Domestic Violence Laws: Understanding Legal Framework

Domestic violence is a serious issue that affects countless individuals and families in India. In order to address this problem, the Indian government has put in place a comprehensive legal framework to protect victims and hold perpetrators accountable. Understanding the legal framework for domestic violence laws in India is crucial for anyone who may be affected by this issue.

Domestic Violence Act, 2005

The cornerstone of the legal framework for domestic violence in India is the Protection of Women from Domestic Violence Act, 2005. This landmark legislation defines domestic violence and provides a wide range of protections for victims, including the right to obtain protection orders, residence orders, and monetary relief.

Under this act, domestic violence is broadly defined to include physical, sexual, emotional, and economic abuse. It also covers harassment, stalking, and other forms of abuse that may not fit traditional definitions of violence. This broad definition ensures that victims are protected from all forms of abuse, regardless of how they are perpetrated.

The United Progressive Alliance administration was in power when the Protection of Women against Domestic Violence was passed on September 13, 2005. Household orders, custody orders, protection orders, and financial relief from a respondent are the four support systems that this civil legislation attempts to offer to women who have experienced domestic abuse.

Laws Prior Domestic Violence Act, 2005

The Indian Penal Code (IPC) 1860 -sections 304B (dowry death) and 498A (cruelty by husband or his relative) and now known as Section 80 and Section 84 of the Bharatiya Nyaya Sanhita,2023, India was the only source of relief available to women before Protection of Women against Domestic violence,2005.

What is Dowry Death?

First we have to understand what is Dowry? It has different meanings in the personal laws as we know that India has many or different religions such as Hindu, Muslim, Jews, Christian and Parsi. “Dowry is defined as the property or gift which is given or taken by the parties within the marriage.” When we talk about the Dowry under the Hindu Marriage Act, 1955, it was believed that the marriage is Vivaha Samskara and if there is dowry involved in the marriage as per Manusmiriti, III,3 i.e. Kanyasulka by the bridegroom by the bride’s side then comes under Asura marriage which is not lawful in nature according to Hindu law. But there was the voluntary practice of giving gift by the father of the bride to the groom side as the token of respect or the gift which is known as Stridhan which is solely the property of the bride (Mitakshara,II,11) in reference to the Hindu Marriage Act, 1954, India, Section 14. And Sampradan which is Sanskrit mantra means ‘adorned and ornamented and properly dressed I give thee to your Lord.’

It is difficult to say when this practice came into the picture. But it is clear that it was seen in the medieval period and Rigorous caste system, patriarchal and polygamy had aggravated the dowry problem in the society. There were many movements for gender Justice such as the movement for the prohibition of sati system by Raja Ram Mohan Roy and foundation of All India Women’s Conference (AIWC) in 1927, this organization worked towards women’s suffrage, legal rights, and education. But it was neither widespread nor overwhelming to address the issue of Dowry. In 1928 Gandhiji wrote to emphasise the need for the voluntary action to fight against these evils.

Harijan dated: May 25,1936  said, “A strong public opinion should be created in condemnation of the degrading practice of dowry and young men who soil their figures with such ill-gotten gold, should be excommunicated from the society. Parents of girls should cease to be dazzled by English degrees and should not hesitate to travel outside their little castes and provinces to secure true gallant young men for their daughters.” Finally after Independence, the legislature passed an act called Dowry Prohibition Act, 1961 to prohibit the practice of dowry in the society.

Background of Dowry Prohibition Act

In 1939, the first attempt was made to prohibit the practice of dowry by passing the first legislature called Sindh Deti Leti Act. The act declared “No person shall give or accept or agree to give or agree to accept any payment as a part of contract of any betrothal of marriage.” After this act other states also made their own acts and implemented the same. Bihar had its Bihar Dowry Restraint Act, 1950 and Andhra Pradesh had its Andhra Pradesh Dowry Prohibition Act, 1958. The punishment for taking dowry was six months imprisonment under both the acts. However, both the legislation failed to achieve the intended objectives because of inherent loopholes of narrow definition of the dowry.
Therefore in view of the rapidly increasing issue, the need for the law occurs. The central government under the concurrent list which will be the subject to the amendments of the state legislature by the consent of the president made the law for the same.  Joint committee was formed to discuss the details related to the bill. Prime Minister Jawaharlal Nehru observed when the bill was piloted on 6 May 1961:

“Legislature cannot by itself normally solve the deep rooted social problems. One has to approach them in other way too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as legal sanctions behind it which help public opinion to be given a certain shape”  

When the bill was presented before the parliament, two different views was seen first which supported the bill and other one which was not much satisfied by the Bill of Dowry Prohibition Bill, 1959. The question was raised on the Voluntary gift on which  SHRI A. K. SEN said,

“If I cannot give voluntarily some property of mine to my daughter or to my son which is not in consideration of marriage or anything else, then it will be an end of the guarantee under article 19 of the Constitution. So no court will uphold a restriction which prohibits a father from making a genuine gift.”

In support of the Bill, Shri Bhupesh Gupta well said that- 

“There has been a very widespread agitation in favour of measures such as this. After all, as far as we are concerned, we Communists, Marxism teaches us that the stage of civilization is sometimes judged by the status women enjoy, and somehow or other we have been living in these modern times when many restrictions and disabilities come in the way of emancipation of the womenfolk. That is not to say that by passing this measure we can achieve this thing. Social emancipation calls for economic and other emancipation, and I suffer from no illusion on this score. Yet such disabilities have got to be removed.”

Important Facts of Dowry Prohibition Act

1. The Dowry Prohibition Act was enacted on May 20, 1961, and it came into effect on July 1, 1961. 
2. The primary objective of the Act is to prohibit the giving or receiving of dowry, which includes any property or valuable security given directly or indirectly as a consideration for the marriage.
3. The Act aims to protect women from the harassment and abuse often associated with demands for dowry. It provides legal recourse for women who face dowry-related violence or harassment.
4. The Dowry Prohibition Act 1961 Section 2 defines dowry as:  “Dowry means any property or valuable security which is given or agreed to be given directly or indirectly by – (a) by one party in a marriage to the other party in the marriage.; or (b) by the parents of the parties to the marriage or by any other person to either party to the marriage or to any other person; before or after the marriage as consideration for the marriage of the said parties, but the persons does not include dowry or mahar to which Muslim personal law applies.”
5. Dowry Prohibition Act Section 3 also specifies that the Gifts that are provided to the bride or groom at the time of marriage when no demand is made for them are exempt from the penalty of giving or receiving dowry.
6. The Act makes both giving and taking of dowry an offense. It empowers the courts to take cognizance of offenses (the police officer does not need the warrant to arrest the offender) under the Act, which are non-compoundable (cannot be settled between parties) and non-bailable (It is not matter of right, the offender cannot apply for bail in the police custody before the start of the trail of the case).On the cognizance Shri Bhupesh Gupta said- “We said that it should be made cognizable or some such thing. I asked the hon. Minister: “When you heard your driver telling you that so many marriages in violation of the Sarda Act, 1929 ( It was the Act related to the Child Marriage Restraint which also known as Sarda Act because of famous personality initiate this act, Harbilas Sarda)  were taking place, did you file a petition?” He said “no”. I do not blame him for that. Nobody files a petition for that. That only shows the need for making it cognizable. Otherwise no punishment will be given.”
7. The burden of proof lies on the accused to show that the dowry was not given or taken in connection with the marriage.

New Provision in IPC

As the cases were increasing rapidly, for better implementation and providing the remedy to the victims, a new provision was added in the IPC after the 1983 amendment. This amendment inserted new provision Section 498A of the Indian Penal Code (IPC), 1860 (Section 84 of Bharatiya Nyaya Sanhita, 2023).This section defines the offense of “Cruelty” against a married woman. The term “cruelty” here includes both physical as well as mental cruelty. Physical cruelty refers to any act that causes bodily harm or danger to life, limb, or health. Mental cruelty includes any conduct that is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb, or mental health as mentioned in the case of Kaliyaperumal v. sate of tamilnadu,2003 Cri. L.J. 4321 (S.C.).

It states that whoever, being the husband or relative of the husband of a woman( V. Seevetha v. State by Inspector of Police(2009) 3 Cri L.J. 2974 (S.C.)) , subjects her to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine. The offense under Section 498A is cognizable, non-bailable, and non-compoundable.

Misuse of the Section 498A of the Indian Penal Code (IPC), 1860

Just as every coin has two sides, so too does every rule have its uses and its misuses. While the anti-dowry laws have been an advantage for women, they have also proven to be problematic for men. Not all dowry cases that women file are genuine, and in over 40% of cases, the accusations made by women are false.

Only 15% of those accused were found guilty in 2012, despite the fact that almost 200,000 people—including 47,951 women—were detained for dowry charges, according to data from the National Crime Records Bureau. Through this data we can observe that the law was misused by women at a large level.

Judges and the courts play a vital role in the interpretation of the laws and act as the protector of the laws from misuse. In the case Lalita Kumari v. Govt. of UP AIR 2012 SC 1515. The Supreme Court made some guidelines and ruled that arrests could not be made without a magistrate’s approval.

Background of the PWDVA, 2005

In the 20th century, domestic violence against women started to come up in discussions in society. Despite the fact that many believe it only affects a small number of women who are opposed to family norms. It coincides with the growth of the Human Rights jurisprudence indicating that the number of cases involving women exposed to domestic abuse is rising, garnering public attention and leading to several policy initiatives. Additionally, policymakers believe that the legislature must be brought in to support victim’s stories of violence and provide women rehabilitative assistance.

Global Contribution

The protection of women from domestic violence necessarily embarrassed as a human rights issue and is a serious threat to social development at the world level i.e. the United Nation Committee on the Elimination of All Forms of Discrimination. Against women, which came into force in 1989, recommended that the state party should make the laws and the policies to protect the women against violence especially occurring in their own family.

It was further recognised in 1993 under the World Conference on Human Rights at Vienna. Despite these steps taken by the government and setting up the Women’s Commission, it was seen that many women are still fizzling out these miserable things. The problem is that the majority of the women are unaware and ignorant of the protective laws or even their existence.

In India Context

India being the signatory country of the CEDAW, the Government of India passed a bill on the Protection of women from domestic violence in 2001, which was introduced in the Parliament in the Budget session of 2002.

The idea to introduce this law was first given by Dr. Murli Manohar Joshi (Human Resource Development Minister) on the occasion of women’s international day (March 7, 2001). He said, “The Government is hoping to introduce new legislation to tackle the widespread problem of violence against women with the changes in the existing laws. Dr. Joshi expressed concern at the constantly declining sex ratio, now standing at 927 females to 1000 males, and. the growing incidence of female foeticide.”

Smt. Usha Narayanan also made remark while addressing on the International Women’s day, she said-

“To build a new society we need, apart from green revolution, liberalisation and globalisation, a social revolution also and liberalisation of minds towards greater gender equality. A step towards that goal would take us towards a new country for women.”

She said that by giving the example of the women protesting in Mexico against their husband related to the housework. The focal point of this protest was on the fact that housework is the duty of both the men and women.

Finally the protection of women from Domestic Violence Act, 2005,India,came into effect on 26 October 2006. As per this Act Section 3 , Domestic Violence means causing hurt, injury or danger to life, limb, health, safety, well- being whether mental or physical. This act include physical abuse, mental abuse, and sexual abuse, verbal and emotional abuse and also include economic abuse.

The law was broad in its definition such as “domestic relationship” includes not only married women, but also mothers, daughters and sisters.

The Act defines “Domestic Relationship” quite broadly. Domestic relationship means the relationship between two persons who live or have at any point of time lived together in a shared household (defined as a household where the victim lives or has lived in a domestic relationship. It can include a house owned or rented by the victim, the abuser, or jointly by both). It includes marriage (includes both the valid marriage and live-in relationship) and family members.

Conclusion

The Act aims to create a safer environment within households and provides a framework for addressing and preventing domestic violence.The legal framework for domestic violence laws in India is designed to protect victims and hold perpetrators accountable for their actions. By understanding the provisions of the Protection of Women from Domestic Violence Act, 2005, victims can access the legal remedies they need to escape abusive situations and rebuild their lives. It is important for all individuals to be aware of their rights under this legislation and to seek help if they are experiencing domestic violence.

Now, the Victims of domestic violence in India have access to a number of legal remedies to protect themselves and their children. These include protection orders, which prohibit the abuser from contacting or harassing the victim, as well as residence orders, which allow the victim to stay in their home without interference from the abuser.

In addition, victims can also seek monetary relief to cover medical expenses, lost wages, and other costs incurred as a result of the abuse. This financial assistance is crucial for victims who may be unable to work or support themselves due to the abuse they have suffered.

Incase, You wish to discuss, and talk on any such matter that, ‘You may need help with’. Feel free to contact us.  Our team at  www.legalwellbeing.in shall be happy to assist. We’ ll read more about the related legislation in context to domestic violence and laws.

Written by Ms. Tanishka Jain in assistance of the Team .

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Frequently Answer Questions

Q1. What is domestic violence?

Domestic violence includes physical, sexual, emotional, and economic abuse, as well as harassment and stalking, within intimate relationships.

Q2. What is the Protection of Women from Domestic Violence Act, 2005?

It is a landmark legislation in India that provides wide-ranging protections for victims of domestic violence, including access to protection orders, residence orders, and monetary relief.

Q3. What are the key provisions of the Domestic Violence Act?

The Act defines domestic violence broadly, ensures protection from all forms of abuse, and offers support systems such as household orders, custody orders, protection orders, and financial relief.

Q4. What were the laws prior to the Domestic Violence Act, 2005?

Before this act, the Indian Penal Code (IPC) provisions, particularly sections 304B (dowry death) and 498A (cruelty by husband or his relative), were the primary sources of relief for victims.

Q5. What is dowry death, and how was it addressed in the legal framework?

Dowry death refers to cases where a woman is killed or driven to suicide due to harassment over dowry. The Dowry Prohibition Act, 1961, aimed to prohibit the practice of dowry and protect women.

Q6. How has the Dowry Prohibition Act evolved over time?

Since its enactment, the Dowry Prohibition Act has undergone amendments to strengthen its provisions and address loopholes, including the introduction of Section 498A of the IPC.

Q7. What are the important facts about the Dowry Prohibition Act?

The Act prohibits the giving or receiving of dowry, defines dowry broadly, and makes both giving and taking dowry offenses punishable by law.

Q8. What is Section 498A of the Indian Penal Code, and how does it address domestic violence?

Section 498A addresses cruelty against married women, encompassing physical and mental abuse, and imposes penalties for such offenses.

Q9. Has Section 498A been misused, and what measures have been taken to address this?

Yes, there have been cases of misuse, leading to concerns about false accusations. Courts have implemented guidelines to prevent misuse and protect the rights of the accused.

Q10. What global and national efforts have been made to combat domestic violence?

Globally, domestic violence is recognized as a human rights issue, with various initiatives aimed at protecting women. In India, legislative measures like the Protection of Women from Domestic Violence Act, 2005, have been enacted to address this issue.