but many educated women now use this conduct for illegal motives.

The legislation was rewritten, significantly weighted in favour of women, on the assumption that only really offended women would come forward to file a complaint and that they would always speak the truth.

Landmark domestic violence cases in India

Lalita Toppo v. the State of Jharkhand, (2018)

Facts of the case

In the case of Lalita Toppo v. the State of Jharkhand and Anr. (2018), which was heard by the Supreme Court of India, the Complainant, who was not the Respondent’s legally wedded wife, approached the Court to obtain maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005, supposing that she will not be allowed to maintenance under Section 125 of the Code of Criminal Procedure, 1973.

In this instance, the Appellant was in a live-in relationship, with whom she had a kid. When the couple got separated, the Appellant sought support from her spouse, for which the Gumla Family Court allowed, giving her Rs 2000 per month and Rs 1000 to her child. The Appellant filed an appeal in the High Court, which found the family court’s ruling to be incorrect and ruled in favour of the partner. The Appellant then went to the Supreme Court.

Issue involved in the case

• Whether a live-in partner can seek maintenance under the Domestic Violence Act, 2005?

Judgement given by the Court

In the Supreme Court a three-judge Bench composed of the then- CJI Ranjan Gogoi, Justices U.U. Lalit and K.M. Joseph observed that a live-in partner will be obligated to even more relief than that envisaged by Section 125 of the Code of Criminal Procedure, 1973. Making reference to the provisions of the Domestic Violence Act, the bench noted that the petitioner in the case would have a remedy to seek maintenance under the Act despite the fact that she is not the legally wedded wife and thus not obligated to be maintained under Section 125 of the Code of Criminal Procedure.

It was also observed by the Court that domestic violence, according to the provisions of the Domestic Violence Act, also includes economic abuse.

Inder Raj Malik v. Sunita Malik, (1986)

Facts of the case

In this case, Sunita Malik(Complainant) and her husband, Inder Raj Mailk(Respondent), were married. To extract more and more money and articles, the Complainant Sunita was treated cruelly, beaten, starved, and abused by her husband and in-laws after marriage, particularly during festivals.

One day, she was tortured physically and mentally to the point of fainting in her matrimonial home, but no doctor was called for her medical checkup.

Sunita Malik was threatened by her mother and brother-in-law with death and kidnapping unless she compelled her parents to sell their property in Hauz Qazi. As a result, it was discovered that the Complainant, Sunita Mailk, was treated cruelly and physically tortured by her husband and in-laws. Sunita Malik was harassed in order to force her or anyone associated with her to meet an illegal requirement for movable and immovable property.

Issues involved in the case

• Are Section 498A of the Indian Penal Code, 1908, and Section 4 of the Dowry Prohibition Act, 1961, subject to the Double Jeopardy provision of Article 20(2) of the Indian Constitution?
• Is Section 498A of the Indian Penal Code, 1908, ultra vires?

Judgement given by the Court

In this particular instance, the Delhi High Court had to decide whether a person could be convicted under both Section 4 of the Dowry Prohibition Act and Section 498A of the Indian Penal Code. The Court held that an individual can be convicted under both Section 4 of the Dowry Prohibition Act, 1956 and Section 498A of the IPC without facing double jeopardy. The Court held that Section 498A, IPC, and Section 4 of the Dowry Prohibition Act are distinct, since, under Section 4 of the Dowry Prohibition Act, mere demand of dowry is subject to punishment, whereas, in Section 498A, an act of cruelty committed against a newly wedded woman is punishable. As a result, it is possible to conclude that a person is subject to prosecution under both Section 4 of the Dowry Prohibition Act and Section 498A of the Indian Penal Code.

Hiralal P. Harsora and Ors v. Kusum Narottamdas Harsora and Ors, (2016)

Facts of the case

In this case, The plaintiffs were Pushpa Narottam Harsora and Kusum Narottam Harsora, a mother-daughter duo. They filed a complaint against Pradeep (son/brother), his wife, and her two sisters, alleging that the four of them subjected them to domestic abuse.   The Respondents urged the Metropolitan Magistrate to release Pradeep’s wife and two sisters/daughters since, according to Section 2(q), a complaint may only be filed against an “adult male.” The Respondents’ application was denied.

The Bombay High Court ruled that Section 2(q) of the aforementioned Act should be read in light of the definitions contained in Sections 2(a), 2(f), and 2(s) of the Protection of Women from Domestic Violence Act. Essentially, this assured that a complaint could be lodged against female family members as well as the “adult male member.” However, a complaint alleging domestic abuse cannot be brought primarily against the female members of the household. A co-Respondent must be an adult male. As a result, the Court did not read down the term “adult male person.” After this the mother and daughter duo filed a writ petition in the Supreme Court.

Issue involved in the case

• Whether females can be liable under the Domestic Violence Act, 2005?

Judgement given by the Court

The Supreme Court struck down adult male from the concept of ‘Respondent,’ holding that it is not founded on any intelligible differentia having a rational nexus with the purpose sought to be attained. In the same instance, the Supreme Court clarified that women and non-adults are among the people who can seek redress under the DV Act. The word “Respondent” in Section 2(q) or those who can be considered perpetrators of violence against women/against whom remedies under the DV Act are enforceable cannot be limited to the phrase “adult male person” in Section 2(q). As a result, remedies under the DV Act are accessible even against female members and non-adults.

Sandhya Wankhede v. Manoj Bhimrao Wankhede, (2011)

Facts of the case

In the case of (Sandhya Wankhede v. Manoj Bhimrao Wankhede), after getting married in 2005, the Appellant Sandhya lived with R1, R2, and R3 for nearly a year, which caused problems in her marriage. She filed a police report against her husband under Section 498A of the Indian Penal Code for assaulting her. She also filed an application against all three Respondents, which the First Class Judicial Magistrate granted, directing R1 to pay the monthly maintenance. All Respondents were also barred from trying to evict the Complainant from her matrimonial home. Criminal appeals and applications filed by R1 before the Sessions Judge and the High Court were denied. R2 and R3 applied to the First Class Magistrate, but their request was denied. They filed an appeal, claiming that women cannot be considered Respondents in DV proceedings. The Court agreed and overturned the order, enabling Appellant to be evicted from her marriage home, which was solely owned by R2. As a result, it was not a “shared house.” However, the Court compelled R1 to offer separate lodging or make further payment for it as an alternative. The Appellant’s appeal in Sessions Court was replied based on the decision that “females” are not included within ‘Respondents.

The HC similarly took a similar stance, deleting R2 and R3’s names from the proceedings and ordering the Appellant to quit the matrimonial home. Hence this appeal was made.

Issue involved in the case

• Whether a complaint can be filed under the Domestic Violence Act only against an adult male person and not against the husband’s female relatives, i.e. mother-in-law and sister-in-law?

Judgement given by the Court

However, in the aforementioned instance, the Supreme Court resolved the question by ruling that the provision to Section 2(q) that doesn’t exclude female relatives of the husband or male partner from the scope of a complaint that can be submitted under the Domestic Violence Act. As a result, complaints can be filed not only against the adult male person, but also against the adult male’s female relative.

V.D. Bhanot v. Savita Bhanot, (2012)

Facts of the case

• The parties in this case got married on 23rd August 1980 and on 4th July 2005 the Respondent(wife) was driven out of her matrimonial home.
• Thereafter Respondent filed a petition to the Magistrate under Section 12 of the DV Act.
• The Magistrate granted interim relief of Rs 6000 to the wife  and subsequently passed a protection/residence order under Section 18 and 19 of the DV Act protecting the right of The Respondent wife to reside in her matrimonial home in Mathura.
• Meanwhile, the husband, who served in the armed forces, retired and filed an application to remove his wife from the government housing.
• Taking this into account, the Magistrate directed the petitioner to enable his wife to reside on the first floor of her marital house or, if that is not practicable, to find alternative lodging close to her matrimonial home or to pay Rs 10,000 in rental costs.
• She preferred an appeal since she was dissatisfied with the Magistrate’s decision.
• The appeal was denied, and the Additional Sessions court reasoned that “because the applicant left the married house on 4.7.2005 and the Act came into effect on 26.10.2006, the claim of a woman living in a domestic relationship or residing together prior to 26.10.2006 was not maintainable.”
• The HC investigated this legal issue in response to an appeal. and it directed that the action be maintained even though it was taken prior to the Act’s coming into effect.

Issue involved in the case

• Whether The Domestic Violence Act, 2005 also includes the victims of domestic violence prior to 2005?

Judgement given by the Court

The Supreme Court agreed with the reasoning given by the HC and held that:

“In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the Domestic Violence Act, 2005.”

Given the Respondent’s old age, the Court ordered the petitioner to furnish her with an appropriate portion of his house as well as 10,000 rupees per month for her maintenance. The Act’s goal was to safeguard women from domestic violence, hence it should be read in favour of women who are victims of domestic abuse. The Legislature’s intention was to cover women who’ve been victims of domestic abuse prior to the Act’s enactment. This was obvious from the Act’s definitions of the phrases “aggrieved individuals” and “domestic relationship.” The Domestic Violence Act,2005 is a civil remedy, and the criminal penalties given in the Act cannot be committed prior to the Act’s entry into effect, hence enforcing the Act retroactively does not violate Article 20(1) of the Indian Constitution.

Rajesh Kumar and others v. the State of U.P, 2017

Facts of the case

In this case, Rajesh Sharma (Appellant) and Sneha Sharma (Respondent) married on November 28th, 2012. Sneha’s father gave the dowry to the best of his ability, but the Appellants were not pleased. They began harassing or beating the Complainant and demanded Rs. 3,00,000/- in dowry and a vehicle. Since the Complainant’s pregnancy had been aborted, the Appellant had left her at her house. On that occasion, the Appellant was called under Sections 498A and 323 of the IPC. The wife filed a lawsuit against the Appellant and his family. She claimed that her husband demanded dowry when she was pregnant and that she was tormented by her spouse and his family members, resulting in the termination of her pregnancy.

The Appellants petitioned the High Court to have the summons cancelled, but the Court denied their request. As a result, the Appellants filed an appeal in the Supreme Court against the High Court’s decision.

The Appellants, on the other hand, had no intention of making dowry demands.

Issues involved in the case

• Is there a necessity to curb the tendency to involve all members of the family in resolving a marriage dispute?
•  Is Section 498A of the IPC being abused or not?

Judgement given by the Court

In this case, it was determined that in order to protect the innocent person, i.e., the husband as well as their relatives, the Court directed the formation of a “Family Welfare Committee” to deal with Section 498A of the IPC, and that no one would be arrested until the committee provided justice to the Complainant. “The committee’s primary goal is to separate genuine cases from fraudulent ones.” To provide assistance to victims of false complaints. The accused who wasn’t in the jurisdiction cannot be excused from making personal appearances in court and must attend through video conference.”

The Supreme Court has recognised that Section 498A of the IPC is being severely misapplied. In the current instance, the Supreme Court directed the prosecution of the dowry-related offences and ordered that the harassment or persecution of the husband and married man be halted. Furthermore, the goal of this committee is to provide for the restoration of innocent people’s human rights.

“The spouse and his family members may have different points of view in the conflict, and arrest and court remand are not the solution.” The ultimate goal of every judicial system is to punish the wicked while protecting the innocent.”

Arnesh Kumar v. the State of Bihar & Anr, 2014

Facts of the case

In this case, Arnesh Kumar (Appellant) and Sweta Kiran (Respondent) were married on July 1, 2007. Sweta Kiran claimed in Court that her mother-in-law and father-in-law sought Rs. 8 lakhs, a Maruti car, an air conditioner, a television set, and other items, and that when this was brought to Arnesh Kumar’s attention, he backed his mother and threatened to marry another woman. She further claimed that she was evicted from her matrimonial house since the dowry demand was not met. Arnesh Kumar refuted the charges and filed an anticipatory bail plea, which was initially dismissed by the learned Sessions Judge and then by the High Court. As a result, Arnesh Kumar has filed a Special Leave Petition with the Supreme Court.

Issues involved in the case

1. Is it required for a police officer to arrest someone in response to a complaint if that person is suspected of committing a cognizable offence?

2. What remedies are available to a person if a woman uses section 498A of the IPC to her advantage?

3. Should the Appellant be granted anticipatory bail?

Judgement given by the Court

The Supreme Court granted the Appellant interim release under specific restrictions. The Apex Court said that “Section 498A is a cognizable and non-bailable offence and has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.” According to the “Crime in India 2012 Statistics,” 1,97,762 people were arrested in India in 2012 for violating Section 498A of the IPC. The charge-sheeting rate in instances under Section 498 A of the IPC is as high as 93.6%, but the conviction rate is barely 15%. This data clearly demonstrates how this part has been abused. The most straightforward approach to harassment is to have the spouse and his family imprisoned under this clause.” To discourage unwarranted arrests of accused, the Apex Court issued some required directives for Police to follow before detaining a person.

Bibi Parwana Khatoon v. State of Bihar, (2017)

Facts of the case

In this case, a woman was killed by setting her on fire by her husband and her family, according to the circumstances of this case. A case was filed against the husband and his family in which the district court and the High Court ruled against them. After which, the victim’s sister-in-law and brother-in-law appealed the conviction to the Supreme Court.

Issue involved in the case

Whether the Appellants had a common intention as the offender?

Judgement given by the Court

After hearing the case and reviewing the evidence, the bench concluded that both the lower courts erred in law in determining that the charge under Section 304B read with Section 34 of the Indian Penal Code, 1860 held against the current Appellants.

Based on the information presented, it cannot be proven beyond a reasonable doubt that the current Appellants, the deceased’s sister-in-law and brother-in-law, abused the victim in exchange for any such dowry demand.

Neither can it be proven, based on circumstantial evidence, that the Appellants had any common intention with the deceased’s spouse in the commission of the crime.

Furthermore, it is abundantly obvious from the documented evidence that they formerly resided in a separate village.

Kamlesh Devi v. Jaipal and Ors., (2019)

Facts of the case

In this case, the petitioner Kamlesh Devi stated that she and the Respondents are family members of the same family and they’ve been residing in the same premises for a long time. The petitioner’s husband is a former BSF officer, and she has three kids, Urmila, Anusaya, and Gaytri. Anusaya and Gaytri are the petitioner’s unmarried daughters who attend Krishna Nagar College for their education. Furthermore, Respondents have formed a gang and are quarrelsome individuals, and whenever the Petitioner’s daughters, Anusaya and Gaytri, went to their college, Respondents Jaipal, Krishan Kumar, and Sandeep followed them and taunted them, as well as engaged them in obscene behaviour.

Sube Singh, the petitioner’s husband, also filed a complaint with the Sarpanch of Village Gaud against the Respondents, after which the Respondents apologised in writing on 5.8.2008 in the presence of respected members of the village. They then returned to normalcy for a short period of time before resuming their obscene behaviour. As a result, having exhausted all other options for protection from domestic abuse, the complaint was filed.

After examining the provisions of the Act, the Trial Court determined that none of the witnesses on record demonstrated any fact to the effect that the Respondents and the petitioner were living in a shared home and that the Respondents had committed domestic violence against them.

The trial court also ruled that no violence of any sort was claimed within the joint household’s grounds. The case was dismissed by the Ld. Magistrate. An appeal filed with the High Court was likewise rejected.

Issue involved in the case

Whether the Respondents are liable for domestic violence?

Judgement given by the court

The Supreme court said that the High Court correctly concluded that the elements of domestic violence were completely missing in this case. The petitioner and Respondents are not residing in the same residence together. The responders are allegedly family members, according to a vague accusation. There isn’t even a murmur between the Respondents and the petitioner. They seem to be neighbours. Hence, the special leave petition was denied

Ajay Kumar v. Lata @ Sharuti, (2019)

Facts of the case

In this case, the Appellant Lata is the Respondent’s brother-in-law, i.e. his brother’s widow, and they used to live together in a Hindu Joint Family Property. According to the lawsuit filed in the Supreme Court, there seem to be no rules in the Act that requires the Appellant to pay maintenance to the Brother’s wife. Only if they were in a business partnership would he be obligated to pay the maintenance.

Section 12(1) of the DV Act states that a person may approach a magistrate for relief or financial relief to compensate for loss sustained by her or her child as a result of domestic violence, however, this does not include the order of maintenance under Section 125 of the Code of Criminal Procedure or any other law. The lady said that after her husband died, she was not permitted to dwell in her matrimonial house and was driven out with her kid, and she now has no means of support for herself and her child.

Issue involved in the case

• Whether brother-in-law comes under the definition of “Respondent” under Section 2(q) of the DV Act?

Judgement given by the Court

In this case, the Supreme Court ruled that under the Domestic Violence Act, 2005, maintenance to a widow can also be provided by a brother-in-law. The Supreme Court rejected the Appellant’s allegation that Section 2(q) of the Protection Women from DV Act defines “Respondent” as any adult male individual who is or has been in a domestic relationship with a partner against whom the remedy is sought. The Supreme Court drafted a domestic connection between the woman and her brother-in-law, stating that the brother-in-law and the woman are a joint family.

Conclusion

The Domestic Violence Act, 2005 and the provisions of the Indian Penal Code, 1860 are a highly promising piece of legislation that combines civil and criminal punishments to give effective remedies to women who become victims of domestic violence. The statute includes provisions for protection officers, medical facilities, and free of charge orders, among other things, to assist aggrieved women in defending themselves and their loved ones. However, the Act does not come without flaws. Clearly, the Act’s implementation has to be strengthened. According to Human Rights Watch, police frequently do not submit a First Information Report (FIR), which is the first step in commencing a police investigation, especially if the aggrieved individual is from a low-income or socially disadvantaged part. It is also true that the DV Act has failed to address the issues that women and men confront when it comes to domestic violence, and the law is frequently misapplied when it is employed. Society needs more gender-neutral laws that treat men and women equally in situations of domestic violence, rather than instilling dread in the hearts of innocent people, as most men do and giving the other gender an extortion weapon. On the surface, the DV Act appears to be gender prejudiced. The DV Act should be changed with more gender-neutral clauses to prevent its misuse and to promote gender equality and fair justice.

References

• https://blog.ipleaders.in/protection-of-women-from-domestic-violence-act/ 
• https://blog.ipleaders.in/analysis-of-provisions-related-to-cruelty-in-marriage/ 
• https://lexspeak.in/2013/06/misuse-of-domestic-violence-act/ 
• https://www.amicusx.com/post/_498a 

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