Distinction between 498A and Domestic Violence

Usually people with a non-legal background consider the provisions under 498A of Indian Penal Code and under Domestic Violence Act synonymous to each other.
Although both the provisions are meant to protect women against cruelty and harassment there are certain distinctions between the two. 

Liability and Nature of Proceeding:
  • The primary distinction between Section 498A IPC and Domestic Violence is the nature of liability attached to the provisions. Indian Penal code is a criminal law wherein the offender is reprimanded with punishment if proven guilty of committing offences enumerated within the code. Hence the acts committed under Section 498A amount to offences for which punishments are prescribed under the same section i.e. imprisonment up to 3 years and fine. The proceedings with respect to a complaint under 498A are criminal proceedings.
  • As to the Domestic Violence Act, the proceedings under the same are quasi criminal in nature and not criminal proceedings as per Code of Criminal Procedure. It means that the proceeding has some, but not all, of the qualities of a criminal prosecution. The proceedings before the magistrate and reliefs provided are civil in nature while the punishment is of a criminal nature.
Elements of the Provision:
  •  Section 498A was added to the Indian Penal Code by the Indian Parliament in 1983 in light of the rising number of cases of cruelty and dowry harassment against women. It provides protection to women from four types of cruelties performed by “Husband or relative of husband of a woman. They are.-
  1. conduct that is likely to drive a woman to suicide,
  2. conduct which is likely to cause grave injury to the life, limb or health of the woman,
  3. harassment with the purpose of forcing the woman or her relatives to give some property, or
  4. Harassment because the woman or her relatives are unable to yield to demands for more money or do not give some property.
  • The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. It was brought into force by the Indian government from 26 October 2006. The Act provides for the first time in Indian law a definition of "domestic violence", Domestic Violence as per the legislation means:
Any act, omission or commission or conduct in case it -
(a) Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Who Can file the Complaint and against Whom:
  • The complainant to be able to file a complaint under 498A must necessarily be a married woman who must be subjected to cruelty or harassment by “either” her husband “or” by the relative of her husband.
  • A complaint of Domestic Violence after the decision in Hiral P. Harsora and Ors. V Kusum Narottamdas Harsora and Ors. can be filed by a woman against any person, male or female, who is, or has been, in a domestic relationship with the complainant. Domestic Relationship includes relation by marriage, adoption, by blood or a relationship in nature of marriage.
Where can the complaint be filed:
  • Apart from lodging an FIR with the police authorities a complainant can directly file a complaint to the magistrate with respect to an offence u/s 498A.
  • On the other hand the victim of Domestic Violence has to approach either the magistrate or the protection officer or the Family Court having jurisdiction, when faced with acts constituting Domestic Violence.
Arrest and Bail:
  • The offence under section 498A is non-bailable offence hence the person accused of any act covered under the said section is required to obtain anticipatory bail to avoid arrest. However as per Supreme Court direction no anticipatory bail can be granted to the accused in an offence involving a dowry death.
The Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 has provided clear guidelines with respect to when can an arrest be made under section 498A. The Apex Court has stated that with respect to the offences punishable with imprisonment less than or upto 7 years and with or without fine, the accused cannot be arrested unless the Police Officer is satisfied that arrest is necessary on account of one or more of the following reasons:
  • To prevent accused from committing any further offence
  • For proper investigation of case
  • To prevent evidence from disappearing,
  • To prevent tampering of any evidence
  • To prevent inducement, threat or promise being made to any witness,
  • To ensure presence of such person in court
The Honorable Court has hence directed all the State Governments to instruct its police officers not to directly arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr. P. C. (Criminal Procedure Code)
  • The act of Domestic Violence being a Civil Wrong is not subject to the provisions of arrest and Bail. Under a proceeding under DV Act the Police Machinery can intervene under Section 31 of the Domestic Violence Act only in case of breach of any protection orders passed by the magistrate.
Reliefs:
  • The victim facing domestic violence is entitled to protection orders with respect to custody of children, right to residence, interim monetary relief as well monetary compensation under the Domestic Violence Act.
  • The acts falling under the ambit of section 498A IPC being offences of a non-bailable, non-compoundable nature, the accused is liable to be punished with imprisonment for a term which may extend to 3 years and fine. But in certain circumstances the court over and above sentencing imprisonment to the offender can award compensation to the wife.

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