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DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
SABBAVARAM, VISAKHAPATNAM, A.P, INDIA

SCOPE AND LIMITATION OF RESEARCH

LEGAL METHODS
PROF. SOMA BHATTARCHARYA

SUBMITTED BY
MANSI MISHRA
2019053
SEMESTER I
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TABLE OF CONTENTS
SL.NO TOPIC PG.NO

1. SYNOPSIS 5

2. BRIEF INTRODUCTION OF DOMESTIC 7

VIOLENCE

3. Rights of women: A Constitutional 8

Perspective

4. WIDENING OF THE SCOPE OF 10

DOMESTIC VIOLENCE ACT

5. LIMITATIONS OF THE DOMESTUC 13

VIOLENCE ACT

6. CONCLUSION 17

7. PREVENTION OF MISUSE OF SECTION 17

498A

8. BIBLIOGRAPHY 21
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ACKNOWLEDGEMENT

I have endeavoured to attempt this project. However, it would not have been feasible without the
valuable support and guidance of MS. SOMA BHATTACHARYA. I would like to extend my
sincere thanks to her.

I am also highly indebted to Damodaram Sanjivayya National Law University Library Staff, for
their patient co-operation as well as for providing necessary information & also for their support
in completing this project.

My thanks and appreciations also goes to my classmates who gave their valuable insight and help
in developing this project.
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At the time of making of the Indian constitution, it was asserted by Hansa Jivraj Mehta,

“The Indian woman has been reduced to such a state of helplessness that she has become an easy
prey of those who wish to exploit the situation. In degrading women, man has degraded himself.
In raising her man will not only raise himself but rise the whole nation…. Women form one half
of the population of this country and therefore, men cannot go very far without the cooperation of
women. This ancient land cannot attain its rightful place, its honoured place in this world without
the cooperation of women.”
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INTRODUCTION:-

Often when a problem is given for research, it is fairly general and open ended. For proper research,
the researcher needs to approach the problem in a particular manner. This narrowed approached is
termed as the scope of the research. The parameters and factors to which the researcher sticks all
throughout the researcher is known as the limitation of the researcher. The researcher has herein
has focused the project on PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE
ACT, 2005. The researcher would elaborate on the scope and limitation of the act.

OBJECT OF THE STUDY:-

 To understand Domestic Violence and its type, its scope and limitation,
 To know the difficulty involved in the concept
 To substantiate and elaborate the concept.

SCOPE OF THE STUDY:-

 The study is limited to the Protection of Women Against Domestic Violence Act, 2005 .

SIGNIFICANCE OF THE STUDY:-

 The study helps us to understand the reach (scope) and drawbacks (limitation) of the
Protection of Women Against Domestic Violence Act, 2005.

LITERATURE REVIEW:-

PRIMARY SOURCES:
 Protection of Women Against Domestic Violence Act, 2005
CHAPTER II: Definition of domestic violence.
CHAPTER IV PROCEDURE FOR OBTAINING ORDERS OF RELIEFS: Section 17
 Constitution of India
ARTICLE 15: Prohibits of discrimination on the grounds of religion race caste sex and
place of birth.
ARTICLE 16: Equality of opportunity in matters of public employment.
ARTICLE 23: Prohibition of traffic in human being and beggar and other forma of forced
labour.
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SECONDARY SOURCES:
 LAW OF PROTECTION OF WOMEN BY RAJAT BAIJAL: The book has been helpful
in pointing out certain limitations of the Act.

RESEARCH METHODOLOGY:-

 The study is based on the doctrinal method of research.

TYPES OF RESEARCH:-

 This Research is explanatory and descriptive Study.

RESEARCH QUESTION:-

 Whether the PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT

2005 has served its purpose?

CHAPTERS:-

 INTRODUCTION TO DOMESTIC VIOLENCE

 RIGHTS OF WOMEN: A CONSTITUTIONAL PERSPECTIVE
 SCOPE OF THE PROTECTION OF THE WOMEN AGAINST DOMESTIC VIOLENCE
ACT
 LIMITATION OF THE ACT
 CONCLUSION
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INTRODUCTION

A Brief Note on DOMESTIC VIOLENCE

Domestic violence is an extremely vicious and complex form of violence committed most often
within the four walls of house and within a particular deep rooted power dynamic and socio
economic structure which do not even allow the acknowledgement or recognition of the violence.
Domestic violence or family violence is a global problem.

The response to the phenomenon of domestic violence is a typical combination of effort between
law enforcement agencies, social service agencies , the courts and correction/ probation agencies.
Domestic violence is now being viewed as a public health problem of epidemic proportion all over
the world and many agency are working to fight against it. The phenomenon of domestic violence
is widely prevalent but has remained largely invisible in the public domain.

The victim's inability to access the law makes the legal remedies ineffective, and the four walls of
the so called home render the law incapable of reaching the victim which is even more tragic. All
these factors render the issue of domestic violence very different from other forms of violence,
because of the women's weak and vulnerable position inside there matrimonial home. It also
explores the myth that woman are subjected to harassment and violence on street and workplace
only and that the home is the safe heaven.

But then in the case of Loha Vs District Educational Officer, J. Vaidhynathan stated, ‘The notable
flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the
temptation to teach a lesson to their male relative and will file false and frivolous cases.’ There are
no legal provision, no law to protect men against family violence. Reasons or motives for its misuse
by women can be: Money making or To cover up for some mistake or Guilt or Disliking husband
or in-law or Extra marital affair.

Rights of women: A Constitutional Perspective

The preamble of protection of women from domestic violence act 2005 envisages its objectives, it
provides for more effective protection of rights of women guaranteed under the constitution who
are victims of violence of any kind occurring within the family and for the matters connected
therewith or incidental thereto. Thus it requires making reference to the rights of women as
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guaranteed under the constitution of India. Part 3 of the constitution under fundamental rights,
provides for certain rights to all the people of India equally but the following are some the
important articles which contain special protection to women.

(A) Article 15 prohibits of discrimination on the grounds of religion race caste sex and place of
birth. The article further provides that nothing in this article shall prevent the state from making
any special provision of women and children.

(B) Article 16 equality of opportunity in matters of public employment

(C) Article 23 prohibition of traffic in human being and beggar and other forma of forced labour.
Hence the act 2005 in the context of the constitutional rights provides the following protections to
women namely

(a) protection from discrimination on the ground of sex.

(b) Protection in public employment

(c) Protection against trafficking and forced labour.

Contravention of any of the above constitutional rights in the context of the act amounts to
violation of the provisions of the act within the meaning thereof. It also amounts to domestic
violence attracting the respondent to criminal liability.

Violence against women as Human Rights Violation an International Theory

The convention on the elimination of all forms of discrimination against women, 1979 the Vienna
accord 1994 the Beijing declaration and platform for action of 1995 are some of the important
international responses for protection of women from violence and discrimination. In fact the
United Nations committee on the convention on the elimination of all forms of discrimination
against women had recommended as early as in 1989 that the state which is party to the said
convention should provide for the protection of women against violence of any kind especially
that occurring in the family. However violence against women as human right violation changes
perception of violence against women from private matter to one of public concern. The 1980s
saw the major transformation in the articulation of women’s grievances. The diverse machinery
set up at the international level for the promotion of human rights became available to women’s
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right activists. This access to international institutions is an important development in the search
for equality. A revolution has taken place in the last two decade. Women rights have been
catapulted on to the human rights agenda with a speed and determination that has rarely been
matched in international law.
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WIDENING OF THE SCOPE OF DOMESTIC VIOLENCE ACT

Provisions Under the New Domestic Violence Law before the enactment of the Act, the term
‘domestic violence was defined narrowly to refer to only cruelty and harassment of wife, and
wife’s murder under section 498A and 304B of the IPC (Ray 2006). Continuous struggle by
women’s groups has changed the situation and ultimately Indian lawmakers have realized that
domestic violence mean not only violence related to dowry but several other forms of crimes.
PWDVA is a comprehensive law and it addresses all issues related to women in the domestic
sphere.

The Protection of Women from Domestic Violence Act, 2005 (PWDVA) has been added to the
existing laws in recent times. Although from the feminist’s point of view, the law’s treatment of
women in relation to men has not always been equal and fair, many stakeholders have hoped that
the new law would be constructive in providing relief to women from violence. Given that the law
has traditionally worked from a patriarchal perspective, attempts were made to draft the new law
from a new perspective within, however, the same framework.

The act has classified ‘domestic violence’ into four categories, namely a) physical, b) sexual, c)
verbal &emotional, and d) economic violence, and attempted to define such violence
comprehensively. The act has laid down stringent rules to prosecute a man for any type of violence
committed against women at home.

Even though the new law is framed to protect women from domestic violence committed by adult
male ‘respondents’, an aggrieved wife may also ‘file a complaint against relatives’ including
female relatives of the husband. A victim also has the right to simultaneously file her own
complaint under section 498A of the IPC. For any ‘breach of protection order’ under section 18 of
the Act, a man can be jailed for 1 year, or fined up to Rupees 20,000. Under section 31 and 32 of
the Act, such offence is cognizable and non-bailable.

The new Act goes beyond the 498 (A) of the IPC and extends protection to even female live-in
partners. Significantly, the Domestic Violence Act did not limit protection against domestic
violence to marital relationships. The most splendid part about the current legislation is that it has
adapted itself with contemporary laws and therefore in contrast to previous domestic violence
legislation, the current Act covers “domestic relationships” which happen to include “all
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relationships based on consanguinity, marriage, adoption and even relationships which were “in
the nature of marriage”. Henceforth the new legislation covers all women in abusive relationships,
regardless of whether the person responsible for is a spouse, domestic partner, or someone in a
live-in relationship.

It also protects unmarried women, siblings, and other women living with the alleged perpetrator.
This legislation for the first time introduced the concept of “shared household” that covered
women in Non-Matrimonial relationships. The term “shared household,” has been defined under
Section 2(s) of the act, may include a property of the joint family of which the male respondent is
merely one of several members. ‘No order under clause (b) shall be passed against any women’
and remove her from the shared household’.

The law empowers the court to stop any further acts of domestic violence on the woman or her
children. It also prescribes for giving possession of stridhan (property of the wifegiven by her
parent), jewelry, clothes etc., to woman and stops all transactions of any joint bank
accounts/lockers.

Further, the act provides for the right of woman to live in her matrimonial or shared household
peacefully, her right to property in which she is residing, and stops an disposing off the house
without the permission of the court. Section 20(1) of the Domestic Violence Act which empowers
magistrates to grant monetary relief in favour of the aggrieved woman. This provision ensures that
women who file complaints under new statue are not chucked out of their homes. Since it was seen
that previously implementation of this new legislation, women were chucked out of their marital
houses after filling cases against their husbands or family or both. The new legislation further
empowers the magistrate to pass an order giving access of the house to any woman who chucked
out after filling a case

LATEST WIDENING IN THE SCOPE OF THE ACT IN OCTOBER 2016

 The Supreme Court has widened the scope of the Domestic Violence Act by ordering
deletion of the words “adult male" from it, paving the way for prosecution of women and
even non-adults for subjecting a woman relative to violence and harassment. The apex
court has ordered striking down of the two words from Section 2(q) of the Protection of
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Women from Domestic Violence Act, 2005, which deals with respondents who can be sued
and prosecuted under the Act for harassing a married woman in her matrimonial home.
Referring to earlier verdicts, the apex court said “the microscopic difference between male
and female, adult and non-adult, regard being had to the object sought to be achieved by
the 2005 Act, is neither real or substantial, nor does it have any rational relation to the
object of the legislation".
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LIMITATIONS OF THE DOMESTUC VIOLENCE ACT

A review of the performance of the old and new laws on domestic violence proves that legal
measures to curb domestic violence have serious limitations. They could neither guarantee any
reduction in the extent of such violence, nor could they expedite the justice delivery system in
India. Much remains to be done to ensure gender justice in a patriarchal society.

It is true that in a patriarchal society like ours, assertion of rights by women as well as increasing
participation of women in public life may also engender hostile responses from their male
counterparts in both public and private spheres.

The Domestic Violence Act, 2005 was enacted with a view to give protection to women from
domestic violence. However, the misuse and abuse of Domestic Violence Act, 2005 is a matter of
serious concern for the courts today. A careful screening of the complaint is required to ensure that
the complaint so filed by a woman under this law is not manipulative or a measure to take revenge
against a man. The act is argued to be highly inclined in favour of women and this has raised fear
about its likely misuse to harass the male relatives. There were instances of Section 498A
becoming an extortion scam. The law is violative of section 14 and 15 as it supports gender
biasness. The main purpose of the Act was to protect the women against abuse/violence and not to
create a civil right to file a suit without any reasonable cause.

There is reason to believe that some of the offences mentioned in the act cannot be proved. For
example, how can one furnish evidences regarding any ‘sexual violence’ being committed by a
husband? The act has also been criticized for lack of clarity. ‘Insults’ and ‘jibes’ are mentioned in
the new act under ‘emotional violence’ without providing any standard definition of the terms.
Ambiguity in the law increases the apprehension of its misuse.

Mental and verbal abuses have the potential to be misinterpreted while causing grievous harm.
Quarrels and marital disputes cannot be defined as mental and verbal abuse. A significant portion
of quarrels and disputes have arisen following refusal of the husband to move to a separate house,
late working shifts either by wife or husband, gifts to be given to relatives, stay of relatives, dispute
over household responsibilities between mother-in-law, sister-in-law, mother, sister and brother.
The new Act seeks to cover the female live-in partner also and thus it gives, though indirectly,
legitimacy to the practice of live together. One may argue that the practice of live together does
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not in itself reflect ‘women’s liberation’ in the Indian context. It may rather promote a culture of
free sex and may make the position of women more vulnerable in a society that is not known for
quick justice. The most striking objection against the new law is that it targets the male offenders.
This objection is only partly valid as female relatives of a male offender may also be booked under
the Act though female offenders cannot be singled out for any act of domestic violence on women
(Lawyers Collective 2009). Our experience however proves that female offenders are hardly
booked under the PWDVA although there are a few instances of aggrieved wife filing complaint
against female relatives where the husband is the main accused. As the ‘spirit’ of the law is to
protect the female members of a family, women offenders can at best be warned by judges against
any violation of the rights of the ‘aggrieved person’. Hence, this law will be of no help to sort out
several family-centered quarrels involving mainly the female offenders. In some of the instances,
however, PWDVA is found to target male relatives even though the offender is female. Filings of
a few of such false cases however do not represent a trend in itself. Yet, they are a testimony to
the fact that provisions of PWDVA may encourage false case filing against male relatives also.
This proves the limits of the new law to settle domestic issues within the family structure.

In the Indian condition, if a victim fails to garner support in view of the poor economic conditions
of the parents or other relatives, she is left to the mercy of the abusive husband to continue a painful
life. It is in this context that PWDVA has failed to rescue the victims by implementing court orders
or providing quick justice to the victim. Lack of civil society actions should also be seen in the
wider context of prevailing social structure.

Domestic violence can be Psychological Abuse, Social Abuse, Financial Abuse, Physical Assault
or Sexual Assault. Violence can be criminal and includes physical assault or injury (hitting,
beating, shoving, etc.), sexual abuse (forced sexual activity), or stalking. Sexual violence
particularly needs to be recognized as a form of cruelty not only because of its high prevalence
within marriage but also because the definition of rape within Sec 376 IPC specifically excludes
marital rape as an offence. Section 498A does not address these different forms of violence
specifically, and addresses “cruelty” very generally, as any act that is likely to drive the woman to
commit suicide or to cause grave injury or danger to life. As a result, it often is at the discretion of
the police officer to assess whether the sexual abuse or verbal and psychological abuse faced by a
woman from her husband or in-laws would qualify as cruelty under Sec 498A or not.
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 Major drawbacks of the Act

The major drawbacks of this law are as follows:

a) Preference to women:

The Act assumes that only women are victims. As per this law, only a woman can file a
complaint against against a man. A man has no rights under this law.According to Section
32(2) of the Act, the court concludes that the testimony of the victim (woman) is always true
and there will be no need for any supportive evidence to prove that an offense has been
committed. This is very dangerous for innocent men since they are left with absolutely no
remedy against the women who can anytime lodge false complaints due to certain grudge or
revenge against them.

b) Potential chances of misuse:

Secondly, there are potential chances of its misuse. If a woman lodges complaint that there was
a verbal and emotional abuse by her husband, then she needs to prove nothing.According to
Section 18 of this Act, a magistrate can take measures to protect the woman from any acts of
violence that are even likely to take place in the future. This means that the woman get a upper
hand in protection and the person against whom they have complained can be punished, even
though he may not have committed any act of violence and there may be only a chance of
occurrence of the violence in the future.

This Act also says that the information regarding an act of domestic violence does not
necessarily has to be lodged by the woman herself but can be lodged by any person who has
reason to believe that such an act has taken place or is being so committed. That is even the
neighbors and relatives can take an initiative on behalf of the victim. This is a sheer injustice
because anyone can lodge a complaint on behalf of the woman without any authentic proof or
evidence.

The fact that the complaint lodged by a woman will be always treated as true and genuine
opens up potential chances of misuse where innocent men will be accused and implicated of
false charges.
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c) Definition of domestic violence:

The third drawback of the Act is that the definition of domestic violence is not well defined.

An insult is also considered as a domestic violence. It is true that differences may arise in a
marriage anytime since there may be lack of proper understanding between the couple. Many
people try to work on this and try to sort out their differences. While some women approach the
court even for minor issues and thus, men feel threatened by the enactment. This law will therefore
lead to more divorces and breakdown of a family.
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Conclusion

Quantifying psychological abuse is extremely difficult, and very few studies have been conducted
to establish prevalence rates of this type of violence. Qualitative studies that have been undertaken
conclude that it is just as damaging to one's health to be continuously psychologically abused as it
is to be physically abused. Undermining an individual's sense of self esteem can have serious
mental and physical health consequences and has been identified as a major reason for suicide. For
some women, the incessant insults and tyrannies which constitute emotional abuse may be more
painful than the physical attacks because they effectively undermine women's security and self-
confidence.Violence against women has a far deeper impact than the immediate harm caused. It
has devastating consequences for the women who experience it and a traumatic effect on those
who witness it, particularly children. Stringent laws regarding the aforementioned problem needs
to be framed.

Whereas at the same time the law at present is grossly inadequate to tackle the problem of domestic
violence. It makes women more superior to men. According to our Constitution, we all have equal
rights, irrespective of caste, creed, gender etc. This means that the law should offer equal protection
to both men and women. Moreover, the law needs to be made more practical by defining what
constitutes domestic violence punishable under this Act. When a person who has not committed
any crime is threatened under the law, it is a sheer injustice to that innocent person.

Prevention of misuse of 498A

The Supreme Court laid down comprehensive directions to prevent the misuse of the provision of
Section 498A, IPC.

Family Welfare Committee

The constitution of one or more Family Welfare Committees in every district which shall
preferably consist of three members. Such a constitution is to be made by the District Legal
Services Authorities. The members may be volunteers/social workers/retired persons/wives of
working officers/other citizens or anyone who may be found suitable and willing. Frequent review
of constitution and working of such committees in addition to the yearly review which is a
minimum requirement. Such review shall be done by the District and Session Judge of the district
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who is also ex-officio chairman of the District Legal Services Authority. The Committee members
will not be called as witnesses. Every complaint has to be referred to the Committee and the
committee has to submit the report to the authority who referred to such complaint. The report may
be then considered by the Investigating Officer or the Magistrate on its own merit.

The work of the committee includes looking into every complaint under Section 498A received by
the police or the Magistrate. No arrest should normally be effected till report of the committee is
received.

Investigating Officer

Investigating Officers to be designated within a month from the delivery of judgment to investigate
the complaints under Section 498A and other connected offences. Such designated officer may be
required to undergo training for such duration (not less than one week) as may be considered
appropriate. The training may be completed within four months from the date of delivery of the
judgment.

Settlement

In cases where a settlement is reached, the District and the Sessions Judge to dispose of the
proceedings. Such disposal also includes the closing of the criminal case if the dispute primarily
relates to matrimonial discord. The District and Sessions Judge may also nominate any other senior
Judicial Officer to do the same.

Bail Matters

Cases where a bail application is filed with at least one clear day’s notice to the Public Prosecutor
or the complainant, the same may be decided on the same day. Recovery of disputed dowry items
may not by itself be a ground for denial of bail if maintenance or other rights of wife or minor
children can otherwise be protected. Further, in dealing with bail matters, certain things such as
individual roles, the prima facie truth of the allegations, the requirement of further arrest or custody
and interest of justice must be carefully weighed.

Issuance of Red Corner Notice

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In respect of persons ordinarily residing out of India, impounding of passports or issuance of Red
Corner Notice should not be a routine.

Clubbing of cases

It will be open to the District Judge or a designated senior judicial officer nominated by the District
Judge to club all connected cases between the parties arising out of matrimonial disputes so that a
holistic view is taken by the Court to whom all such cases are entrusted.

Personal appearance

Personal appearance of all family members and particularly outstation members may not be
required. Further, the trial court ought to grant exemption from the personal appearance or permit
appearance by video conferencing without adversely affecting the progress of the trial. However,
the Court further said that these directions will not apply to the offences involving tangible physical
injuries or death.

The shortcomings of the Domestic Violence Act should not, however, undermine its necessity in
the Indian context. Domestic violence constitutes the major type of crimes committed against
women in the country. The women in India, irrespective of socio-cultural differences, continue to
be exploited, harassed and tortured in domestic sphere. Surprisingly, certain myths are also
prevalent as part of the patriarchal ethos which prove that violence is ‘normal’ within family. Often
the abusive men is stereotyped as 'alcoholic', ‘mentally ill’, or ‘very angry in nature’, who would
normally not commit any violence! These myths are dangerously misleading and research has
proved that domestic violence cannot be controlled unless the rhetoric of male domination is
challenged seriously. Hence the ‘females bias’ of the recent act or its potential for being misused
should not be exaggerated, even though it necessary to be careful about such deviations.
Nevertheless, the passing of the new act once again reveals our dependency on the administrative
and legal machinery to prevent gender crimes within the prevailing patriarchal social structure.
Hence, there remains serious concern about possibility of the new law to make qualitative changes
in the life of women within family.
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The varying causes which can spark the violence within the four walls of homes need to be
analysed carefully and a wise study of the factors causing the violence may prevent a family to
suffer from the menace of domestic violence. The domestic violence may have a wider and deeper
impact in life of the victims. A proper societal-legal environment has to be built to make the houses
safe and secure for the woman. India cannot prosper by keeping half of its population under duress.
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BIBLIOGRAPHY

BOOKS

1. PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT, 2005

2. LAW OF PROTECTION OF WOMEN BY RAJAT BAIJAL