THE INDIAN JUDICIARY, DOMESTIC VIOLENCE AND THE DELUSION OF RAMPANT MISUSE ANALYSING THE JUDICIAL PERCEPTION REGARDING THE WIDESPREAD ABUSE OF DOMESTIC VIOLENCE PROVISIONS

Abstract

The judicial perception regarding the widespread misuse of domestic violence provisions by women to harass and victimise innocent husbands and their relatives has been a mainstay in numerous judicial decisions. Over time, this perception has spurred a significant dilution of the procedural aspects of Section 498A of the Indian Penal Code, 1860 and a hesitance in registering cases under it. Further, it has spurred a summary disposal of complaints in some cases under Section 498A and the Protection of Women from Domestic Violence Act, 2005. This paper analyses this judicial perception. Through a critical analysis of the judgements echoing these concerns with respect to these laws, the paper examines the grounds on which this perception is based. The author argues that in inferring rampant misuse based on these grounds, the judiciary has acted in ignorance of the various social and legal barriers faced by women in accessing and seeking justice from the legal system. The author further examines the reasons for the persistence of this perception in both public and judicial discourse, and traces this persistence to the patriarchal social structure that this perception both stems from and serves to maintain. The paper is concluded by highlighting the need for the judiciary to explicitly recognise the untenability of this perception, and to overrule the extant procedural dilutions.