The Supreme Court recently observed that Section 498A of the Indian Penal Code (now the Bhartiya Nyaya Sanhita) and the Domestic Violence Act, 2005, are among the most misused laws.
Section 498A of the Indian Penal Code:
Section 498A of the Indian Penal Code was introduced in 1983 to protect married women from being subjected to cruelty by their husband or his relatives.
Section 84 of the Indian Penal Code, 2023 (BNS) deals with this provision.
Punishment:
The offender may be imprisoned for up to three years and may also have to pay a fine.
Cruelty is defined as any deliberate conduct of such a nature as to drive a woman to commit suicide and is likely to cause serious injury or danger to her life, limb or health (whether mental or physical).
To file a complaint:
The complaint can be filed by the victim of the crime, or any person related to her blood, marriage or adoption and if there is no such relative, a public servant notified by the state government can file the complaint.
The time limit: The complaint must be filed within three years of the alleged incident.
Non-cognizable and non-bailable: The offence is cognizable and non-bailable, which means immediate custody of the accused is possible.
The Domestic Violence Act, 2005:
Objective:
The Protection of Women from Domestic Violence Act, 2005 was enacted to provide a comprehensive legal framework regarding the protection of women against domestic violence, including both physical and mental forms of violence in family situations.
Domestic violence:
The Act broadly defines domestic violence to include physical, emotional, sexual, verbal and economic abuse.
This includes harm or injury to a woman’s health or threats that involve coercion, harassment, and deprivation of resources or rights.
Scope and Coverage:
It covers all women involved in domestic relationships including wives, mothers, sisters, daughters and live-in partners.
It protects women from violence perpetrated by their husbands, male partners, relatives or other members of the household.
The right of residence:
The Act provides women the right to live in a shared household beyond their legal ownership or entitlement to the property.
Protection Order:
Victims of domestic violence can go to court, thereby preventing abuse or violence as well as resolving issues related to entering the workplace or residence of the victim or preventing any form of communication or contact with the victim.
Monetary Relief and Compensation:
Under this Act, women have been given the right to seek financial compensation for damages caused due to domestic violence (including medical expenses, loss of income or any other financial loss). Courts can also direct payment of maintenance to the victim.
Consulting and Support Services:
The provision of support services, including legal aid, counselling, medical facilities and shelter homes (under schemes such as the National Legal Services Authority), has been made mandatory for women seeking protection under the Act.
Speedy judicial process:
Timely procedure has been ensured for resolution of cases of domestic violence under this Act.
Magistrates are required to dispose of complaints within 60 days so that victims can get timely relief.
Role of non-governmental organizations (NGOs):
Acknowledging the important role of civil society, the Act allows NGOs and women’s organisations to register complaints and assist in providing protection and assistance to victims.
Factors contributing to domestic violence:
The patriarchal social structure:
Patriarchal norms are deeply rooted, perpetuating gender inequality, reinforcing men’s domination and control over women. This has led to the normalisation of violence as a means of asserting authority in households.
Cultural and social norms:
Domestic violence is tacitly accepted or ignored in various societies, especially when it occurs in private spaces.
Cultural beliefs often discourage women from speaking up or seeking help, leading to a cycle of abuse.
The economic dependency:
Financial dependence on male family members often forces women to endure domestic violence. A lack of economic autonomy limits their ability to leave abusive relationships or seek legal help.
Abuse of drugs:
Alcohol and drug abuse contribute significantly to domestic violence.
Addicted individuals may behave aggressively, resulting in physical or emotional abuse in families.
Lack of education and awareness:
Limited education and awareness regarding legal rights and support mechanisms promote domestic violence.
Psychological factors:
Issues such as anger management problems, loss of self-esteem or unresolved trauma can lead individuals to behave violently against their family members. Abusers can also justify their actions through distorted notions of control and authority.
Marital and family disputes:
Dowry violence remains an important factor in domestic violence. Disputes due to dowry demands or dissatisfaction with marriage often lead to emotional or physical violence against women.
Inter-generational transmission of violence:
Children who witness domestic violence in their homes are more likely to repeat the abusive behaviour in their relatives when they become adults, leading to a cycle of violence for generations.
Weak law enforcement and judicial delays:
Ineffective law enforcement, delayed justice, and lack of stringent punishment for perpetrators contribute to the recurrence of domestic violence.
Victims may feel discouraged from seeking legal protection due to fear of retribution or distrust in the system.
How to abuse legal remedies:
False accusations for personal gain:
The Domestic Violence Act, 2005 and Section 498A are sometimes misused by filing false complaints to harass husbands and their families.
These provisions are used for personal vendetta or to gain advantage in matrimonial disputes, including settlement of property, maintenance claims or fight over custody.
Pressure for a financial agreement:
In various cases, false cases are used to force husbands and their relatives to make large financial agreements or to pay alimony.
The fear of arrest or a protracted legal battle often forces the accused to give in to unreasonable demands.
Absence of immediate arrest and preliminary enquiry:
Section 498A is a non-bailable and cognizable offence, leading to the possibility of immediate arrest without the need for prior enquiry.
This provision has been misused to pressurise the accused resulting in wrongful detention or damage to his reputation even before conviction.
Social and psychological harm to the accused:
The stigma associated with allegations of domestic violence can cause irreparable damage to the social reputation, mental health and professional life of the accused.
Even if the accused is acquitted, he may have to face long-term consequences due to the negative perception related to the charges.
Judicial observations on abuse:
In various judgements, courts have acknowledged the misuse of Section 498A and the Domestic Violence Act.
In response, the judiciary has called for reforms, including the need for proper investigation before arrest and punishment for filing frivolous or mala fide cases.
Solution:
There is a need to establish a clear distinction between bailable and non-cognizable offences under the law. A thorough investigation should be done before any arrest is made.
Considering the extent of harm caused to women, the principle of proportionality should be applied while arresting family members.
Individuals should be held accountable for false and misleading complaints.
India must enact gender-just laws (including recognizing domestic violence against men) that promote equality and protect the rights of every individual, regardless of gender.
Establishing a legal framework to deal with discrimination, violence and economic inequalities is crucial for building an inclusive society.
