JUDICIAL TRENDS ON LAWS PROTECTING WOMEN AGAINST

DOMESTIC VIOLENCE IN INDIA

Doctrinal for the Academic Year of 2019

In partial fulfilment for the

Post Graduate degree (LL.M) in

Labour and Administrative Law

Awarded by

The TamilnaduDr.Ambedkar Law University, Chennai.

Submitted by
K.SHYAMALADEVI
PE18153

Guided by
Dr. M.RAJESWARAN
Principal

GOVERNMENT LAW COLLEGE

TIRUCHIRAPPALLI
2019
Dr.M.Rajeswaran Government Law College
Principal Tiruchirappalli

CERTIFICATE

I hereby certify that the doctrinal research paper entitled “JUDICIAL TRENDS ON

LAWS PROTECTING WOMEN AGAINST DOMESTIC VIOLENCE IN INDIA”

has been prepared by the candidate K.SHYAMALADEVI bearing the Reg. No:

PE18153 under my supervision and guidance and it is her bonafide work.

The subject on which doctrinal has been prepared is her original work and it has

not been previously the basis for the award of any degree, diploma, associateship,

fellowship or other similar title.

Place: Tiruchirappalli Dr. M.RAJESWARAN

Date: Principal
Government Law College
Tiruchirappalli
 DECLARATION

I, do hereby declare that the dissertation titled, “JUDICIAL TRENDS ON LAWS

PROTECTING WOMEN AGAINST DOMESTIC VIOLENCE IN INDIA”,

submitted to the Government Law College, Tiruchirappalli affiliated to The Tamilnadu

Dr.Ambedkar Law University in partial fulfilment of the LL.M degree is a record of the

original work carried out by me under the supervision and guidance of

Dr.M.Rajeswaran, principal, Government Law College, Tiruchirappalli, and this topic

has not formed the basis for the award of any degree or diploma, either in this or any

other University.

Place: Tiruchirappalli (Signature of the candidate )

Date: K.SHYAMALADEVI
PE18153
 ACKNOWLEDGEMENT

This doctrinal is the part of my (1year LL.M) journey in obtaining my master degree.
The writing of this doctrinal has been one of the most significant academic challenges, I
have ever has to face. But for the support, patience, and guidance of the following people,
I would not have completed this study. It is to them I owe my deepest gratitude.

Foremost I wish to place on record the great debt of gratitude I owe (almighty) the most
benevolent and merciful who blessed us with sufficient courage and capacity to carry out
and complete this study.

At this moment of accomplishment, first of all, I would like to express my sincere

gratitude to Prof.Dr.M.Rajeswaran, Principal, Government Law College,
Tiruchirappalli for having given me this opportunity to do this doctrinal research paper
at the post graduate level..

I bear the testimony to thank all, law students, My sincere thanks to them and I am very
obligated to them for their elderly assistance and guidance.

K.SHYAMALADEVI
PE18153
 TABLE OF CONTENT

S.NO CONTENTS PAGE NO.

1. CHAPTER 1 - INTRODUCTION
1.1 Introduction
1.2 Objectives of the study
1.3 Limitations of study 1-3
1.4 Review of Literature
1.5 Hypothesis
1.6 Methodology

2. CHAPTER 2 – ENACTMENTS &JUDICIAL

DECISION
2.1 CONSTITUTION OF INDIA
a ) preamble
b ) Fundamental Rights
4 - 17
i. Equality
ii. Right to Life
c ) Directive principles of state policy
d ) Fundamental Duties
2.2 INDIAN PENAL CODE , 1860
a ) cruelty by husband or his relatives
b ) Legislative response
2.3 DOWRY PROHIBITION ACT , 1961
a ) Definition of dowry
b ) Dowry death
c ) presumption as to Dowry death
d ) judicial response to dowry
3. CHAPTER 3 – PROTECTION OF WOMEN FROM
DOMESTIC VIOLENCE ACT, 2005 – A CRITICAL
ANALYSIS
3.1 Background of the act
3.2 sailent features of act
3.3 Definition under act
3.4 pre-litigation options 18 - 26
3.5 powers &duties of police officers , service
providers & magistrates
3.6 mechanisms under the act
3.7 procedure for obtaining order & relief

4. CHAPTER 4 - JUDICIAL TRENDS ON

PROTECTING WOMEN FROM DOMESTIC
VIOLENCE
4.1 Demand of dowry
4.2 Jurisdiction in dowry cases
4.3 Judicial response on Dying declaration in
27 - 40
case of Dowry death
4.4 Judicial verdict on the abuse of the process of
Law.
4.5 Inherent criminal jurisdiction of court u/s 482
Crpc: Recent approach
4.6 Recent judicial approach on delay in lodging
FIR In dowry cases.
4.7 Bail and anticipatory bail in dowry cases
4.8 Trends for the plea of Alibi in death cases
5. CHAPTER 5 - CONCLUSION & SUGGESTIONS
5.1 conclusion 41 - 45
5.2 suggestions

6. CHAPTER 6 – BIBILIOGRAPHY 46
 1 - INTRODUCTION

1.1 INTRODUCTION
There has been a plethora of judicial pronouncements on dowry deaths
cases ever since the enactment of the dowry prohibition law, but even the domestic
violence Act and drastic changes introduced by the amending Acts have not been
able to contain this menace, on the contrary, it is on a constant increase. In
protecting the women the Indian judiciary has removed all the procedural shackles
and has completely revolutionised constitutional litigations. The judiciary has
encouraged widest possible coverage of the legislations by liberal interpreting the
terms. The judiciary by its landmark judgements had filled up the gap created by
the legislative machinery. The judiciary had extended helping hands to women.
The vibrant judiciary has recently exalted the dignity of women by its golden
judgements.
1.2 OBJECTIVES OF THE STUDY:
The present study is aimed to study the Protection of Women’s Rights with Special
Reference to Domestic Violence. So the main objectives of this study are the
following:
1. To assess the extent of Domestic Violence against women prevailing in various
forms in the family.
2. To study the reasons for bringing a Special Legislation on Domestic Violence.
3. To study the role of judiciary on protecting rights of women against domestic
violence.
1.3 LIMITATION OF THE STUDY:
The present study focuses on protection of women from Domestic Violence with
special reference to legislative enactments and judicial decisions.This study limits
itself in india. This study analysis how far judicial trends protects women from

1
1
domestic violence and what are all the rights available to women against
domestic violence in india.

1.4 HYPOTHESIS:
Keeping the above objectives in mind, the following hypothesis is
formulated
1. The Indian judiciary is recognizing the problem of domestic violence against
women and is giving effect to the various pro-women provisions as contained in
various legislations in India in letter and spirit while dealing with the cases of
domestic violence against women.
2. The existing legal framework is not sufficient to check the domestic violence
against women or needs modifications in order to overcome drawbacks and
defects.
3. ‘The Protection of Women from Domestic Violence Act, 2005’ is a progressive
legislation.
1.5 REVIEW OF LITERATURE
Diwan Paras, (2002) has conducted study on the topic 'Law Relating to Dowry,
Dowry Deaths, Bride Burning, Rape and Related Offences'. In this book the author
has made an endeavoured to show that much legislation providing protection to
women, e.g., with regard to dowry, cruelty and rape law has been made stringent
but a lot is lacking in part of investigative and enforcement machinery. In his work
the author has covered the wide canvas of insatiable demand of dowry, leading to
various dowry offences; to dowry deaths, murders and induced suicides; including
eve teasing, molestation and rape of women of all ages; cruelty on married women
anid indecent and vulgar representation of women in advertisement. The author has

1
Diwan paras ; law relating to dowry, dowry deaths, bride burning ,rape and related offences.

2
touched the existing laws and pointed out that they are not being properly
implemented. How existing laws could be made more effective is not pointed out.

Myneni, S.R. (2008) in his book title 'Women & Law' has dealt with the status of
women in India and its historical background. In this book the author has pointed
out various issues such as Human Rights and Women, Protection against
discrimination to women, provisions under the Constitution of India. Enactments
relating to women as per the directive principles of state policy. Maternity Laws,
equal pay for equal work. Personal Laws of Women, Law relating to adoption by a
women and other social legislation relating to women's issues etc., have also been
discussed in the book. Law relating to the protection of women from domestic
violence and offences against women under the Indian Penal Code have also been
discussed. The author has also discussed the role of Non-Governmental
Organization in the emancipation of women in India. The author has not pointed
out that the existing laws are sufficient to provide the protection against violence to
the women. It is also not pointed out whether the protection of women from
domestic violence Act, 2005 is sufficient to provide due protection against
domestic violence to the women.

1.6 METHODOLOGY
The methodology adopted to describe the judicial trends on laws
protecting women from domestic violence is doctrinal / non- empirical.

3
 2. Enactments and Judicial Decisions

‘Half of the Indian population is women. Women

have always been discriminated against and have
suffered and are suffering discrimination in silence.
Self-sacrifice and self-denial are their nobility and
fortitude and yet they have been subjected to all
inequities, indignities,inequality and discrimination’.
After having identified the problem of domestic violence under the international
framework, in the absence of any specific law to protect women from domestic
violence the researcher intends to analyze the Constitutional protection, legislative
response and judicial response to the problem of such violence.

2.1 The Constitution of India

The Constitution is the primary law of the land. Right from the time of enacting
this basic document, the makers, expressed their concern and determination to
declare and promote the rights of women.The Constitution of India casts a duty on
the State to implement the same through its machineries.
a ) Preamble
The Preamble contains the quintessence of the Constitution and reflects the ideals
and aspirations of the people. The Preamble starts with expression 'We, the people
of India, give to ourselves the Constitution...' The source of the Constitution is thus
traced to the people, i.e. men and women of India, irrespective of caste,
community, religion or sex. The framers of the Constitution were not satisfied with
mere territorial unity and integrity. If the unity is to be lasting, it should be based
on social, economic and political justice. Such justice should be equal for all. The
Preamble contains the goal of equality of status and opportunity to all citizens.
This particular goal has been incorporated to give equal rights to women and men

4
in terms of status as well as opportunity. The aspect of social justice is further
emphasized and dealt with in the Directive Principles of State Policy.The
Constitutional assurances found in the preamble operate universally. The women
are entitled to these assurances (rights) like equality of status and opportunity,
justice and liberty; they are not limited to the public enjoyment. She is entitled to
enjoy these rights inside the family for the fulfillment of a dignified life.
Social justice
The concept of social justice has various facets. A woman in different capacities
inside the family is supposed to enjoy a typical status to the fullest extent.
Whatever the things required for such attainment are the attributes of social justice
for the reason, family is a primary social institution. For providing social justice to
women, the most important step has been codification of some of the personal laws
in our country which pose the biggest challenge in this context. The Protection of
Women from Domestic Violence Act, 2005'" was passed by the Parliament with
recourse to Article 253 of the Constitution. This provision confers on the
Parliament the power to make laws in pursuance of international treaties and
conventions. The Domestic Violence Act was passed in furtherance of the
recommendations of the United Nations Committee on the CEDAW. The Act
encompasses all the provisions of the Specific Recommendations which form a
part of General Recommendation no.l9, 1992."2
In spite of many laws, their non-implementation, gender insensitivity and lack of
legal literacy prevent the dream of the Constitution makers from becoming a
reality. They prevent the fulfillment of the objective of securing to each individual
dignity, irrespective of sex, community or place of birth.
b ) Fundamental Rights

2
General recommendation 19 of CEDAW : violence against women

5
Fundamental rights are the entitlement of every man and woman because, they are
the basic needs and enforceable as constitutional or fundamental rights. The
framers of the Constitution were conscious of the unequal treatment and
discrimination meted out to the fairer sex from time immemorial and therefore
included certain general as well as specific provisions for the upliftment of the
status of women. 'Fundamental rights represent the basic values cherished by the
people of this country since the Vedic times and they are calculated to protect the
dignity of the individual and create conditions in which every human being can
develop his personality to the fullest extent.Thus, it is rightly held that Part III of
the Constitution and it is the heart of the Constitution.

i. Equality
Equality is not limited to peripheral treatment to the citizens. The core principle
underlines the substantial equality in all spheres of life which includes domestic
status. Obviously women can claim something more to attain meaningful equal
status in the society and family. Article 14 of the Constitution provides equality
before law. It provides that: 'The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory oflndia.' This Article
embodies the general principle of equality before law and prohibits unreasonable
discrimination between persons. It is an epitome of the noble ideals expressed in
the Preamble of the Constitution.3
Article 15 specifically prohibits discrimination on the ground of sex. Thus Article
15(1) prohibits gender discrimination and Article 15 (3) lifts that rigour and
permits the State to positively discriminate in favour of women to make special
provisions to ameliorate their social condition and provide political, economic and
social justice. Invoking Article 15(3) the state has enacted the special statutes in
3
Art.14 of the constitution of India

6
favour of women. It is submitted that the Act is one among them. Art 15(3) allows
state to make special provisions for women and children. This calls for operation
of the substantive equality mechanism for their Well-being. The explicit objectives
of this provision are elimination of substantive inequality of the disadvantaged
group in the society by positive measures. In interpreting Art. 15(3) it is regarded
that the special provisions can be only facilitative, protective and corrective
for women but not discriminatory against them.4
In Madhu Kishwar v. State of Bihar, which involved constitutionality of Chota
Nagpur Act 1908, that conferred right of intestate succession in tribal family
exclusively upon sons of the deceased person, the majority of the three judges
bench of the Supreme Court ruled that non-application of Hindu Succession Act
1956 and the consequent diversity of law did not violate Article 14. Ramaswamy
J.,in dissent, was willing to extend the right of succession to female heirs on the
basis of Articles 14 and 15(3), Since State Government's Committee came with a
report about unacceptability of amendment to Chota Nagpur statute amidst the
tribal's, the court adopted a cautious approach. However, the difficulty was
overcome by an appreciably creative interpretation that female member's right to
maintenance formed an aspect of right to dignified life, which could not be
deprived, by male heirs' right to inherit the property. The case demonstrated the
advantage of relying on Article 21 rather than on Articles 14 and 15 in hard cases.
However, in quashing the discriminatory provision in section 10 of the Divorce
Act, which had put women into a disadvantageous position in getting divorce, the
Kerala and Bombay High Courts applied Articles 14 and 15.5 In Gita Hariharan'
the Supreme Court construed the Guardianship legislations in the light of Articles
14 and 15 to the effect that mother was entitled to be natural guardian even during

4
Article 15 of the constitution of India
5
Gita Hariharan v. RBI (1999)scc 228

7
the life time of father, while in fact the statutes had relegated the position of
woman to a secondary position. The judicial approach about right to maintenance
is influenced by its consideration of dignified life. As held in Sapla Devi case', the
law of maintenance is aimed at prevention of vagrancy and securing of right to
food, clothing and shelter to the deserted wife and children. According to Krishna
Iyer J. it contains a social purpose that the ill-used wives and desperate divorces
shall not be driven to moral and material dereliction to seek sanctuary in the
streets.6 In Bai Tahira', and Shah Bano' 7cases the Supreme Court applied Sec. 125
of the Criminal Procedure Code irrespective of the claims of Muslim personal law
that the divorced wife is confined to iddat period.
ii. Right to Life
The Statement of Objects and Reasons declares that the Act was being passed
keeping in view the fundamental rights guaranteed under Articles 14, 15 and 21.
Article 21 confers the right to life and liberty in negative terms, stating that it may
not be taken away except by procedure established by law, which is required, as a
result of judicial decisions, to be fair, just and reasonable. The right to life has been
held to include the following right (which are reflected in the Act), among others:
a). The right to be free from violence:
In Francis Coralie Mullin v. Union Territory Delhi, Administrator8 the Supreme
Court stated, any act which damages or injures or interferes with the use of any
limb or faculty of a person, either permanently or even temporarily, would be
within the inhibition of Article 21. This right is incorporated in the Act through the
definition of physical abuse, which constitutes domestic violence. Physical abuse is
said to consist of acts or conduct of such nature that they cause bodily pain, harm,
or danger to life, limb or health, or impair the health or development of the
6
Bai Tahira v. Aliturrain, AIR 1979 SC 352
7
Mohammed ahmed khan v. sah bano begam
8
AIR 1981 SC 746

8
aggrieved person. Apart from this, the Act also includes similar acts of physical
violence and certain acts of physical violence as envisaged in the Indian Penal
Code within the definition of domestic violence. By adoption of such an expansive
definition, the Act protects the right of women against violence.
b). The Right to Shelter:
In Chameli Singh v. State of U.P.,9 it was held that the right to life would include
the right to shelter. Under Section 6 of the Act it is a duty of the Protection Officer
to provide the aggrieved party accommodation where the party has no place of
accommodation, on request by such party or otherwise. Under Section 17, the
party's right to continue staying in the shared household is protected. These
provisions thereby enable women to use the various protections given to them
without any fear of being left homeless. The Supreme Court of hidia has moved
towards a right direction in cases of gender equality. The Apex Court has
interpreted Constitutional provisions in favour of women. Whenever there was an
anti-women legislation, rule or order of the Government or any other agency then
the court has come into picture to rescue the rights of women.'
C ) Directive Principles of State Policy
Fundamental Rights cater to individual rights while the Directive Principles of
State Policy cater to social needs. These provisions are contained in Part IV of the
Constitution. Though these Principles are not enforceable in any court of law they
are fundamental in the governance of the country and provide for the welfare of the
people, including women. Article 39(a) directs the State to direct its policy towards
securing that citizens, men and women, equally have the right to an adequate
means of livelihood. The means of lively-hood of women is now protected under
Section 19 of The Act.

9
AIR 1996 SC 1051

9
D) Fundamental Duties
The technique of building harmonious and happy society through imposition of
fundamental duties in citizen's conduct is employed under Article 51A with a
belief that universal performance of duties towards all better protects rights. Article
51A (e) imposes duty to renounce practices derogatory to the dignity of women.
The duty to cherish and follow the noble ideals, which inspired our national
struggle for freedom (Article 51A(b)), also hints about treating women as equal
partners in all spheres of life. It is clear beyond all doubts that women's
emancipation was regarded by freedom fighters as one of the paramount
objectives. There is also duty to strive towards excellence in all spheres of
individual and collective activity so that the nation constantly rises to higher levels
of endeavour and achievement (Article 51A (f)). Since women constitute almost
half the population of the country, excellence in individual and collective activity
would require determined effort to uphold the status of women without that the
nation cannot raise to higher levels of attainment. As observed by R.N. Lahoti J,
'Fundamental duties, though not enforceable by a writ of the court, yet provide a
valuable guide and aid to interpretation of constitutional and legal issues.' They
have immense educational values and potentiality of changing the mindset of
people towards women. However, the equality of status guaranteed by the
Constitution is only a myth to millions of women for whom life is stalked by
various kinds of violence. According to an analysis of the report of the National
Crime Records Bureau, published by Ministry of Home Affairs, Government of
India, it appears that one woman becomes the victim of torture (domestic violence)
in every 20 minutes and one dowry death in every 106 minutes in India.' As
discussed earlier, domestic violence is manifested in various forms right from the
womb to the tomb. A whole range of laws had been enacted and amended to give
better status to women and protect their rights. Application and enforcement of
10
many of the provisions leaves much to be desired and women did not get the
benefit of the legal provision Lacunae in the provisions and modifications
recommended are at various stages of scrutiny at a slow pace. Thus crimes against
women are on the rise in spite of various legal provisions that have been enacted to
protect her. One can summarize the approach of Constitution as follows. A
practical approach, i.e., the constitutionally guaranteed fundamental right to
equality before the law and non-discrimination on the ground of sex have been
used by the Supreme Court of India as well as the High Courts to ensure gender
justice to women.
In the light of the aforesaid Constitutional scheme envisaging a protective net for
women the researcher hereafter records the important statutory provisions holding
the field in connection with the rights in the intra-familial relations. Apart from the
Constitutional Provisions in upholding the rights of women, conscious efforts are
also made by the parliament for improving the status and protecting the rights of
women, through the general legislations which are discussed hereinafter.10

2.2 Indian Penal Code, 1860

The intra- familial rights of women were hither to been protected under the penal
laws in the absence of any specific law to deal with the cases of domestic violence.
These provisions are discussed below in its entirety. Causing miscarriage to
women, indulging in unnatural sexual activity with women cohabiting deceitfully
with women, marrying again during the life time of wife,' criminal intimidation are
the acts which constitute domestic violence. These acts are now covered under the
definition of domestic violence under one or the other heading of the Act. It is
submitted that rarely any women have availed legal protection against her family
members under these provisions. Instead all these aspects were brought under
10
www.nfhsindis.org

11
cruelty and sought remedy. Hence judiciary has interpreted all these aspects under
the provision of cruelty and dowry death which are studied here under.
a) Cruelty by Husband or his Relatives :
Demand of dowry at the time of marriage of a girl by the prospective bridegroom
and his parents is a very peculiar feature of this country. Nowhere have we heard
cases of the nature of dowry demands and dowry deaths. There was no specific
legislation to deal with the domestic violence caused by the evil of dowry, which
was affront on the society. Therefore, the Parliament had to intervene to curb this
evil. It enacted a new chapter, Chapter 20A, which contains the sole provision.
Section 498A in the Indian Penal Code, 1860. This section punishes a husband or a
relative of the husband of women who subjects her to cruelty. To protect the wife
from being subjected to torture by the husband or his relatives, the legislature
enacted Section 498A of the Indian Penal Code and Section 113 of the Indian
Evidence Act.11
b. Legislative Response
The increasing number of dowry deaths is a matter of serious concern. The extent
of the evil has been commented upon by the Joint Committee of the Houses to
examine the working of the Dowry Prohibition Act, 1961 and the Dowry
Prohibition (Amendment) Act 1986. Cases of cruelty by the husband and relatives
of the husband which culminate in suicide by, or murder of the hapless women
concerned, constitute only a small fraction of the cases involving such cruelty. It
was therefore, proposed to amend the Indian Penal Code and the Indian Evidence
Act to deal effectively not only with cases of dowry deaths but also with cases of
cruelty to married women by their in-laws. As a result Indian Parliament amended
the Indian Penal Code by inserting a new chapter and new section by the Criminal
11
Sec.312 &313 of IPC, 1860
Sec. 377 IPC, 1860
Sec. 493 & 494 of IPC

12
Law(Second Amendment) Act, 1983.Section 498A of IPC12, creates a new offence
of cruelty to a married woman by her husband and in-laws. This offence is
punishable with imprisonment extending to a period of three years as well as fine.
The offence is cognizable, non bailable and non-compoundable. Its cognizance can
be taken only on a complaint filed by the aggrieved party or her parents, brother,
sister, or any other blood relation or relation by marriage or adoption. It is
submitted that generally complaints can be registered only after an offence has
been committed. But in a domestic situation a women would need protection even
before a crime is committed when she apprehends danger to her life as she is living
with her assaulter and is also dependent on him. Though the wife actually musters
courage to approach police station, the police would not register a complaint
against the husband for assaulting the wife. On the other hand, the police would
counsel the woman about her role in the house and send back even without
registering a complaint. So a special law only can protect woman in her own home.
The law addressing domestic violence is to be civil in nature, as the existing
criminal laws had proven to be inadequate to meet the needs of the women.
Likewise, Protection of Women from Domestic Violence Act, 2005 was enacted
with the object of protecting her from violence within the family.

2.3 Dowry Prohibition Act, 1961

This Act aims at discouraging the evil practice of giving and taking dowry that is
prevalent in the Indian society this Act has been enacted. Although women may be
victims of the crimes such as murder, robbery, cheating, etc only the crimes, which
are directed specifically against women, are characterized as crimes against women
and to give meaning and content for their rights, many laws were enacted. The

12
Sec. 498-A of IPC : The insertion of new section 498A in IPC by criminal law amendment Act, 1983 came in to
force with effect from 25/12/1983

13
alarming increase in cases relating to harassment, torture, abetted suicides and
dowry deaths of young innocent brides have always sent shock waves to the
civilized society. The decision of the courts in such cases assumes a great
importance in the sense that the courts are expected to handle this sensitive issue in
a realistic manner. The evil of dowry system has been a matter of serious concern
to everyone in view of its ever increasing and disturbing proportions. In order to
prohibit the evil practice, the Parliament of India has passed the Dowry Prohibition
Act, 1961.13

a ) Definition of Dowry
Section 2 of the Dowry Prohibition Act, 1961 defines dowry as any property or
valuable security given or agreed to be given either directly by one party to the
other party in the marriage or by the parents of either party on marriage or by other
person to either party in the marriage or to any other person.
The definition covers dowry in any form, and it covers the period before, at or after
the marriage takes place. Dower or Mehr is not dowry. The amount, however, paid
by the Muslims during the daughter's nikah for the purchase of property in the joint
names of daughter and the sonin- law is not considered as Dowry under the
provision of the Act. Presents given without demand, is not covered under the
purview of the Act.Any agreement pertaining to dowry is void.

b ) Dowry Death
Dowry death is a crime of its own kind where elimination of daughter-in-law
becomes immediate necessity if she or her parents are unable to satiate the greed
and avarice of her husband and his family and make a boy available once again in
the money market. If such a practice is eliminated, the inhuman practice of dowry
13
Dowry prohibition Act , 1961

14
death may be extinguished automatically. The Supreme Court of India suggests
that the social reformists and legal jurists should evolve a machinery for debarring
such boys from re-marriage, irrespective of the member of the family who
committed the crime, and in violation of which penalize the whole family. Thus
social ostracisation is an effective remedy to curtail the increasing malady of bride
burning.
c ) Presumption as to dowry death
This provision was introduced because the person committing such inhuman
crimes on married women should not escape liability, as evidence of a direct nature
is not readily available.14
d ) Judicial Response to Dowry
Dowry has become a social evil which the Indian Parliament tried to curb by
enacting the Dowry Prohibition Act, 1961, prohibiting the practice of giving and
taking dowry. But various indirect and sophisticated methods have been used to
demand dowry and to avoid the application of the Act. Furthermore, despite the
enactment of the Act, the increasing number of cases of cruelty by the husband and
his relatives related to dowry, culminating in suicide or murder of the helpless
woman. This has led to several other legislative measures in the continuous battle
to combat the evil of dowry such as, successive amendments of the Dowry
Prohibition Act, 1961, insertion of Sections 498-A and 304-B in the Indian Penal
Code 1860 and consequential amendments in the Criminal Procedure Code, 1973
and in the Indian Evidence Act, 1872.
A perusal of certain case laws decided under criminal laws by the Honorable Court
wherein the intra-familial disputes were looked into prior to the passing of the

14
Sec 304 B of IPC was inserted in the IPC to check dowry death by Act 43 of 1986 with effect from 19 november
1986

15
protection of women from Domestic Violence Act 2005 is found required for the
present study.
Dowry Demand
The case is related to demand of dowry by Shankarrao Abasaheb Pawar15 from his
daughter - in -law Anita. The marriage of Anita was solemnized with Pradeep
Shankarrao Pawar, son of Shankarrao Abasaheb Pawar .The respondents
demanded a cash of Rs. 50,000 from the appellant in the presence of respectable
persons under the pretext that the money was required for the transport of Anita
and the Pradeep to United States. The respondents told the appellant that if he did
not comply with that demand by way of dowry further ceremonies would not be
completed. Some respectable persons who were present at that time persuaded
Shankarrao to complete the marriage ceremonies and formalities and thereafter the
marriage ceremonies got over. After this, Pradeep alone went to U.S. Anita was
not sent to U.S. and Shankarrao continued to persist in the demand for the money
when she was staying in Shankarrao's house. A complaint was filed before Judicial
Magistrate, against both Shankarrao and Pradeep alleging that they had committed
an offence under Section 4 of the Dowry Prohibition Act, 1961.16
The Court observed that from Section 2, the consent to comply with the demand
for any property as consideration for the marriage would alone make the property
or valuable security given or agreed to be given directly or indirectly, 'dowry'
within the meaning of the Act. The very demand of property or valuable security as
consideration for marriage, even made prior to the woman or man becoming 'bride'
or 'bridegroom', and even in the absence of the consent of the other party, would
constitute an offence under section 4 of Dowry Prohibition Act. Furnishing of a list
of ornaments and other household articles such as refrigerator, furniture, electric
15
L.V.Jadhav v. shankarao Abasaheb pawar & others, (1983) 4 scc 231
16
Sec,174(3) & 176
Sec 113-A & 113- B

16
appliances, at the time of the settlement of the marriage amounts to demand of
dowry within the meaning of Section2(l)oftheDowry Prohibition Act, 1961.The
Court ordered for all the articles given to her at the time of the marriage, including
the valuable gold ornaments, to be restored to her.

17
 3. The Protection of Women from Domestic Violence Act, 2005:
A Critical Analysis
The agency through which the state tries to transform the society is always through
law. But the moot question here is how effective is the law, in bringing about the
social transformation. With this perception the researcher has analyzed the Act.
Further judicial decisions are referred to understand the contemporary position
which is prevailing in this area. The researcher in this module has analyzed
keeping the same in mind. Further certain judicial decisions are also taken for
reflecting the current position which is prevailing in this area. The objective of the
this Act is to provide for more effective protection of the rights of women
guaranteed under the constitution who are victims of violence of any kind
occurring within the family.
3.1 Background of the Act
On 8 March 2002, the National Democratic Alliance (NDA) government,
introduced a separate bill entitled, "Protection from Domestic Violence Bill, 2001
(hereinafter, GOI Bill) in the Lok Sabha. At one level the GOI Bill was an
acknowledgement that domestic violence was a serious issue requiring specific
legal intervention. There has been a consistent denial of the existence of domestic
violence against women and a refusal to address the issue. To that extent, the
introduction of the GOI Bill was a significant victory. However, in terms of
content, the GOI Bill not only fell short of what the women's movement had been
asking for, but it was feared that if enacted, it might have dangerous implications
for women facing domestic violence. The emphasis of the GOI Bill, it appeared,
was the preservation of family rather than preventing violence against women and
protecting. The objective clause of the Protection of Women from Domestic
Violence Act, 2005.

18
In June 2005, the draft Protection of Women from Domestic Violence Bill received
cabinet approval and the bill was tabled in the Parliament in July. Members of LC,
along with a number of other women's organizations were present in the
Parliament when discussions on the bill took place. Surprisingly, no questions were
asked about the need for a law on domestic violence by any political party. One did
not know if it was a reflection of a gradual social recognition of domestic violence
as an issue of immediate concern or was it a plain apathy towards a law which was
being enacted simply to fulfill an election promise. Certain members of the house
expressed reservations regarding the inclusion of "relationships in the nature of
marriage" within the purview of protected categories of women under the law. It
was said that we were introducing concepts alien to Bharatiya Sanskrit!, which
would send across the wrong message to the society. However, the bill was
unanimously passed by the Lok Sabha on 22 August 2005 and by the Rajya Sabha
on 24 August 2005. On 13 September, it received the assent of the president and
the Protection of Women from Domestic Violence Act, 2005 entered the statute
book.

3.2 Salient features of the Act

The salient features of Protection from Domestic Violence Act, 2005 are as
follows:
i. The Act seeks to cover those women who are or have been in a relationship with
the abuser where both parties have lived together in a shared household and are
related by consanguinity, marriage or a relationship in the nature of marriage, or
adoption; in addition relationship with family members living together as a joint
family are also included. Even those women who are sisters, widows, mothers,
single woman, or living wdth the abuser are entitled to get legal protection under
the proposed Act.
19
ii. 'Domestic violence' includes actual abuse or the threat of abuse that is physical,
sexual, verbal, emotional and economic, harassment by way of dowry demands to
the woman or her relatives would also be covered under this definition,
iii. 'Right to Secure Housing'- One of the most important features of the Act is
woman's right to secure housing. The Act provides for the woman's right to reside
in the matrimonial or shared household, whether or not she has any title or rights in
the household. This right is secured by a residence order, passed by a court. These
residence orders cannot be passed against anyone who is a woman.
iv. 'Preventive Order'- The other relief envisaged under the Act is that of the power
of the court to pass protection orders that prevent the abuser from aiding or
committing an act of domestic violence or any other specified act, entering a
workplace or any other place frequented by the abused, attempting to communicate
with the abused, isolating any assets used by both the parties and causing violence
to the abused, her relatives and others who provide her assistance from the
domestic violence. The Act provides for appointment of Protection Officers and
NGOs"' to provide assistance to the woman with reference to medical examination,
legal aid, safe shelter, etc.
V. 'Non-bailable Offence' - The Act provides for breach of protection order or
interim protection order by the respondent as a cognizable and non-bailable
offence punishable with imprisonment for a term which may extend to one year or
with fine which may extend to twenty thousand rupees or with both.
Similarly, non-compliance or discharge of duties by the Protection Officer is also
sought to be made an offence under the Act with similar punishment.
3.3 Definitions under the Act
Under the Act, an aggrieved person or a protection officer appointed under the act
or any other person can present an application to the Magistrate seeking one or
more reliefs under the Act, if the aggrieved person has been in a domestic
20
relationship with a person and has been subjected to domestic violence. The term
"aggrieved" person means any women, who is or has been in a domestic
relationship with the respondent and who allege to have been subjected to any act
of domestic violence by the respondent. 'Domestic Relationship' means a
relationship between the persons who live or have at any point of time lived
together in a shared household when they are related by consanguinity, marriage or
through a relationship in the nature of marriage, adoption or are family members
living together as a joint family.'Shared Household' means a household where a
person aggrieved lived or at any stage has lived in a domestic relationship either
singly or along with the respondent and includes such household whether owned or
tenanted either jointly by the aggrieved person and the respondent or owned or
tenanted by either of them in respect of which either the aggrieved person or the
respondent or both jointly or singly have any right, title, interest or equity and
includes such a household, which may belong to the joint family of which the
respondent is a member, irrespective of whether the respondent or the aggrieved
person has any right, title or interest in the shared household.
The term 'Domestic Relationship' defined in Section 2 (f) of the Act provides that
domestic relationship will mean a relationship in which two persons are or have
lived together in a share household. The Act now recognizes live-in-relationship.
Thus, if a woman is living with a man who abuses her, she can take recourse to the
provisions of this law even though she is not married to him. Domestic
relationships are not restricted to the marital context alone. It also covers sisters,
widows, mothers, daughters, women in relationship of cohabitation, single
Woman. The law also protects women in fraudulent or bigamous marriages, or in
marriages deemed invalid in law.17

17
Sec.2 (f) of Domestic violence act, 2005

21
'The Protection of Women from Domestic Violence Act, 2005' is a comprehensive
law, a progressive law wherein important previously unconsidered aspects are
covered and new dimension is given to the word 'Abuse'. The expression 'Domestic
Violence' is defined elaborately in the Act.
Section 2 (q) of the Act reads as respondent is "any adult male person" who is in
domestic relationship with the aggrieved person and against whom the aggrieved
person has sought any relief under the Act.
An aggrieved wife or female living in a relationship in the nature of marriage may
also file a complaint against the husband or male partner's relative." Complaints
under the Act can also be filed against the female relatives of the husband or the
male partner.18
3.4. Pre-Litigation Options
This segment outlines options for aid and assistance, which a woman may exercise
for immediate protection and shelter options, is usually exercised prior to
approaching court. However shelter and legal aid options may be exercised in the
course of legal proceedings. Under the provisions of the Act, the role of
counselors, NGOs, Women's Organizations and even medical personnel is spelt
out. New functionaries known as Protection Officers and Service Providers have
been created who are empowered to assist victims of domestic violence. Women
are now having access to their rights and various support services under the Act.19
Though the Protection of Women from the Domestic Violence Rules, 2006
requires that the counselors have to be in all practical situations be a woman, this
aspect is also not given attention while appointing them. Often it is wrongly
understood that the respondent has to be only the adult male member under Section

18
Sec.2(q) of Domestic violence Act,2005
19
Sec.6 &7 of Domestic violence Act,2005

22
2(q). But the proviso in the same section makes it clear that relatives of the
respondent can also be made parties under the Act.
3.5 Powers and Duties of Police Officers, Service Providers and the
Magistrates
A Police officer, Protection Officer, Service provider or Magistrate who receives
the complaint of domestic violence shall inform the aggrieved person.
a. of her right to make an application for obtaining relief by way of protection
order, an order for monetary relief, a custody order, a residence order, a
compensation order;
b. of the availability of services of service providers;
c. of the availability of services of the Protection Officers;
d. of her right to free legal services under the Legal Services
Authorities Act, 1987;
e. of her right to file a complaint under section 498 A of the Indian
Penal Code;
3.6. Mechanism under the Act
The Act specifies a set of mechanism to help the victim of domestic violence. They
are (i) magistrate (ii) Protection Officer and (iii) Service Provider.
a. Appointment of Protection Officer20
1. The State Government shall appoint a Protection Officer in each
District.
2. The Protection Officer shall preferably be a woman.
3. The Protection Officers shall be of the govemment or members of
the NGOs.
4. The Protection Officer shall have at least three years of
experience in the social sector and her tenure shall be shall be for
20
Rule 3(1) of protection of women from Domestic violence Rules, 2006

23
a period of three years.
5. The State Government shall provide necessary office assistance
for the efficient discharge of her functions.
b. Duties of Protection Officers
It shall be the duty of the Protection officer
1. To assist the Magistrate in the discharge of the functions of the court;
2. To make a Domestic Incident Report to the magistrate in prescribed form and
forward copies thereof to the police officer in charge within whose local
jurisdiction the offence is alleged to have been committed and to the Service
Providers of that area.
3. To make an application in such form and such manner as may be prescribed to
the magistrate, if the aggrieved person so desires,claiming relief for issuance of a
protection order;
4. To ensure that the aggrieved person is provided legal aid under the Legal
Services Authorities Act, 1987;
5. To maintain a Hst of all Service Providers providing legal aid or counseling,
shelter homes and medical facilities in the local area within the jurisdiction of the
Magistrate;
6. To make available a safe shelter home, if the aggrieved person or the child so
requires and forward a copy of his report of having lodged the aggrieved person in
the shelter home to the police station and the Magistrate having jurisdiction in the
area where the sheher home is situated.21
7. To get the aggrieved person and any child facility including transportation to get
medically examined, if she has sustained bodily injuries and forward a copy of the
medical report to the police station and the Magistrate having jurisdiction in the
area where the domestic violence is alleged to have been taken place.
21
Rules 3(2) &3(3) of protection of women from domestic violence Rules,2006

24
8. To ensure that the order for monetary relief under section 20 is complied with
and executed, in accordance with the Code of Criminal Procedure, 1973.
9. To perform such other duties as may be prescribed.
10. To prepare a Safety Plan including measures to prevent further Domestic
Violence to the aggrieved person, in consultation with the aggrieved person.22
3.7. Procedure for Obtaining orders or Reliefs
a. Application to the Magistrate
Either the aggrieved person or the Protection Officer or any other person on behalf
of the aggrieved person can make an application stating the type of violence in the
prescribed form to the Judicial Magistrate of First Class of the locality.
 The relief sought in these cases may also include relief for issuance of an
order for the payment of compensation or damages.
 The Magistrate on receipt of application shall fix the first date of hearing
after three days.
 The Magistrate shall also call for a domestic incident report from the
Protection Officer or the Service Provider.
 He has a power to grant interim and exparte orders but before passing any
exparte order the Magistrate will consider the domestic incident report filed
by the Protection Officer or the Service Provider.
 The magistrate may at any stage of the proceedings direct the parties, either
singly or jointly, to undergo counseling.
 Magistrate may at any stage of the proceedings be able to secure the
assistance of welfare expert, preferably women, to assist him.
 The entire proceedings will be closed and final orders will be
passed within 60 days.

22
Rule 8(1) & 9 of protection of women from domestic violence Rules,2006

25
  If the magistrate considers that it is necessary or the parties so desire, the
magistrate can conduct the proceedings in camera.
It is opined that the expression 'any other person' under Section 12 of the Act needs
to be made clear so as to make it free from ambiguity. A detailed discussion has
been carried out in the latter part of the study.
b. Notice to be served to the respondent
The notice of date of hearing will be served by the Protection Officer within a
maximum period of two days as stipulated under the Act. It is submitted here that
the time stipulated to serve the notice under the Act though has genuine reason of
preventing delay in awarding remedy is devoid of practical problems. When the
state has not appointed any Protection Officers, the in charge officer finds it
practically difficult in serving the summons.
c. Appeal
There shall lay an appeal to the Court of Session within thirty days from the date
on which the order made by the Magistrate is served on the aggrieved person or the
respondent.
d ) Reliefs available under The Act
When an application for relief against domestic violence is made to the Magistrate
then he can pass the following orders such as: Protection Orders, Residence Order,
Monetary Reliefs, Custody orders, Compensation Order. If the respondent
disobeys the orders of the magistrate, he also is liable to be punished.

26
 4 . JUDICIAL TRENDS ON PROTECTING WOMEN AGAINST

DOMESTIC VIOLENCE

4.1. DEMAND OF DOWRY

Repeated and reiterated demand of dowry immediately after marriage.

In India, there is a tendency to club most marital violence under the overall heads
of 'dowry death' and 'dowry violence'. This categorisation glosses over the other
causes of violence which pervade the familial context. However, to argue that
dowry is not always the cause behind marital discord is not to ignore the fact that it
is one o the major factors responsible for domestic violence. While keeping this
fact in mind it is necessary to work towards a fuller understanding of the institution
of dowry and its impact on inter-family relationship.Recently, Hon'ble Apex Court
while deciding an appeal23 from order of conviction and sentence recorded by the
Addl. Sessions Judge, Gurdaspur and confirmed by the Punjab and Haryana High
Court held that both the Courts were right in rejecting defence version that since
the accused possessed scooter as well as motorcycle, there was no necessity to
make demand of scooter. The High Court observed that it was a matter of common
knowledge that even if in-laws had several things in the house, still they demand
dowry. Even if we may not go to that extent, in our opinion, in the present case,
there was sufficient evidence in the form of sworn testimoney of PW2-Sudershana
Rani, PW4-Gopal Singh and PW-7 Dharminder Singh that there was a demand of
dowry by accused and deceased Reeta Kumari had made such complaint
immediately after marriage which was repeated and reiterated. The deceased used
to inform about such demand by the accused to her parents. It is, therefore, totally

23
Kishan singh & anothers v. st. of Punjab , AIR 2008 SC 233

27
irrelevant whether accused possessed motorcycle or scooter. Demand of dowry in
this case was clearly proved and conclusively established by the prosecution.

We also find no substance in the contention of the appellants that there was
material contradiction in the deposition of prosecution witnesses as to the occasion
of making demand, i.e. as shagun or as dowry. From the evidence, it is proved that
accused persons insisted for scooter and golden bangle as they has obliged parents
of Reeta Kumari by allowing her to marry to accused No. 1-Manmohan Singh. In
our opinion, therefore, both the Courts were right in coming to the conclusion that
there was demand of dowry by the accused.

4.2 JURISDICTION IN DOWRY CASES

Chapter XIII of Cr.P.C. contains provisions dealing the jurisdiction of the criminal
Courts in enquiries and trials. There are seven provisions in the said chapter.
Section 177, which is a general provision, lays down that every offence shall
ordinarily be enquired into and tried by a Court within whose local jurisdiction it
was committed. There can always be situations and situations where other
Magistrates can as well as enquire into and try the offence.

Section 178. Place of Inquiry or trial-

(a) When it is uncertain in which of several local areas an offence was committed,
or

(b) where an offence is committed partly in one local area and partly in another, or

(c) Where an offence is a continuing one, and continues to be committed in more

local areas than one, or

(d) Where it consists of several acts done in different local areas.

28
It may be inquired into or tried by a Court having jurisdiction over any of such
local areas.
Section 179. Offence triable: Where act is done or consequence ensures- When an
act is an offence by reason of anything which has been done and of a consequence
which has ensured, the offence may be inquired into or tried by a Court within
whose local jurisdiction such thing has been done or such consequence has
ensured.
A reading a Section 177 & Section 178 Cr.P.C. would make it clear that Section
177 provides for ordinary place of enquiry and trial. Section 178, inter alia,
provides for place of enquiry and trial where it is uncertain in which of several
local area and offence was committed partially in one local area and partially in
another and where it consisted of several acts done in different local areas. It could
be enquired into or tried by a court having jurisdiction over such local areas.24
In a recent case Rajsthan H.C. Observed that in a case under section 498-A/406
IPC where Husband and Wife resided at Delhi, acts of cruelty committed at Delhi
but wife came to reside at Ajmer with her parents and filed criminal complaint at
Ajmer is not competed under section 177 Cr.P.C., Court had that every offence is
to be enquired and tried b The three provisions, namely, Section 177 to 179 of Cr.
P.C., indicate that in the case of offence under Section 498-A of IPC, the case can
be filed by the aggrieved wife/woman at a place where the demand was made for
dowry or property thereby causing cruelty and also at a place where the woman
was forced to live. In a recent case it has been observed by Jharkhand High Court
that from the perusal of the entire complaint/ petition as the statement of the
complainant recorded on solemn affirmation and the statements of the witnesses
recorded during the course of enquiry under Section 202 of the Code of Criminal
Procedure, it is evident that the overt act as alleged against the petitioner is said to
24
Victor Axillium & ors v. state & Anrs, 2008 cr.L.J.,774(Madras)

29
have been taken place in the State of Uttar Pradesh at village Bakhira and not at
Bokaro in the State of Jharkhand. Therefore, the court in the state of Uttarpardesh
has the jurisdiction. In this view of the matter this application is allowed and the
order taking cognizance dated 19-2-2003 passed by the Sub-Divisional Judicial
Magistrate. Bokaro. In C.P. Case No. 341 of 2002 as well as the entire criminal
prosecution / proceedings of the petitioner for the offence under Sections 498-A of
the Indian Penal Code and Section 4 of the Dowry Prohibition Act pending in the
Court of the Sub-Divisional Judicial Magistrate, Bokaro, is hereby quashed.25
In another recent case Andhara Pradesh High Court observed that on perusal of the
complaint and also statement recorded under Section 161 Cr. P.C. and the
averments in the charge sheet would go to show that all the acts alleged against the
petitioners, which got to constitute the alleged offences have taken place at
Chittoor. The marriage of 2nd respondent with A I was performed at Chittoor. The
alleged payment of dowry in cash and in the form of other valuables at the time of
marriage was also at Chittoor and the alleged harassment and ill treatment of 2nd
respondent demanding additional dowry also took place at Chittoor and the
complainant was driven out of the house at Chittoor. It is not disclosed either in the
complaint or in the record of investigation or in the charge sheet, as to which part
of the alleged offences has taken place at Hyderabad or how the cause of action for
the offences arose at Hyderabad.
In the present case as no part of cause of action is shown to have arisen at
Hyderabad within the jurisdiction of learned IX Metropolitan Magistrate,
Kukatypally, Cyberabad and the entire cause of action as can be seen from the
record, is alleged to have arisen at Chittoor. In view of the principles laid down by
the apex Court in CC No. 1176 of 2005 on the file of IX Metroploitan Magistrate,
Kukatpally, Cyberabad are not maintainable and they are accordingly quashed. It
25
Radhe raman naik & Anr v. st.of Jharkhand & Anr.2008 CRI.L.J.317

30
is however, open to the complainant to file a fresh complaint before the appropriate
Court having jurisdiction to deal with the matter.26
In a recent case 27Rajsthan H.C. Observed that in a case under section 498-A/406
IPC where Husband and Wife resided at Delhi, acts of cruelty committed at Delhi
but wife came to reside at Ajmer with her parents and filed criminal complaint at
Ajmer is not competed under section 177 Cr.P.C., Court had that every offence is
to be enquired and tried by Court within whose jurisdiction the offence committed
therefore, the Court at Delhi had jurisdiction. But Andhra Pradesh High Court held
that where the women leaving matrimonial home due to dowry harassment, She
can file the complaint under Section 498-A of IPC at the place of her parents or
where she intent to live or at a place where she is forced to reside .
4.3 JUDICIAL RESPONSE ON DYING DECLARATION IN CASE OF
DOWRY DEATH
The principle on which dying declaration is admitted in evidence is indicated in
legal maxim “nemo moriturus proesumitur mentiri- a man will not meet his maker
with a lie in his mouth.” The expression dying declaration has not been used in any
statute- It essentially means statements made by a person as to the cause of his
death (sec. 32 of Evidence Act). The grounds of admission are: firstly necessity for
the victim being generally the only principal eye-witness to the crime, the
exclusion of the statement might deflect the ends of justice; and secondly, the
sense of impending death, which creates a sanction equal to the obligation of an
oath. Dying declaration is only a piece of untested evidence and must like any
other evidence, satisfy the Court that what is stated therein is the unalloyed truth
and that it is absolutely safe to act upon it.

26
Venkatapathi Naidu & ors. v. st.of AP & Anr. 2008, cri.LJ. 179(A.P, H.C)
27
Rajesh kumar & Anr v. st.of Rajasthan 2006 (3) RCR (Criminal) 717 Rajasthan HC

31
4.4 JUDICIAL VERDICT ON THE ABUSE OF THE PROCESS OF LAW
(a) The Abuse of the beneficial provision of Section 498-A
The provisions of “Sections 498-A, IPC was conceived with the noble intention of
protecting women from dowry harassment and domestic violence; it is lamentable
that the law is being rampantly misused.”Whenever there is a matrimonial dispute
between husband and wife, for the fault of the husband, other relations of the
husband i.e. brothers, sisters and parents, are also roped in the litigation on the
allegation of demand of dowry, whether they are living joint or separate.
Sometimes, the parents who are aged about 80 to 90 years and unable to walk or
talk and the sisters living at far off places in the matrimonial house are also
involved.
In a recent case u/s 498-A/406 IPC, against whole family of the husband (Sanjay
Kumar). In this case the unmarried sister of the husband namely Meenakshi @
Soni @ Manisha has been implicated. Justice Virender Singh of Punjab & Haryana
High Court held in this case that, while arriving at this conclusion, I have not only
appreciated the totality of the facts and circumstances of the case in hand but also
kept in consideration that the things have taken a reverse trend now a days and
women are abusing beneficial provision of section 498-A IPC by implicating all
the members of her in-laws. It is quite notices by the court that case of this type
create somewhat formidable hurdle in reconciliation efforts and gave rise to a lot of
bickering between the two families and the efforts to be made by the court are
being hurried. In some judgements a suggestion is also given to law commission
and the parliament that if section 498-A IPC has to continue on the statute book in
the same form, it should be made a non-cognizable and a bailable offence, so that
the provisions are not misuse to harass innocent people.
Further, it has been observed by the court that, "I am surprised how Meenakshi
been arrayed as accused with general allegations of demand of dowry, entrustment
32
of dowry articles and harassment at her hand. Meenakshi @ Soni @ Manisha
petitioners is unmarried sister-in-law. She is still unmarried as the parents have not
arranged her marriage on account of the pendency of the criminal proceedings
against her. In my considered view her involvement in the instant case is an
outcome of usual hatred in the mind of the complainant side after the matrimonial
discord. This rather goes to strengthen my observation that a tendency has
developed for roping in all the relations in dowry cases28
(b) False implication of minor under Section 498-A, IPC
There is growing tendency to come out with inflated and exaggerated allegations
roping in each and every relatives of the Husband whenever there is marital dispute
or a case of cruelty against wife. The statement of the complainant wife is
sufficient to put all the relatives including school going minor brothers and sisters
of the Husband behind the bar. Such was neither the intention nor the object of the
legislation.
While discussing the facts of the case of Bhupinder Kaur29 it was observed by
Hon'ble High Court that all the members of the family of husband roped including
two minors. FIR against the minor was quashed holding that from the reading of
the FIR, it is evident that there is no specific allegation of any act against Petitioner
No. 2 and 3, which constitute offence under section 498-A IPC. I am satisfied that
these two persons have been falsely implicated in the present case, who were
minor at time of marriage and even at the time of lodging the present FIR. Neither
of these two persons was alleged to have been entrusted with any dowry article nor
did they allege to have ever demanded any dowry article. No specific allegation of
demand of dowry, harassment and beating given to the complainant by these two
accused has been made. The allegations made are vague and general. Moreover, it

28
Divya Babli v. st.of Haryana, 2006(4) RCR(cri.) 323 ( P&H)
29
Bhuinder kaur v. st.of Punjab 2003(2) RCR(cri.) 413

33
cannot be ignored that every member of the family of the husband has been
implicated in this case. The initiation of criminal proceedings against them in the
present case is clearly are abuse of process of court .

4.5 INHERENT CRIMINAL JURISDICTION OF COURT U/S 482 Cr. P.C.:

RECENT APPROACH
(a) Use of power under Section 319 Cr.P.C.
The plan words of Section 319, Cr.P.C. makes it clear that it is only on the basis of
evidence in the course of an enquiry or trial of an offence that the power to
summon a person under section 319, Cr.P.C. can be exercised. So the essential
need to proceed against the person other than the accused, appearing to be guilty of
offence, arises only on evidence recorded in the course of any enquiry or trial.
In a recent case, it has been observed by Punjab & Haryana High Court, 30 while
deciding a petition u/s 482 Cr. P.C. for quashing the summoning order in case u/s
498-A and 406 IPC filed by wife against husband and other relatives. During
investigation the petitioner No. 2 Mullah Latif @ Abdul Lalit, who is Father in-law
of sister of husband of complainant was not challaned and kept in column 2 of FIR.
After framing the charge, the evidence of the complainant was recorded and she
made statement with regard to involvement of the petitioner. The judicial
Magistrate Ist class summoned the petitioner on the ground that reasonable
prospects appear for conviction. The petitioner filed revision against order of the
Judicial Magistrate. It was pleaded that petitioner have no role to play in
commission of the offence for which summoning order has been issued against
him and he is in no manners concerned with the family affairs of the complainant
and her husband.

30
Smt.Harmohan kaur v.st.of Punjab,2006 (3) RCR (cri.) 932

34
In the present case, undisputedly, the petitioners were found to be innocent during
investigation by the police and they were placed in Column No. 2 in the challan
submitted by the police. There is no fresh evidence against the petitioners except
the statement of Meena, complainant wherein the allegations are similar to that the
complaint filed by her. All the petitioners except Sham Lal were residing
separately from the complainant and her husband. Even in her statement before the
Court no specific allegations as to how the complainant was harassed by the
present petitioners, have been made. The complainant herself stated that she has
gone to her in-laws house only three times after the marriage. The powers under
Section 319 of the Code of Criminal Procedure should be used sparingly and only
if there is convincing evidence against the persons sought to be arraigned as
accused.
In another case, the petitioner is the niece of mother-in-law of respondent No. 2
and is residing at Chandigarh in her own matrimonial home. The petitioner has
prayed for quashing of order dated 10.7.2002, passed by Judicial magistrate I
Class, Patiala, vide which she has been summoned under Section 319 of the Code
of Criminal Procedure on the application moved by the prosecution.
It has been further alleged in the petition that investigation was, thereafter,
conducted by the police and challan was presented against the aforementioned
persons, but finding no allegation against the petitioner, she was put in column No.
2. The learned trial Magistrate framed charges against the aforementioned persons,
a copy of which is annexed with the petition as Annexure P-2. Subsequently, after
two years of the registration of the FIR, respondent No. 2 moved an application for
summoning the petitioner under Section 319 of the Code of Criminal Procedure,
mentioning therein that her name figured in the FIR and consequently, the learned
trial Magistrate, vide order dated 10.7.2002, on the basis of the statement of
complainant-respondent no. 2, while appearing as PW-1 before him, wherein she
35
pointed out the name of the petitioner specifically mentioned therein that she gave
beating to her by participating in the commission of the crime, ordered to summon
the petitioner. Further it has been observed by High Court that having heard the
learned counsel for the parties and going through the pleadings of the parties, to
my mind, the petitioner is in distant relation of mother-in-law of respondent No.
2(Complainant). She has no role to play in the alleged commission of the crime.
There is growing tendency to come out with inflated and exaggerated allegations,
roping in each and every relation of the husband. I find that the only vague
allegations have been made against the present petitioner, who is the real niece of
mother-in-law of respondent No. 2. In fact, the learned trial Magistrate fell in error,
while summoning the petitioner under Section 319 of the Code of Criminal
procedure by passing the order dated 10.7.2002. In view of the above discussion,
the instant petition is allowed .
(b) Quashing of FIR where the investigation had not even started
In this case31, the hon’ble Supreme Court observed that FIR under Section 498-A,
406-IPC, has been quashed by the High Court where the investigation had not even
started, order of the High Court set aside by the Apex Court and held that, this was
too premature a stage for High Court to give such as finding when even the
investigation had not started and investigating agency had no occasion to find out
whether there was material to file a charge-sheet or not.

4.6 RECENT JUDICIAL APPROACH ON DELAY IN LODGING FIR IN

DOWRY CASE
It is well settled that the delay in lodging the FIR by itself cannot be a ground to
doubt the prosecution case. Knowing the Indian conditions, as they are, we cannot
expect villagers to rush to the police station immediately after the occurrence.
31
Savita v. st.of Rajasthan , 2006 (2) RCR (cri.) 237 (SC)

36
Human nature as it is, the kith and kin who have witnessed the occurrence cannot
be expected to act mechanically with all the promptitude in giving the report to the
police. At times being grief-stricken because of the calamity it may not
immediately occur to them that they should give a report. After all, it is but natural
in these circumstances for them to take some time to go to the police station for
giving the report. There is no hard and fast rule that any delay in lodging the FIR
would automatically render the prosecution case doubtful.
Again, it has been held by Punjab and Haryana High Court that, delay of 12 hours
in lodging FIR is not fatal, where the families are involved, it may not be unusual
for the relations and other members of the society to delay the matter by a few
hours or so.
In another recent case, the Uttrakhand High Court32 observed that the incident is
said to have taken place on 12-2-1987 and the FIR was lodged by the brother of
deceased on 22-2-1987 at Srinagar Police Station. As per the prosecution case,
deceased had died in the house of present appellant on 12-2-1987 and he has sent
three persons namely Matvar Singh, Binnu and Saru to the house of Jeet Singh,
uncle of the deceased on 13-2-1987. On the next day morning, the Uncle of the
deceased namely Jeet Singh gave a telegram to the brother of deceased Vikram
Singh Bisht who received teleram on 18-2-1987, who was a doctor in the Indian
Army had posted as Captain and after getting the leave from the Army, he had
reached to the village on 21-2-1987 and after inquiring the matter from the
villagers, when he was confident that his sister was murdered by the present
applicant in his house and he has burned the dead body of deceased in order to
destroy the evidence of deceased in order to destroy the evidence of murder, then
he had lodged the FIR is explained and it is proved by the circumstances that the
FIR is not delayed and the delay is not international but it was compulsion.
32
Brahm singh patwal vs. state, 2008 CR.L.J, 629, Uttarkhand HC.

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4.7 BAIL AND ANTICIPATORY BAIL IN DOWRY CASES
Section 498-A, IPC is incorporated by the Legislature basically in the interest of
women and to safeguard them from harassment. But, it has become somewhat
counter productive. In several cases, women are harassed arrested and humiliated
on the complaints given under Section 498-A. I. P. C. The truth or otherwise of the
allegations is subject to proof. For giving complaint absolutely no authentic and
prima facie material like medical evidence is required, but no such complaints, in
several cases, number of women are being arrested. In cases of arrest of married
young women, they might face problems from their husbands and in-laws; in case
unmarried women are arrested their marriage prospects would be badly affected
and if Government servants are arrested their service prospects are affected. In the
present case, only one woman is the alleged victim, but at least four women might
have to go to jail even before trial, affecting their reputation. Subjecting them to
rude treatment at Police Station etc. Only in cases where strong and authentic
evidence like letters written by the accused-husband to the spouses or their parents
etc. are available and where there is sufferance of serious injuries or death of the
victim only, perhaps; it is desirable to refuse anticipatory bail, that, too for the
accused-husband33.
These are the general consideration for refusing bail. They are:
(i) The likelihood of the accused person absconding.
(ii) If the alleged offence is likely to be continued or repeated.
(iii) If there is danger of tampering with evidence.
(iv) If there is the danger of tutoring or intimidating witness.
(v) If the accused is guilty of an offence punishable with death or imprisonment for
life.

33
Kamireddy mangamma reddy & ors. V. state of AP., 2008 CRI.L.J. 1083

38
(vi) If the accused had been previously convicted on two or more occasion of a
non-bailable and cognizable offence.
Besides these general consideration taken into account by the courts while granting
and refusing bail in cases of cruelty and dowry death. Some cases are discussed
below in which bail was granted.
It has been observed that, “There is a need to indicate in the order, reasons for
prima facie concluding why bail was being granted particularly where an accused
was charged of having committed a serious offence. It is necessary for the Courts
dealing with application for bail to consider among other circumstances, the
following factors also before granting bail, they are:
1. The nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat
to the complaint;
3. Prima facie satisfaction of the Court in support of the charge.”34

4.8 TRENDS FOR THE PLEA OF ALIBI IN DOWRY DEATH CASES

It is well-settled that the plea of alibi must be proved with absolute certainty so as
to completely establish the persons concerned at the place of occurrence. Mere
production of certificate in question would not be sufficient. The truthfulness of the
certificate was required to be established by leading evidence in order to establish
that the applicant was not present at the scene of offence. Besides this if the said
certificate is perused, it appears that the words which are crucial for the plea of
applicant appeared to have been written subsequently. The size of thewords,
spacing, the manner in which they have been inserted in thesaid certificate makes it
very apparent. Moreover, plea of alibi was not at all pressed either before the trial
34
Bimal kumar khetan &Anr. V. state of orrisa, 2007, cri.L.J .958

39
court or before the appellate court and no specific suggestions, were given to any
of the prosecution witnesses regarding the plea of alibi. Under these circumstances,
at this stage, Court was not inclined to accept the contention of advocate for the
applicant that the matter be remanded for examination of the Tahsildar on the said
certificate. It has been held in a recent case by Punjab and Haryana High Court
35
that all the three accused are able to proved their pleas of alibi by way of
producing independent witness. As a measure of abundant caution we extend the
benefit of doubt to the accused as their part and participation in the occurrence is
highly doubtful. The question which is required to be examined is whether
applicant can be said to have discharged the burden cast on him under Section 8A
inserted by Dowry Prohibition (Amendment) Act, 1986, as also the burden on him
regarding the plea of alibi.

35
Kanwal singh &ors.vs. st.of Haryana , 2006 ( 3) RCR (cri.) 783 (P&H)

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 5. CONCLUSIONS & SUGGESTIONS

5.1 CONCLUSION

 Thus, for several centuries women in India were treated like goddesses or
Devi’s. Even though there was sati, with widows voluntary taking to and
immolating themselves on their late husband’s funeral pyre, it was a purely
religious customs that had nothing to do with the cruel hegemony of the
husbands over their wives; Sati was practiced by certain classes of women,
who deemed it a great honour to die on the funeral pyre of their husband.
 Even in the early part of the Medieval period there was equality between
men and women. For Example, the Jain nuns enjoyed the same amount of
freedom as their male counterpart. There were female trustees, priestesses,
philanthropists, musicians and scholars. Sometime later however , women
were almost like domesticated pets caged in the house.
 That status of women became a matter of serious concern to the law makers.
In view of the problem which has been arising from time to time affecting
the high status of women the Legislature started enacting laws to deal with
all such offensive activities which were found to be detrimental to the peace
and progress of women in society. The problems affecting the women have
been such that there are laws enacted to deal with the penal wrongs. The
supreme purpose of all legislation is to protect the status of women and
improve their status. The law on status of women in India is the result
mostly of the constitutional developments after independence of the
Country.

41
 On attaining independence from the foreign yoke the people of India
adopted a Constitution which was designed to establish an independent,
Sovereign , Socialist and Secular Republic in the Country.
 The aim of the constitution has been to secure justice; Social , economic an
political. There are Fundamental rights guaranteed by the Constitution to the
citizens and other individuals.
 Legislations has been enacted to bring the status of women in conformity
with the vision and mission of the Constitution. While at home the force of
the Constitutional principles prompted the legislature to appraise the law on
violence against women, there were several movements abroad operating at
the International Level, for raising the status of women. The movements in
the form of Human Rights, The Gender Justice, Women’s Empowerment,
the right against discrimination all resulted in giving a new twist to the
concept of violence against women and made it a responsibility to the State
to protect women from all such unhealthy trends. The world witnessed the
new trend of treating ‘private torture’ as the responsibility of the State.
 It was in this background that the concept of violence against women came
in for a new treatment. One particular message of the new movements was
to enact legislation modifying the rules and regulations that were there in the
conventional laws; the urge was also felt of making civil law a
supplementary tool to run side by side with the rules of Criminal laws.
 Earlier also in the sphere of special law of crimes legislation has been
enacted to cover offences against women, for example , the Dowry
Prohibition Act, 1961, The commission of Sati Prevention Act, 1987, The
Pre Natal Diagnostic Techniques ( Regulation and Prevention of Misuse)
Act 1994 , etc., and the Protection of Women from Domestic Violence Act,
2005.
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 A Characteristic feature of these Legislative measures is that it is both a
substantive as well as a procedural law. The offences covered by the special
laws in respect of women included the Immoral Traffic Prevention Act,
1956, the Dowry Prohibition Act,1961, The Medical Termination of
Pregnancy Act,1971, the Indecent Representation of Women(Prohibition)
Act,1986, the Sati Prevention Act,1987 the Pre-conception and Pre-natal
Diagnostic Technique Act, 1994, etc.
 The most important of all the legislative enactments in this kind of
legislation is the legislation called the Protection of Women from Domestic
Violence Act,2005.
 Apart from the primary legislation there are also rules in the form of
subordinate legislation, enacted by the Executive authority of the State, Such
as The Commission of Sati (Prevention)Rules,1998,The Indecent
Representation of Women (Prohibition) Rules,1987, Prenatal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996, the Medical
Termination Of Pregnancy Rules, 2003, and the Protection of Women from
Domestic Violence Rules 2006.
 Domestic Violence was Recognized by the legislature as a specific criminal
offence when a new section, namely, Section498-A was introduced into the
Indian Penal Code. This Section deals with cruelty by a husband or his
family towards a married woman. Subsequently, the Court recognized four
types of cruelty, i.e.,
 Conduct that is likely to drive a woman to suicide.
 Conduct which is likely to cause grave injury to the life, limb or health of
the woman,
 Harassment with the purpose of forcing the woman or her relatives to give
some property, or
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  Harassment because the woman or her relatives is unable to yield to
demands for money or does not give some property.
 The punishment is imprisonment for up to three years and a fine. The
complaint against cruelty need not be lodged by the person herself. Any
relative may also make the complaint on her behalf.
 The parliament went a step further and enacted a new law called the
Protection of Women from Domestic Violence Act, 2005. By this
legislation, Domestic Violence is a pattern of behavior in any relationship
that is used to gain or maintain power and control over a female partner.
5.2 SUGGESTIONS
 Domestic Violence affects people of all socio-economic backgrounds and
education levels. Domestic Violence needs a coordinated and systemic
response from the criminal justice system.
 While the legislation in the form of new provisions in the Indian Penal Code
like Sec 498A and the new legislation called the Protection of Women from
Domestic Violence Act, 2005 have the most significant criminal law reforms
protecting women’s rights. But these reforms are not enough.
 Simply passing an Act and jotting it down on legal paper does not ensure
that its main purpose will be served. In order to tackle this problem, the
Ministry of Women and Child Development and all other departments have
to work in close cooperation with each other so that the menace of domestic
violence is dealt with effectively.
 Another very important feature of the new Act is women’s right to secure
housing, The Protection of Women from Domestic Violence Act,2005
provides a right to reside in the matrimonial and shared household, whether
or not she has any legal title in the household. This is a very good
development to secure peace to married women.
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 It is necessary to adopt the policy of getting the woman’s husband to execute
a “bond to keep peace”, or a “bond of good behavior” through the Executive
Magistrate who order the husband to put a stop to domestic violence. The
husband can also be asked to deposit securities (i.e.money or property) that
will be forfeited if he continues to act violently. When the victim is
approached to the police on any violation of protection orders, police must
take immediate action.
 This is how we need to look towards a co-ordinated legal approach to protect
women facing domestic violence. Only such a coordinated and holistic
approach would help persons facing domestic violence to get true relief from
the legal system.
 Awareness programs / Training programs on domestic violence shall be
conducted for all Magistrates, lawyers and police personnel.
 Implementation of the Act must be strictly followed.

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 6. BIBLIOGRAPHY

INDIAN ACTS AND LEGISLATIONS

 Constitution of India, 1950

 Indian penal code, 1860
 Criminal procedure code, 1973
 Protection of women from Domestic viokence Act, 2005
 Dowry prohibition Act, 1961
 Protection of women from domestic violence Rules, 2006

BOOKS REFERED

1. Introduction to constitution of India, 1950 - D.D.Basu.

2. Indian penal code, 1860 – Ratanlal dhirajlal
3. Commentaries on protection of Domestic violence Act, 2005 – N.K.Acharya
4. Criminal procedure code – S.N.Mishra
WEBSITES REFERED

www.justice.gov/ovw/localresources

www.nfhsindis.org

www.legalservicesindia.com

https://indiankannon.org

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