Criminal Law on Domestic Violence: Promises and Limits

Author(s): Jayna Kothari

Source: Economic and Political Weekly, Vol. 40, No. 46 (Nov. 12-18, 2005), pp. 4843-4849
Published by: Economic and Political Weekly
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 Criminal Law on Domestic Violence
Promises and Limits
Domestic violence needs a coordinated and systemic response from the justice system. While
Section 498A of the Indian Penal Code is one of the most significant criminal law reforms
protecting women's rights, it is not enough. We need to remember that criminal law is indeed
a blunt tool for it is difficult to change police culture; though the law may consider domestic
violence against women an offence, thepolice may still not comply and implement it effectively. In
order to move towards an effective working of Section 498A, it is crucial that we adopt a new
model of policing - the victim empowerment model, which will put in place pro-arrest
procedures and social service networks at the police station. It is also important to have civil
law remedies to provide protection to women victims of domestic violence and the recently
passed Protection of Women from Domestic Violence Bill, 2005 is significant in that context.

JAYNA KOTHARI

Sec 498A, we need to not only review the limited definition of

Introduction "cruelty", but also put in place innovative policing guidelines
and a social service network for women, so that domestic violence
n June 23, 2005 the cabinet approved the Protection of is given a coordinated response and a holistic legal approach to
Women from Domestic Violence Bill, 2005, after whichempower women is adopted.
it received assent from Parliament. This approval brings
to fore a new civil law on domestic violence, which provides II
immediate emergency remedies for women facing violence suchDomestic Violence and Criminal Law Reforms
as protection orders, non-molestation orders, the right to reside
in the shared household, etc. At this crucial juncture it is important Criminalisation.of domestic violence in India was brought
that we re-examine the historical background of these law re-about in the early 1980s after a sustained campaign by feminist
forms, and the existing criminal law provisions against domestic
groups and women activists all over the country. Great impetus
violence mainly Section 498A of the Indian Penal Code (IPC)was imported to this movement, especially afterthe much-criticised
to understand why a coordinated approach including civil and
judgment of the Supreme Court in the Mathura rape case.2 The
criminal law remedies is needed to address violence againstdemand for the criminalisation of dowry death and domestic
women within the home.
violence was a culmination of all these struggles ending suc-
Domestic. violence has since 1983 been recognised as a crimecessfully in the enactment of Sec 498A in the IPC in 1983,
and also constitutes a considerable part of the workload of police, Sec 304B in 1986 and corresponding provisions in the Indian
prosecutors and the courts. Few would claim however that the Evidence Act, 1872.
criminal law alone can solve the problem of domestic violence,1 These criminal law reforms held great promise at the time of
which laid the foundation for the demand of a civil law to protecttheir enactment. The criminalisation of domestic violence in
women and children. It is nonetheless legitimate to ask what thethe form of Sec 498A and 304B (dowry death) sought to
task of the criminal law should be in this sphere and to examineincrease the certainty and severity of legal responses, thereby
how far it is currently successful in carrying out that task. correcting historical, legal, and moral disparities in the legal
My paper seeks to look at the present criminal law remedies protections afforded to abused women. It sought for the first
for protection against domestic violence and to evaluate whethertime to bring the issue of domestic or family violence out
they are adequate. Since 1983, has the introduction of Section 498A
of the protected private realm of the family and into the public
in the IPC proved to be a useful tool for protecting women from domain in India.
domestic violence? If not, what are the problems faced by women But despite these legal reforms, societal responses to domestic
in accessing and using Sec 498A as a tool for protection against violence still largely exclude legal intervention. Advocates for
domestic violence? Are arguments that women are misusing women who face violence within the home claim that male
Section 498A true? What changes may be recommended in batterers are rarely arrested, prosecuted, or sentenced as severely
Sec 498A, and can we see the need for changes in police guide- as other violent offenders and studies done by several organisations
lines and for introducing policing reforms? Finally, what are the and NGOs show that these claims are accurate. The police often
civil law measures needed for effective implementation of exercise discretion in avoiding arrest while responding to do-
Sec 498A so as to give better protection to women facing domestic mestic violence incidents when there are complaints. In many
violence? My paper seeks to answer some of these questions in police stations, policies for domestic "disputes" actively discour-
the hope that a deeper study of these issues would help us reachage arrest focusing instead on responses such as calling the abuser
a better understanding of the legal responses needed to addressto the police station for "conciliation" among other measures.
domestic violence. I argue that for better implementation ofPublic prosecutors fail to actively pursue cases of domestic

Economic and Political Weekly November 12, 20054843

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violence under Sec 498A, as often women turn hostile during
the prosecution and agree to drop the charges. Sentences tend
to be less serious for those convicted of domestic violence. The
result of these processes has been a higher dismissal rate for
domestic violence cases at the prosecution stage, compared to
other violence cases, and less serious sentences.
Ill
Section 498A: Some Significant Problems
Any critical analysis of Sec 498A would be incomplete without.
understanding the history of criminal law reform in India. The
demand for criminal law reform came about because of the large
number of women that were dying in their matrimonial homes
due to dowry-related harassment. Therefore, the initial demand
was for a law to prevent only dowry related violence. Sec 498A
was thus introduced in the IPC in 1983 closely followed by
Sec 304B which defined the special offence of dowry-related
death of a woman in 1986 and the related amendments in the
Indian Evidence Act 1872. It is believed that Sec 498A and
is sought to be addressed by the new Protection from
Violence Bill, 2005. For such violence perpetrated b
members of the victim's family, the criminal law of
does not provide any remedy. The only remedies availa
criminal law is if such forms of violence fall into othe
offences of the IPC such as hurt,4 grievous hurt,5 rap
raging of modesty,7 etc.
Vague Definition of Cruelty
Another significant problem with Sec 498A is that its d
of cruelty is vague and limited and does not include
of violence experienced by women within the home. W
text of Sec 498A contains one part that specifically
cruelty as harassment for dowry, the ambit of the sectio
to be much wider than that as it seeks to address all forms of
cruelty that cause grave injury or danger to life, limb or health
whether mental or physical. Domestic violence in Sec 498A is
therefore articulated in terms of "cruelty" and cruelty is defined
to mean:

Sec 304B were introduced to complement each other and be part

(a) any wilful conduct which is of such a nature as is
of a scheme, since Sec 304B addresses the particular offence
drive the woman to commit suicide or to cause grave i
of dowry death and Sec 498A sought to address the wide-scale
danger to life, limb or health (whether mental or physica
violence against married women for dowry.3 woman; or

(b) harassment of the woman where such harassment i

Protection Only for Married Women view to coercing her or any person related to her to 'm
unlawful demands for any property or valuable security
account
Since the important campaign issue for feminist groups was of failure by her or any person related to her to m
demand.
dowry-related harassment, all violence faced by women within
homes was attributed to dowry both by activists and by the state experience violence within the home in varied forms
Women
[Agnes 1998]. This resulted in their articulating a demand
and notfor
only physical or mental abuse. Women's real life ex-
a law on domestic violence only for married women.periences show that they face violence in the form of physical,
The IPC was thus amended in 1983 and Sec 498A was added.
mental, verbal, psychological, sexual and economic violence.
It reads as follows:
Sexual violence particularly needs to be recognised as a form
Sec 498A: Husband or relative of husband of a woman subjecting
of cruelty not only because of its high prevalence within marriage
her to cruelty. but also because the definition of rape within Sec 376 IPC
Whoever being the husband or the relative of the husbandspecifically
of a excludes marital rape as an offence.
woman, subjects her to cruelty shall be punished with imprison- Section 498A does not address these different forms of violence
ment for a term, which may extend to three years and shall also
be liable to a fine. specifically, and addresses "cruelty" very generally, as any act
that is likely to drive the woman to commit suicide or to cause
Explanation - for the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely grave
to injury or danger to life, as mentioned earlier. As a result,
drive the woman to commit suicide or to cause grave injury it often
or is at the discretion of the police officer to assess whether
danger to life, limb or health (whether mental or physical) ofthe
thesexual abuse or verbal and psychological abuse faced by a
woman; or
woman from her husband or in-laws would qualify as cruelty
(b) harassment of the woman where such harassmentunder
is with a view
Sec 498A or not.
to coercing her or any person related to her to meet any unlawful
In this regard, one of the most important provisions of the newly
demands for any property or valuable security or is on account
proposed Protection from Domestic Violence Bill, 2005 is that
of failure by her or any person related to her to meet such demand.
is recognises these different forms of violence and-seeks to give
This campaign of the women's groups turned out to be a definition
a broad narrow, to what constitutes domestic violence. The
short-sighted and wrongly formulated programme
Bill as it placed
relies on the UN Framework for Model Legislation on
dowry-related violence on a special pedestal. Fortunately, al-
Domestic Violence8 which mandates a broad and inclusive
though conceived as a protection against dowry harassment, the
definition of domestic violence and states:
text of Sec 498A was wide enough to apply to other situations
Art 11. Allfaced
of domestic violence. However, it applies only to violence acts of gender-based physical, psychological and sexual
by married women at the hands of their husbandsabuse by a family member against women in the family, ranging
or husband's
from simple assaults to aggravated physical battery, kidnapping,
relatives. The definition therefore neglects and delegitimises the
threats, intimidation, coercion, stalking, humiliating verbal abuse,
every day violence faced by married women at the hands of other
forcible or unlawful entry, arson, destruction of property, sexual
relatives and by unmarried women and children in their homes,
violence, marital rape, dowry or bride-price related violence,
for it is a fact that women and children face violence at the hands
female genital mutilation, violence related to exploitation through
of other male relatives as well - their fathers, brothers, uncles,
prostitution, violence against household workers and attempts to
boyfriends, live-in partners or other household members.
commit suchThis
acts shall be termed "domestic violence".

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 Any critical review of Sec 498A would require that the defi- ruling on mental cruelty. This was a case where the victim had
nition of "cruelty" be expanded and elaborated to include the committed suicide by burning herself due to constant taunts and
varied forms of violence against women within the home, so that verbal abuses faced by her from her husband and in-laws. The High
it is not left to the discretion of police officers and courts to assess Court and the Supreme Court held, based on evidence that the
whether such violence would qualify as cruelty or not. Such a continuous taunting and teasing led the deceased to such a situation
broad and inclusive definition would also be in line with the where she had been disgusted and went to the extent of pouring
definition of family violence given under the new Domestic kerosene on herself and burning. The High Court observed that
continuous mental cruelty practised on the deceased was a grave
Violence Bill, 2005 and several human rights treaties and con-
ventions ratified by India.9 and serious provocation for an ordinary Indian woman to do what
the deceased had done in burning herself.16
IV The court also held that the

Interpretation of 'Cruelty' by the Courts impact of complaints, accusations or taunts on a person amounting
to cruelty depends on various factors like the sensitivity of the
Not only is the definition of cruelty in Sec 498A vague, it has individual victim concerned, the social background, the environ-
been subjected to interpretation by the courts in ways that have ment, education, etc. Further, mental cruelty varies from person
not been advantageous to women. In several cases, the judges to person depending on the intensity or sensitivity and the degree
of the high courts and the Supreme Court have given a narrow of courage or endurance to withstand such mental cruelty. 7
definition to cruelty and to what acts constitute such behaviour.
In many cases the courts have held that the definition of cruelty Difficulty of Proving Cruelty
in Sec 498A IPC should be the same as that of the meaning of 'Beyond Reasonable Doubt'
"cruelty" within the Hindu Marriage Act 1955 and have borrowed
from that definition. On the other hand, some judges have held While the courts have held that acts of mental and verbal
otherwise. harassment, complaints, taunts, etc, are equally considered as acts
The Supreme Court in a recent decision in Arvind Singh vs of cruelty under Sec 498A, one of the most significant problems
State of Bihar?1 held that: faced by lawyers, activists and survivors of domestic violence
is the ability of the prosecution to prove the same. Although both
"cruelty" denotes a state of conduct, which is painful and distress-
ing to another. The legislative intent thus is clear enough to indicate civil and criminal law address violence against women as "cru-
that in the event of there being a state of conduct by the husband elty" and considers the definition to be the same, the requirement
to the wife or by any relative of the husband which can be attributed of proof in civil and criminal law is very different. Sec 498A
to be painful or distressing, the same would be within the meaning of the IPC necessitates that the "cruelty" of the husband and his
of the section. 1 This interpretation is equally, if not more vague relatives be proved "beyond reasonable doubt" - a requirement
than wording of the Sec 498A! No effort was made to include of criminal law.
different forms of cruelty such as verbal, psychological or sexual This requirement of being able to prove physical or mental
or economic violence.
cruelty beyond reasonable doubt, when such cruelty takes place
within the confines of the home, is extremely difficult and almost
The Delhi High Court, in a particularly criticised and infamous
judgment in Savitri Devi vs Ramesh Chand and Ors.12 heldimpossible
that in most cases. Often there are no witnesses to cor-
roborate the victim's evidence. In the case of Arvind vs State
the definition of cruelty under Sec 498A was of a much higher
of Bihar,18 the victim who was burnt to death by her husband
degree than cruelty under civil law. Justice J D Kapoor held that:
and in-laws made a statement to her mother that they poured
Ingredients of "cruelty" as contemplated under Sec 498A are of
kerosene on her and threw a it matchstick on her. The Supreme
much higher and sterner degree than the ordinary concept of cruelty
Court held that there was no evidence to show that the victim
applicable and available for the purposes of dissolution of marriage,
suffered any cruelty before her death as no outside person was
i e, Divorce. In constituting "cruelty" contemplated by Sec 498A
called to give evidence. The court held that the evidence of the
IPC the acts or conduct should be either such that may cause danger
mother could not be relied upon as she was an interested witness,
to life, limb or health or cause "grave" injury or of such a degree
and thus reached the conclusion that there was not sufficient
that may drive a woman to commit suicide. Not only that such
evidence to prove the charge of Sec 498A!
acts or conduct should be "wilful", i e, intentional. So to invoke
the provisions of 498A IPC the tests are of stringent nature andIn cases of mental cruelty, evidence of the same is very difficult to
intention is the most essential factor. The only test is that act
produce
or and different criteria need to be evolved to measure injury
and hurt in a domestic situation.19 In most cases of Sec 498A
conduct of guilty party should have the sting or effect of causing
grave injury to the woman or are likely to drive the woman to
which reach the courts, the woman is dead and the charge of
commit suicide is of much graver nature or endangering life, limb
Sec 498A is made along with the charge of dowry death, murder
or physical or mental health. It involves series of systematic,
or abetment to suicide, and in such cases it is even more difficult
persistent and wilful acts perpetrated with a view to make theto
life
gather evidence to prove cruelty, unless the victim has written
of the woman so burdensome or insupportable that she may be
letters specifying acts of cruelty or given a dying declaration.
driven to commit suicide because of having been fed up with
marital life.13 In Gananath Pattnaik vs State of Orissa,20 the Supreme Court
had only hearsay evidence about cruelty to the victim, i e, evidence
On a more positive note, the courts have frequently heldgiven
that by the dead victim's sister, who testified and stated that
cruelty under Section 498A would not only mean physical butshe
also
used to complain to her of assault and harassment from the
mental cruelty, which includes mental torture and harassment.
husband
14 and in-laws. The victim even told her that her child used
In Mohd Hoshan vs State of AP,15 the Supreme Court gave an taken away from her, she was not treated well and several
to be
interesting judgment upholding the Andhra Pradesh High Court
demands for dowry were made. But the Supreme Court held

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that this evidence was not legally permissible as evidence; the
testimony was therefore not legal evidence to prove cruelty of
the accused against the deceased. The court held that since
hearsay evidence was only permissible if it related to the cause
of death of the victim and not otherwise, it could not be admitted.
Such strict rules of evidence and the technical approach taken
by many judges make it almost impossible to prove cruelty under
Sec 498A in most cases. These, among others, are some of the
most serious problems of the law.
V be accepted that wives can still love their spouses and hope that
Sec 498A and the Allegation of Misuse
In the last 20 years of criminal law reform a common argument
made against laws relating to violence against women in India
has been that women misuse these laws. The police, civil society,
politicians and even judges of the High Courts and Supreme Court
have offered these arguments of the "misuse"of laws vehemently.
The allegation of misuse is made particularly against Sec 498A
of the IPC, and against the offence of dowry death in Sec 304B.
One such view was expressed by former Justice K T Thomas
in his article titled 'Women and the Law', which appeared in
The Hindu.21 The 2003 Malimath Committee report on reforms
in the criminal justice system also notes, significantly, that there
is a "general complaint" that Sec 498A of the IPC is subject to
gross misuse; it uses this asjustification to suggest an amendment
to the provision, but provides no data to indicate how frequently
the section is being misused. It is important therefore that such
"arguments" are responded to, so as to put forth a clearer picture
of the present factual status of the effect of several criminal laws
enacted to protect women.
A study of court decisions in the state of Maharashtra carried
out by the Women's Studies Unit of the Tata Institute of Social
Sciences (TISS) showed that only 2.2 per cent of cases brought
under Sec 498A during 1990-96 resulted in conviction !22 Another
study done by Vimochana in Bangalore during the years 1998-99
on cases relating to dowry death and domestic violence based
on the Karnataka State Crime Records data shows that only 22
cases under Sec 304B and 498A were disposed of in 1998.23
Out of these, none resulted in conviction - four were acquitted
and 18 were disposed by other methods. In 1999 too, there were
no convictions - only two acquittals and 19 "other disposals".
The latter category of other disposals is an euphemism for
"compromise cases", in which victims' families are induced or
threatened into letting the police drop proceedings against the
accused - a totally unacceptable procedure since criminal cases
are not compoundable like civil actions.
Another significant study done by TISS on Sec 498A com-
plaipts received in four police stations in Mumbai in 1999
revealed that 40 per cent of these were filed by family members
after the women were dead. This shows that in almost half of
the cases of domestic violence, the women's family only ap-
proaches the police after she is dead.
Therefore, Justice K T Thomas' allegations that "the conviction
rate of the offence of Sec 498A and Sec 304B is comparatively
high and its punishment is by no means light", is factually
incorrect. Even the 2003 Malimath Committee report, which
alleges that Sec 498A is subject to gross misuse, provides no
data to indicate how frequently the section is being misused. This
suggests that the committee was acting on conjecture rather than
research or independent study.24
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While it is true that many of the cases under this provision
are withdrawn, it is not because the women are misusing it, but
more because they are often coerced into withdrawing the cases
by their in-laws, relatives, families and the police. Very often,
women who do complain to the police for protection from
domestic violence are reluctant to take their husbands to court
- they may fear reprisals, the family unit could be broken and
financial hardship could result, should he be sent to prison. In
addition it is quite common for wives to feel that they do not
want to be the cause for their husband's imprisonment. It must
the marriage can be saved despite the husband's past actions.
They may also fear the negative publicity incurred by the family
as a result of the criminal proceedings.
Domestic violence and abuse by spouses and family members
are complex behaviours and the social organisation of courts,
the police and legal cultures systematically tend to devalue
domestic violence cases. Sec 498A was introduced in the IPC
in 1983 and the reforms of the past 20 years have not been
adequately evaluated at all by the government with respect to
their deterrence goals, despite the institutionalisation of law and
policy to criminalise domestic violence. A programme of research
and development is urgently required to advance the current state
of knowledge on the effects of legal sanctions on domestic
violence. The narrow or perhaps almost negligible study done
by law enforcement agencies about the deterrent effects of legal
sanctions for domestic violence stands in high contrast with the
extensive efforts of activists, victim advocates and criminal
justice practitioners in mobilising law and shaping policy to stop
domestic violence. It is important to do these studies to correct
the general misconceptions that women are misusing the law by
filing false cases against their husbands and in-laws in order to
harass them and get them convicted. The perspective of the state
and its agencies needs to change from that of protecting the
husbands and in-laws against potential "misuse" of the laws of
domestic violence to that of implementing their real purpose -
to recognise that such violence is a crime and protect women
who have the courage to file complaints against their abusers.
VI
Strategies for Reform in Policing
of Domestic Violence
It has always been contended that the police and the courts are
failing to protect women because they generally follow a policy
of non-intervention in domestic violence. This non-interventionist
attitude and policy imposes a secondary victimisation on the woman
by trivialising the harm done to her, and offering little symbolic
support in the form of severe penalties for offenders. In order to
explore the possibilities of policing reforms in India, particularly
with regard to domestic violence cases in the background of
Sec 498A, I would like to throw light on some of the developments
and reforms in policing that have taken place in other jurisdictions.
Developments in Domestic Violence Criminal
Law Reform
In the 1960s in the US, spouse abuse was viewed by the police
and courts as an intractable interpersonal conflict unsuited for
police attention and inappropriate for prosecution and substantive
punishment [Parnas 1967]. In fact, many police departments
in the US had "hands off' policies prior to the 1970s, and police
training manuals actually specified that arrest was to be avoided
whenever possible in responding to domestic disputes
[IACP 1967].
But starting from the 1970s and by 1980, 47 states in the US
had passed domestic violence legislation mandating changes in
protection orders, enabling warrant-less arrest for misdemeanour
assaults, and recognising a history of abuse and threat as part
of a legal defence for battered women who killed their abusive
husbands. Four police departments changed their procedures not
only in response to these pressures but also pursuant to successful
litigation by women against police departments for their failure
to enforce criminal laws and to protect them from violent part-
ners.25 The array of statutory, procedural, and organisational
reforms covered nearly every aspect of the legal system. Police
departments adopted pro-arrest and mandatory arrest policies.
Domestic violence units were formed in prosecutors' offices, and
treatment programmes for abusive husbands were launched in
probation departments and among community-based groups. A
small number of jurisdictions developed coordinated, systemic
responses that brought to bear the full range of social controls
and victim supports for battered women.
In the wake of these north American reforms, there were
developments in the police response to domestic violence in
England and Wales as well. Special units were introduced which
were intended to handle the large volume of domestic violence
cases confronting the police.26 It also encouraged the presump-
tion that assailants would be arrested. These policies were in-
troduced in an attempt to make the police response to domestic
violence more effective - the assumption was that "effectiveness"
was to be measured in terms mainly of criminal justice sanctions
[Hoyle and Sanders 2000].
With the development of a feminist critique of police and court
responses to domestic violence, there was the introduction in
north America and otherjurisdictions of pro-arrest and mandatory
arrest policies. In recent years in most jurisdictions, the increased
policy preference toward arrest in cases of domestic violence has
been coupled with a growing desire to limit police discretion
in the decision of whether to make an arrest. The result has been
the widespread implementation of mandatory arrest policies,
whether adopted by statute or by administrative edict.
Under these policies, the police response is no longer based
upon their assessment of the victim's commitment to the prose-
cution enterprise. Coupled with this there has been a more
co-ordinated response to the problem, involving the provision
of support networks for the victims.
The Minneapolis Domestic Violence Experiment
The Minneapolis Domestic Violence Experiment is perhaps
the most widely cited and influential criminal justice experiment
in recent criminological policy literature. The Minneapolis
Domestic Violence Experiment [Sherman and Berk 1984] was
a critical event in changing public and scholarly perceptions of
domestic violence in the US from a "family problem" amenable
to mediation and other informal, non-legal interventions [Bard
and Zacker 1971] to a law violation requiring a formal criminal
justice sanction.
In that experiment, street-level police officers were asked to
select the most appropriate response to domestic violence out
of the following three treatments: (1) arresting the suspect,
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(2) ordering one of the parties out of the residence, and (3) ad-
vising the couple. Using victim interviews and official records
of subsequent police contact, Sherman and Berk reported that
the prevalence of subsequent offending - assault, attempted
assault, and property damage - was reduced by nearly 50 per
cent when the suspect was arrested. On the basis of the results
from what they emphasised was the "first scientifically
controlled test of the effect of arrest on any crime", Sherman
and Berk concluded that though the findings, the result of one
experiment, did not necessarily imply that all suspected assailants
in domestic violence incidents should be arrested and other
experiments in other settings were needed to learn more, the
preponderance of evidence in the Minneapolis study strongly
suggested that the police should use arrest in most domestic
violence cases.
Following the Minneapolis experiment, several other such
studies were done in the US, and while their results were not
as unanimous in the favour of arrest, they did show a prepon-
derance of reduction of future assault when the perpetrator was
arrested. The distinction between mandatory and preferred (or
presumptive) arrest policies is quite significant in that a man-
datory arrest policy directs action and limits discretion, whereas
a presumptive arrest policy simply services to guide, albeit
strongly, officers' use of discretion in the direction of making
an arrest. The adoption of a mandatory arrest policy is based on
the theory and assumes that administratively eliminating officer
discretion will actually lead to a change in the officers' behaviour
on the street.
Policing Reforms and Pro-Arrest Policies in India
In India however, the position on policing and arrest policy
for domestic violence cases is still what it used to be in north
America in the 1960s and 1970s; the police adopt a strong non-
interventionist approach and the abuser is arrested only in severe
cases of violence. In some cases there are even written admin-
istrative directions to police officers to refrain from filing charges
against abusers in domestic violence complaints. For example,
in New Delhi, all police officers in the special Crime Against
Women Cells (CAWCs) were even issued a circular discouraging
filing of FIRs under Section 498A in domestic violence cases
and it was only with the permission of the deputy commissioner
of police that an FIR under Sec 498A could be filed.
With the development of criminological policy for domestic
violence in several jurisdictions, it is time that we borrow and
learn from these developments and change our policing strategies
from the traditional non-interventionist approach to a pro-arrest
and victim empowerment model. Pro-arrest policies either in the
form of police guidelines or state circulars are a crucial reform
in policing which need to be implemented in domestic violence
complaints especially under Sec 498A. At a policy level, the need
for arrest of offenders needs to be inculcated into the police
culture as this arrest, even if for a few hours, can protect the
women and child victims from further harm. These reforms in
policing have been tried, tested and studied at great length in
several jurisdictions and have after many levels of empirical study
been found to be effective tools for the police.
However, a pro-arrest policy should not be misunderstood,
since the common argument against it would be that in many
complaints of domestic violence the women victims themselves
may not want the police to arrest the abuser. While this is true,
such views are not formed in the abstract but within the context In India till date, a woman has not been able to obtain a
of violent relationships. Many women do not seek arrests because restraining order against a violent husband unless she was willing
of the fear of retaliation and also in part due to the controlling to file for divorce or judicial separation at the same time. Even
behaviours of their violent partners. Relying on the victim to decide in such cases, when injunction orders are available their enforce-
whether arrest should be made or not has proved to be harmful ment is weak with absolutely no penalties for violations. Also
for women, and this victim-choice approach to arrest has been injunctions and protection orders are rarely granted by the courts
criticised on many grounds. In many of the cases, the violence on an emergency basis. This ancillary nature of an injunction
against these women continues. Frequently the women are also in India is one of the most serious flaws in civil laws in India
put under pressure by their community or extended family, or today as it forces a woman into legal action of the kind that she
alternatively they are isolated from sources, which might support may not have wanted.
an alternative course of action [Hoyle and Sanders 2000]. Reforms in protective and restraining order civil legislation
is needed to enable emergency, ex parte relief that includes not
Hoyle's Victim Empowerment Model only 'no contact' provisions but also economic and other tangible
reliefs for battered women. These reliefs, and the application of
In opposition to this, a victim empowerment model of pro- criminal laws, should be extended to women in unmarried
arrest policies is suggested for better implementation of Sec 498A, cohabiting couples and to divorced or separated women.
where arrest in domestic violence cases is mandated as a preferred To address this gap, the new civil law on domestic violence,
policy for the police along with other services and programmes. the Protection of Women from Domestic Violence Bill, 2005
Arrest, whether or not followed by prosecution, does not in itself which was approved by the cabinet and passed by both houses
result in the reduction of domestic violence. Research has shown of Parliament in the monsoon session of 2005 is extremely
that arrest can help to reduce violence only when it is part of a significant. It provides for emergency and ex parte injunctions
package of wider social interventions [Hoyle and Sanders 2000]. and non-molestation orders, whether or not any other relief is
Several criminologists working on domestic violence related sought in the proceedings by the victim. Most notably, the law
policing have placed emphasis on the need to concentrate on seeks to protect all women and children facing violence at the
remedies from the point of view of the victims and to focus on hands of their family members such as husbands, fathers, broth-
whether the remedies would empower the victims. Carolyn Hoyle ers, live-in partners, etc, and not merely from their husbands.
thus suggests implementing a "victim-empowerment" model of Having a civil law which provides emergeny protection and
policing which includes arrest and other social services [Hoyle tangible relief in addition to criminal law remedies of arrest would
and Sanders 2000]. As Stark (1996) holds, the pro-arrest policy be necessary to give complete protection and safety to women
should be thought of as a "package of goods" that may include facing violence.
everything from a mere warning, handcuffing or an arrest warrant
through a weekend in jail, mandated treatment, community VIII
intervention programmes and real prison time [Stark 1996]. Conclusion
While pro-arrest policies would serve to actually deter violence,
as proved by a number empirical studies discussed earlier, the Domestic violence needs a coordinated and systemic response
symbolic component of criminalisation policies may also be from the justice system. While Sec 498A has been one of the
intended as a general deterrent to convey the message that legal most significant criminal law reforms protecting women's
consequences are likely and severe if a man assaults his wife. rights, this reform is not enough. Ultimately we need to
The substantive goals of such a policy would be to implement remember that criminal law is indeed a blunt tool, as it is very
both specific and general deterrent threats to reduce the incidence difficult to change police culture; though the law may consider
of domestic violence.
domestic violence against women an offence, the police may
There are also reasons beyond deterrence for a pro-arrest policy. still not comply with the law and not implement it effectively.
These include: providing a standard against which to judge Therefore, in order to move towards an effective working of
variation in police response; providing immediate protection Sec 498A and other criminal law remedies, it is crucial that we
from current violence and giving victims time to consider their put in place a new model of policing - the victim empowerment
options; reducing the overall incidence of domestic violence both model as described above. A model that will put in place pro-
directly and by sending a clear message that violence is unac- arrest procedures and social service networks at the police station
ceptable; serving a "retributive" function by acknowledging that in order to give the victim alternative support services is needed.
police service is a resource previously not available to women Most importantly, we need to work on standard and regular
on an egalitarian basis; providing victims access to services and policing, which will ensure that domestic violence is taken
protection that would not be available outside the criminal justice seriously.
system. In addition to stepping up measures for better policing it
is imperative to have a civil law which addresses domestic
VII violence. The recently approved domestic violence bill, 2005
Civil Law Remedies contains remedies such as ex parte injunctions without the
need for filing for divorce or maintenance, protection orders,
Lastly, for effective implementation of Sec 498A and other non-molestation orders and non-contact orders, which would
criminal law remedies in terms of providing protection to women help the woman while criminal action is being taken against
victims of domestic violence, it is crucial that civil law remediesthe abuser to prevent him from making contact with her
in the form of protection orders, injunctions, non-molestation and inflicting more violence. Therefore we need to look
orders, etc, are in place as well. towards a co-coordinated legal approach to protect women

4848 Economic and Political Weekly November 12, 2005

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facing domestic violence. Only such a coordinated and holistic 20 (2002) 2 SCC 619.
approach would help persons facing domestic violence to get 21 K T Thomas 'Women and the Law', The Hindu, February 19, 2004.
22 TISS Study 1996.
true relief from the legal system. [id 23 Vimochana Study 1999.
24 'Malimath Report: Delusions of Gender-Sensitivity', Human Rights
Email: jayna.kothari@ashiralaw.co.in Features, CounterCurrents, November 17,2003. www.countercurrents.org.
25 Scott vs Hart, US District Court for the Northern District of California,
Notes C76-2395; Bruno vs Codd 47 NY 2d 582, 393 NE 2d 976, 419 NYS
2d 901 (1979); and Thurman vs City of Torrington 595 F Supp 1521 (1984).
26 Home Office Circular 60/90.
I A Cretney and G Davis. 'Prosecuting "Domestic" Assault' (1996) Crim
LR 162.
2 Tukaram vs State of Maharashtra (1979), 2 SCC 143. References
3 I Jaising, 'Laws for the Daughter-in-Law', The Indian Express, October 8,
2003. Agnes, F (1998): 'Violence against Women: Review of Recent Enactments'
4 Sec 323, IPC. in S Mukhopadhyay (ed), In the Name of Justice: Women and Law in
5 Sec 325, IPC. Society, Manohar Publishers and Distributors, New Delhi.
6 Sec 326, IPC Bard, M and J Zacker (1971): 'The Prevention of Family Violence: Dilemmas
7 Sec 509, IPC. of Community Intervention', Journal of Marriage and the Family,
8 A Frameworkfor Model Legislation on Domestic Violence, report of the Vol 33, pp 677-82.
Special Rapporteur on Violence against Women, Its Causes and Conse-
Hoyle, C and A Sanders (2000): 'Police Response to Domestic Violence: From
quences, Radhika Coomaraswamy, submitted in accordance with Com-Victim Choice to Victim Empowerment?', Brit J Criminol, 40, pp 14-36.
mission on Human Rights Resolution 1995/85 E/CN 4/1996/53/Add IACP
2. (1967): International Association of Chiefs of Police, IACP, p 3.
9 Convention for the Elimination of All Forms of Discrimination against
Parnas, R J (1967): 'Police Response to Domestic Violence', Wisconsin Law
Women (CEDAW). Review, Vol 31, pp 914-60.
10 (2001) 6 SCC 407. Sherman, L W and R A Berk (1984): 'The Specific Deterrent Effects of Arrest
11 Ibid, p 422. for Domestic Assault', American Sociological Review, 49, pp 261-72.
12 104 (2003) DLT 824. Stark, E (1996): 'Mandatory Arrest of Batterers: A Reply to Its Critics',
13 Ibid. E Buzawa and C Buzawa (eds), Do Arrests and Restraining Orders
14 Gananath Pattnaik vs State of Orissa (2002) 2 SCC 619. Work? Sage, Beverly Hills CA.
15 (2002) 7 SCC 414. TISS (1996): 'The Special Cell for Women and Children: A Research Study
16 Ibid, p 417. in Mumbai', Tata Institute of Social Sciences, available at http://
17 Ibid, p 418. www.cedpa.org/publications/PROWID/AME/the_specialmumbai.pdf
18 (2001) 6 SCC 407. Vimochana (1999): 'Unnatural Deaths of Women in Marriage: A Campaign
19 Violence against Women: Review of Recent Enactments (n 5). Diary', Vimochana, Bangalore.

Palakkad Pass and the cattle trail. An example of a

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