Domestic violence is one of the most prevalent and under-reported areas of cases in the Indian police, judicial and legislative systems. Even though there is an ever-increasing need to reform and add to the existing laws to prevent and punish instances of domestic violence in the country, in praxis, existing legislation is not adequately deployed in most parts of the country. Various forms of domestic violence, such as instances of dowry-related violence, according to the data collected and compiled by the National Crime Records Bureau (NCRB), points them, under the framework of the Dowry Prohibition Act, as cases with the lowest criminal conviction rates in the country at around 12% (The Swaddle, 2021).

There are a few pieces of legislation against domestic violence in independent India, mostly came through the ardent and relentless push for them by various movements and interest groups over the last many decades. Such the first significant legislation as a result to address domestic violence came in the form of the Dowry Prohibition Act (DPA) of 1961. More amendments and sections were added in the 80s and 90s, with the culmination of the last major legislation in the form of the Protection of Women from Domestic Violence Act (PWDVA) of 2005. This essay will take a brief look at the significant pieces of legislation to address various forms of domestic violence, such as DPA, Section 498A, Section 304B, and PWDVA, along with a few court cases of interest. 

Dowry Prohibition Act, 1961

Due to the prevalence of exchanging dowry in most parts of India, violence against women for more dowry from their families also increased. Such, one of the first pieces of legislation against domestic violence came as the Dowry Prohibition Act of 1961 aimed to reduce the ever-increasing cases of dowry-related deaths, including bride burnings and “accidental” kitchen deaths. Under the act, any exchange of dowry is punishable by up to 5 years in prison and fifteen thousand rupees in fine; but it does not include mehr for people falling under the Muslim Personal Law (Shariat). In the case of the prosecution, the act demands that the onus of proving oneself innocence promptly falls on the prosecuted themselves.

Due to the ineffective legislation and the lack of its tangible real-world effects out in the real world, a few amendments were made; notably, the addition of dowry-related cruelty & deaths and the abetment of suicide were made to the Indian Penal Code. Further, instead of outright prohibiting any exchange of properties during the marriage procedure, such as voluntary gifts from family members were deemed permissible as long as a comprehensive list of all the received gifts was documented. Regardless of the various amendments and orders to reduce the instances of exchanging dowry, it is still being practised; such related instances of violence are still prevalent in many parts of the country.

In their 1974 landmark report titled Towards Equality by Vina Mazumdar and Lotika Sarkar, the authors criticise the short piece of legislation for its acute shortcomings, writing, “[T]he major cause for the failure of the Dowry Prohibition Act, 1961 is that an infringement of the provisions of the Act is not made a cognisable offence. That the offences under the Act should be made cognisable was, in fact, suggested during the debate in Lok Sabha” (Mazumdar & Sarkar, 1974). The amendment, which expels gifts from the family members without the consideration for marriage from the act, dulls the purpose of the act in ways since the givers would not want to file a complaint for the sake of the bride, making it nearly impossible to prove that the presents were made in consideration for the marriage. In their article A Critique on Dowry Prohibition Law, 1961, the author argues that the loopholes in the act inculcating the new practise of moving control of the dowry in the form of gifts and land rights to the bride is given the same legitimacy as the practice of dowry by the state. Moreover, the act limits the period of time to prosecute dowry to seven years of marriage and does not account for the death of women due to domestic violence for reasons other than dowry (Pramila, 2015).

Section 498A

Section 498A of the Indian Penal Code (IPC) is a piece of legislation which renders ‘cruelty by husband or relatives of the husband’ cognisable and non-bailable offence under dowry-related harassment cases. 498A is meant to bolster the existing laws against dowry, and can penalise the prosecuted with up to three years in prison and a fine for any dowry related “harassment of the woman where such harassment is with a view to coercing her or any person related to 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” (Section 498A, 1983).

While the law has helped in reducing the number of dowry deaths in the country since its enforcement, the law is deemed controversial by certain groups with accusations of rampant misuse by ‘disgruntled wives’ seeking to punish their husbands and in-laws by basing their accusations on low conviction rates under the law. “When the average time period for a 498A case to reach its logical end is 6-8 years, it would be fallacious to draw conclusions relying on the percentage of conviction vis-à-vis total number of registered cases in the year. Further, one has to explore and acknowledge the structural infirmities of the Indian criminal justice system that affect the outcome of these cases both directly, and indirectly” (Doddanhatti).

Regardless, the law went through a dilution process when the Supreme Court, in the case of Arnesh Kumar v State of Bihar & Anr, passed guidelines for the arrest of the accused, such as obtaining the authorisation of the magistrate under Section 167, Cr.PC, under the law, which made it difficult to arrest, which then led to a steep decrease in the number of arrests under the law. The Court explains its position as, “[T]he fact that Section 498A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.” The courts and the legal system severely under-recognised the low conviction rate under 498A cases with the rampant “systemic bias, prejudice, corruption, and the socio-economic vulnerabilities of women litigants” under the current justice system.

Section 304B

Like 498A, 304B criminalises bride burnings and dowry deaths. Any harassment before the death of the woman within the first seven years of marriage comes under the purview of this section. It punishes both the husband and any relatives of him who harassed the woman or her relatives for dowry, and whoever commits the act of dowry death is to be punished with imprisonment for at least seven years or can be extended up to life.

Court Case Under DPA, Sections 498A & 304B

Reema Aggarwal vs Anupam and ORs on 8 January, 2004*

A case was filed against the husband, Anupam (respondent), on the basis of the report from the hospital regarding the deteriorated health conditions and cruelty inflicted on the wife, Reema (appellant). The husband and his parents were booked under Sections 498A and 304B for eliciting more dowry and trying to endanger the life of the wife by forcing an acidic substance on Reema. Based on the appeal filed by the counsel of the respondent, the session court acquitted the accused on the basis that the marriage between the appellant and the respondent was void since it was their second marriage each, and the wife of the respondent was still alive when the marriage occurred. 

But then the case moved to the Supreme Court, where the court revoked the judgement passed by the High Court. SC questioned the etymology of ‘husband’ and ‘marriage’ as found in the lexicon of law, and how it relates to Section 498A; they observed that the definition of ‘marriage’ while it requires strict observation when it comes to a civil suit, does not hold the same “when the question of curbing a social evil is concerned” (“Reema Aggarwal vs Anupam And Ors on 8 January, 2004.”). Since the intent of the Dowry Prohibition Act is to curb the practice altogether, in this case, under section 4 of DPA makes “the very demand of property or valuable security as a consideration for marriage” punishable. Further, the court critiques hiding under the “legalistic niceties” of the law claiming there existed no valid marriage, as it would render the purpose of the provision pointless, as “the rule of strict grammatical construction cease to be a sure guide to reach at the real legislative intent” (“Reema Aggarwal vs Anupam And Ors on 8 January, 2004.”). Here the court observes, “[I]t would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purpose enumerated in the relevant provisions Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC” (“Reema Aggarwal vs Anupam And Ors on 8 January, 2004.”) Such, even in the cases of cohabitation where there is exist no marriage as per the legal documents are concerned, the role and status as ‘husband’ and ‘wife’ should not be excluded from the purview of 304B or 498A IPC.

Protection of Women from Domestic Violence Act, 2005

Since the early 90s, groups such as Lawyers Collective have raised a need for new domestic violence laws on top of the existing ones like the Dowry Prohibition Act. After much deliberations with the various women’s rights groups and the National Commission for Women and raising concerns over proposed bills like Protection from Domestic Violence Bill, 2001, which favoured the preservation of family rather than granting protection for women from domestic violence and guarding their right to life, their right to reside in the shared household, or timeframe within which the proceeding should complete; it is in this circumstance that LC and other women’s rights groups took action and presented their legislation to NCW and GOI. Still, some changes were added to and subtracted from the proposed bill when it was made to the parliament, like “authorising the magistrate to take help from person involved in “promoting family welfare” in any proceeding under the Act is a provision that could lead to coerced reconciliation” (Jaising, 2009). Unlike the earlier criminal law legislation that was enacted to protect women from abuse relating to dowry in a domestic setting, the Protection of Women from Domestic Violence Act (PWDVA) is a civil law meant to address broad types of abuse and violence against women in a domestic setting regardless of their relationship with the abuser/accused – including emotional, sexual, verbal, and psychological abuse on top of physical violence. It is applicable within the boundaries of marriage or live-in relationships and outside of it. In the purview of the law, the abusers are written in gender-neutral terms – they can be both men or women relatives of the male partner.

The legislation provides women to apply for a protection order, monetary relief, residence order, free legal services under Legal Services Authorities Act, or to file a complaint under Section 498A. Further, it gives the right for the woman to stay in the shared house even if they have no ownership over it or to reside in a shelter home recognised by the Ministry of Women and Child Development in the state and to receive free medical help from medical facilities if there is a need for it with or without the supervision of the Protection Officer assigned to them.

While the language for the abuser is gender-neutral, one of the much-debated issues while building the law and after its implementation was the question of gender neutrality of the abused, but since the objective of the law was to curb the violence against women and due to the continued problem of gender inequality, Jaising in their article Review of the Campaign for a Law on Domestic Violence writes, “[T]he violence faced by women is a gendered phenomenon that reproduces and reinforces gender inequality, and hence, a gender-neutral law would defeat the purpose of a law on domestic violence” (Jaising, 2009).

Court Case Under PWDVA

Lalita Toppo vs the State of Jharkhand, 2018**

Lalita (appellant), who was not legally wedded to her former partner (respondent), filed a case against him under PWDVA for not being eligible for maintenance under Section 125 of the Code of Criminal Procedure, 1973. The couple had a child between them, and when they separated, the family court ordered the respondent to pay Rs 2000 per month to her and Rs 1000 to their child. For which, the appellant filed an appeal to the High Court, which rescinded the ruling of the family court and instead ruled in favour of her partner. Such, she appealed to the Supreme Court, which observed that the estranged spouse, the appellant, is entitled to maintenance in excess of what is stipulated under Section 125. The court ruled that this instance is economic abuse which falls under domestic violence even if they are not legally wedded since the act covers relationships outside of marriage as well.

Conclusion

The prevalent practice of domestic violence in India and the vacuum of law in that space for the longest time led to a drastic increase in it. While the earlier legislation like DPA and Section 498A & 304B looked to curb cases regarding dowry, it failed to address the root causes of it in the first place. On the other hand, newer legislation like PWDVA is a welcome change; it too went through a process of dilution under the gaze of elected policymakers under the argument to not disturb the traditional social fabric. Further, the implementation of the aforementioned laws is paltry at best, and the awareness of their existence and function remains obscure from the public, leading women to not use them to their full extent. The Protection Officers, medical care facilities, and shelter homes as stipulated by the law vary wildly from region to region, further slowing down any immediate and meaningful relief for the survivors.