Feb 24, 2023

Cruelty Law in India: section 498A and Protection of Women from Domestic Violence Act (2005)

Iqra Khan, VALE Fellow at the Vidhi Centre for Legal Policy and Contributor, Nyaaya

According to the National Family Health Survey 2019-2021, nearly 32% of married women’s husbands have been physically, sexually, or emotionally violent towards them. According to the latest report of the National Crimes Record Bureau (NCRB), a total of 4,28,278 cases of crime against women were registered during 2021, out of which the maximum number of cases were registered for the offence of cruelty. These cases have risen by 30% from 2017 when 1,04,551 cases were registered as compared to 1,36,234 cases in 2021. A study conducted by the Vidhi Centre for Legal Policy found that out of 98 cases of cruelty that the City Civil and Sessions Court, Mumbai disposed of between 2015 to 2020, there were only 7 convictions despite a total of 77 deaths in such cases.

How does the law define cruelty?

In 1983, the legislature amended the Indian Penal Code (‘IPC’) to add Section 498A to deal with the rising incidents of “cruelty by husband or his relatives” on women.
Cruelty against a woman can be:
1. Any wilful act by the husband  or his relatives that can drive a woman to commit suicide or cause serious injury to herself which can cause danger to her life.
This is a form of general cruelty and includes any act which endangers a woman’s mental or physical health. Mental cruelty is possible even if in-laws reside separately.

2. Harassing the woman to coerce her or any person related to her for any demand of property or valuable security or harassment on failure to meet such demand. This form of cruelty relates to dowry, where a woman is subjected to harassment or any conduct to obtain any valuable security.
Cruelty, under section 498A, is a cognizable offence. This means that police can start an investigation and arrest a person without an order from the court. The offence of cruelty is also non-compoundable so that there can be no compromise between the parties.

What is the punishment?

Any person convicted of the offence of cruelty under section 498A can be sentenced to imprisonment for a term of 3 years and is also liable to pay a fine. It is a non-bailable offence, which means that a person arrested under this section is not entitled to bail as a matter of right.

In the case of Arnesh Kumar v. the State of Bihar, the Supreme Court provided clear guidelines for when an arrest can be made under section 498A. The police officers cannot arrest directly. They first have to be satisfied on certain grounds such as chances of fleeing, tampering with evidence, hampering the investigation, or committing any further offence. 

How do courts see cruelty?

Over the years, the Supreme Court, in various cases, has included many acts as cruelty under Section 498A, including: 

Who can file a complaint?

The victim or someone on her behalf can file a complaint under section 498A of the Indian Penal Code (IPC). If such a relative is not available, then by any public servant as may be notified by the State Government on this behalf.

 Who can be prosecuted for cruelty?

Under this act, the court can prosecute:-

  1. husband,
  2. his relatives and distant relatives.

In the case of  U. Suvetha Vs. State (2009), the Supreme Court held that only a person related by blood can be prosecuted under section 498A. The girlfriend or concubine of a husband cannot be prosecuted. 

When cruelty leads to death?

In cases where the cruelty done for the demand for dowry leads to the woman’s death within 7 years of marriage and under abnormal circumstances, the police can file a case under section 304B IPC.  Under section 304B, a person can be imprisoned for dowry death, for a term not less than seven years, and it can extend to life imprisonment. 

How to file a complaint for Cruelty?

 You can file a complaint at the nearest police station or Special Police Unit for Women and Children (SPUWAC) or women cell (CAW). You can also call the Women Helpline on “1091” to file a complaint. 

To know more about civil remedies under the Domestic Violence Act, you can refer to our District-wise modules.  

Who can file a complaint under the DV Act?

Under the DV Act, a complaint can be filed by:

  1. woman who has suffered domestic violence
  2. relative of the woman, such as her parent, sibling, or child, on her behalf. 
  3. any person who has reason to believe that a woman is being subjected to domestic violence, such as a neighbor, friend, or social worker.

 Who can be prosecuted for domestic violence?

Under this act, the court can prosecute:-

  1. husband;
  2. any adult male person who is, or has been, in a domestic relationship; or
  3. any adult female person who is, or has been, in a domestic relationship 

In the case of Hiral P. Harsora v. Kusum Narottamdas Harsora (2016), the Supreme Court expanded the ambit of “respondent” under Section 2(q) of the DV, Act which defined the term “respondent” as any “adult male person”  by  changing it to “any person” to include any female living a domestic relationship such as mother-in-law or sister-in-law of the aggrieved woman.

How to file a complaint for domestic violence?

Under this act, you (a woman) can file FIR by approaching a police officer, approaching a “Protection Officer” or service provider such as an NGO registered for the purpose of this Act, or by calling the helpline number “1091”.

The Protection officers and service providers will facilitate the woman to obtain various orders under this act.

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