This article is written by Sidra Khan, from Amity University, Noida. The article discusses the provisions of Protection of Women from Domestic Violence Act.

Introduction

During the tenure of the United Progressive Alliance government, Protection of Women Against Domestic Violence Act (DVA) was passed on 13 September 2005. It’s a civil law which aims to ensure that a female victim of violence at home has a four-fold support system: residence orders, custody orders, protection orders and a defendant’s money supply. Women were only permitted to seek recourse to the Indian Penal Code before Protection of Women Against Domestic Violence Act, namely Section 304B (dowry death) and Section 498A. The definition under DVA, meaning is broader in terms of domestic relationship,  it includes – married women, moms, daughters and sisters were included in the “domestic relationship.”

This Act was one of the first in this area to deal in effect with the domestic violence issues taking into account all the relevant laws and sought to mitigate the many additional issues that other legislation usually faces (such as inconsistent provisions). This law is very clearly reflective of Indian man’s mentalities in the Indian context and social scenario.

Historical background

In the field of violence against women, women’s groups and organisations should take credit for the change of law. The important question of violence against women started in 1970 in the form of campaigns. A 16-year-old Maharashtra tribal girl was raped under police custody in 1972. In 1974, the session court let Mathura be a prerogative liar and agreed to the sex of the accused. The High Court in Bombay overturned the acquittal, but in 1979, because Mathura did not raise an alarm and her body showed not enough signs of resistance, the Supreme Court renewed its ruling. Around two-thirds of Indian married women are victims of domestic abuse, and 70% of married women in India between the age of 15 and 49  are victims of rape or sexual assault, according to the United Nations Population Fund, over 55% of females in India have domestic violence, especially in Bihar, U.P., M.P. in India, and other countries of the North. 

This is the most prevalent form of domestic violence. The orthodox and conservative thinking of society is one reason behind considering women physically and emotionally weaker than men. Although women today prove to be no less than men, the reports of violence against them have been far more numerous than against people in almost every field of life. There are several potential explanations and the length and width of the country are complex. New Delhi’s tandoor murder case in 1995 portrayed a horrific event of a woman being murdered and burnt by her husband to the tandoor. This was a result of the man suspecting his wife  Naina Sahni of having an extramarital affair that resulted in marital disagreement and domestic violence.

The main causes of battering women by their husbands includes, argue with the partner, refuse to have sex with him, neglect children, leave the house without telling the partner, not cook properly or on time, go about marriage, not take care of the baby’s laws etc. In certain cases, female infertility often leads to family members being targeted.

Avidness for the dowry, a male child’s desire and the spouse’s alcoholism are important factors in rural domestic violence. There have been horrific reports that young brides have been burnt alive or continually harassed for not returning the amount of requested dowry to their homes. Women in India often acknowledge their suspicion of sexual involvement with women living with other women because of their hit or fall. If the fear of remaining is stronger than the fear of leaving, you must depart. A rising Indian housewife continues to suffer from her husband and family abuse. One explanation may be to prevent suffering for children by separating them from their parents. In essence, women remain because the fear of leaving is greater than the fears of traditional and orthodox ways of thinking, so the woman does not leave the abuser. To pursue our future, knowing our history is vital. Our history must direct us in making the necessary changes to end violence. Violence against women has historically been sanctioned.

The hardships of those who came before us are important for us. We know that we honour their minds through our history, keep the flames of justice alive and it leads us to the harsh reality we still have a lot to do.

We must recognize the history in recent decades, which reflects only a deterioration of the status of women in Indian society, of domestic violence laws in the region.

The Dowry Prohibition Act was enacted in the year 1961 due to the social evil in undivided India identified as dowry. Some provinces like Sindh had their own legislation for prohibiting dowry. Under this Law “dowry” was declared a national phenomenon and required to be banned under the law. Dowry and domestic violence are essentially a denial of human rights and the rights of women to equal treatment. The 1961 law had unfortunately never stopped requiring dowry or giving it. It was the rationale for male children because giving birth to a girl means that you have to have money for a dowry. 

In the early 1980s not only did the dowry continue to raise its hot head, but it has now been associated with abuse and death in the home following marriage. The amendment was done in the year 1983 and Section498-A was inserted. A lot of mothers marched on the streets protesting the death of brides. Woman’s death at home, whether tragedy, suicide, or murder, was difficult to confirm. It was a move of mothers of dead brides who forced lawyers to think about the “dowry death” phenomenon. In 1983, it was eventually revised by the Indian Penal Code. It was a crime under Section 498A-IPC that brought cruelty to married women. 498A IPC was really useful for a fighting woman who wants to stay alive, but who was abused for lack of dowry by domestic abuse.

Section 304B was added to the Indian Penal code in the year 1986. As the scope of 498A IPC is only useful where the woman is alive and capable of lodging complaints under this section. We soon needed Section 304 B IPC to introduce the principle that death in a marriage home of women within 7 years of marriage is an offence if it is subject to pre-death, suspicious and dowry-related cruelty.

Need for the Act

In 1983, by incorporating section 498-A into the Indian Penal Code, domestic abuse was accepted as a special criminal offence. This section is about the cruelty against a  woman by her husband or in-laws. The parliament had passed a Domestic Violence Protection of Women Bill in 2001, entitled “Protecting and ensuring the rights of women victims of any violence in the family, including related or incidental issues”. 

Sadly, the Indian Constitution does not currently contain a single legislation that can deal exclusively with all types of domestic abuse. Such a law in the country is urgently needed. Sections 498-A and DVA, 2005 were also misused because of a narrow description of married women’s cruelty.

In domestic violence, only problems relating to marriage and divorce were considered a family law issue. The law deals with marriage and divorce, but not with what happens between marriage and divorce. This meant that the topic of violence against women could be raised only in the form of divorce in the marital home. Until 1984 on, when Section 498A was added to the Indian Penal Code and a crime was committed against his wife by the husband and relatives. These issues were dealt with by the criminal law. This proved to be an inadequate remedy, however, because it was more based on fear of arrest than on the rights of women. While domestic violence was invariably associated with the displacement from the marriage home, the right to live in the marriage house was not legally recognized. The courts have not been allowed to issue security orders. Section 498A does not expand the defence area to dependent, non-matrimonial, women’s family members. Only physical abuse, and that also only when combined with a dowry, has been considered domestic violence. No legislation permitted the granting of reliefs or return to a marital home or domestic security.

Important provisions of the Act

The definitions of domestic violence have been laid down under Section 3 of the Act. It notes that “A domestic abuse in case of any act, omission or action or actions of the respondent in case:

• damage or injure, or jeopardize the health, life, limb or well-being of an accused person, either psychologically or physically, including the causes of physical violence, verbal and emotional sexual abuse and economic abuse;
• harass, harm, injure or threat the person being abused with the intention of coercing him or any person related to him or her to meet any illegitimate demand for dowry, or other valuable property or safety;
• the effects of any conduct referred to in clause (a) or clause (b) threatening the aggrieved or any person related to him; or
• Injures or hurts the accused person, be it physically or emotionally.

Section 4 provides moral responsibility for members of the community at large who are aware of an act that has already been committed or, if there is any possibility of committing domestic violence in the future, to lodge a lawsuit on behalf of the victim and also means that all persons have a duty to respond to abuse. 

Section 4(1) of the Protection of Women from Domestic Violence Act notes that “anyone who has reason to suspect that an act of domestic violence has been, is or is likely to be committed may notify the” Protection Officer This also states that the source is not in good conscience immune to civil or criminal liability.

Agencies for law enforcement

Section 5 of the Protection of Women from Domestic Violence Act provides for various legislative, financial, judicial and administrative structures to assist victims of domestic abuse. The legislation provides for the granting of aid to victims and witnesses, educating them of their rights and providing immediate relief for the administrative, law enforcement, legal care and social institutions.

This section shall prescribe the duties of the police, of the protection officers of the service providers and of the magistrates to notify the offended person of their rights to obtain relief by way of a protective order, an order of monetary relief, custody order, residence order, an order of compensation or more than one such order pursuant to this Act. The word “shall” in this section’s preliminary paragraph is a compulsory order, not a requirement, or aspiration to create social responsibility for the actions of the person.

Sections 7, Section 8 and Section 10 offer social assistance to victims such as families, medical services and service providers to the government. Section 7 specifies that the person in charge of the medical facility must provide the victim with the assistance of the victim of abuse. Section 10 sets out the duties of the provider of services which requires the filing of national impact reports, the provision of medical treatment, the provision of refuge and the provision of immunity against the victim. Section 6 clarifies that shelter homes are expected to provide refuge such sections describe the legal duty of an agency to support victims of domestic abuse. 

Section 11 sets out the different duties of the Government to publicize the Act through the media, to regularly raise awareness and to train state / central, political and judicial officers, to organize various ministries and departments and the periodic review and to ensure that guidelines are established and established for the various ministries, including courts.

Duties of Protection Officer

The functions and duties of the protectors, who serve as a bridge between the court and the victims of domestic abuse, are defined in Sections 9, Section 30, Section 33 with Rule 8, Rule 9 and Rule 10. Section 8 of the Act specifies that a protection officer shall be a woman as far as possible and appointed as full-time positions. PWDVA Section 30 clarifies that the officers of protection are the public servants. Although they have some immunity, such as through actions taken in good faith Section 35, they are penalized under Section 33 for not discharging their duties. The duties and functions of the protection officers are specified by Section 9 of the Protection of Women from Domestic Violence Act, which include:

• Assisting the judge;
• Making and sending copies to police and service providers of domestic incident reports;
• Protection order application;
• Ensure that legal aid for domestic violence victims is provided;
• Maintaining a list of service providers, medical homes and counsellors;
• Making available shelter services for the accused and sending to the Judge and police copies of the relevant records;
• To submit medical examination to the complainant and to forward the magistrate and police a copy of the medical report;
• Ensure compliance with the provisions of Section 20 of the Code and execution of the monetary relief;
• And all other duties prescribed.

Relief for victims

Sections 18 to Section 22 create different forms of relief for victims of domestic violence, such as protective orders, monetary relief, custody order, residence decrees, indemnification order. The following: Whilst Section 23 provides for interim ex-parte orders, Section 26 and Section 28 are important provisions which can be fully applied to ensure relief in any court in civil, criminal or family matters and also to lay down their own procedures to deal with PWDVA applications.

Several of the regulations and procedures for obtaining relief orders are specified in Sections 12, 13, 14, 15 and 16 of the Act. Some of the important points to note in these sections are that, where applications can be made to the magistrates under Section 12, the magistrate should set the date of the hearing no later than three days after the receipt of the application, and the case should be disposed of within 60 days of the date of its first hearing. Section13 notes that the Security Officer should be informed of the hearing within two days and that a Statement of Service should be made by the Staff Officer.

Section 14 provides that either party may be instructed by the magistrate if Section 15 makes it clear that the magistrate is able to use a welfare expert’s service to support him/her, preferably with a woman, and Section 16 stipulates that the proceedings can occur on camera.

Right of a women to reside

Section 17, which sets out a woman’s right to live in the common household,is one of Protection of Women from Domestic Violence Act’s most significant and influential words. The section permits any female in a household to be permitted to reside in the common domestic household, irrespective of whether they have a right, right and gain. “The accused person shall not be expelled or removed, except by statute, from the common household or part of that family.” In addition to and not derogate from the provisions of any other law in effect at this time, the most relevant substance of this act is Section 36.

Other relevant features of PWDVA

Certain relevant things protected by the Act, apart from the above provisions that Act covers, are:

Protection to victims

The Domestic Violence Act has as its mission to ensure that victims of domestic abuse are secured. The act lays out the roles and duties of “protection officers,” public officials whose role is to ensure that victims have access to legal care, emergency facilities, courts, shelters, rehabilitation centres and hospitals. ‘The courts are also empowered to issue security orders,’ where a judge may forbid the victim from committing any act of domestic abuse against the woman or any of her employees/relatives/friends (in the case of omission, assistance or commission). The court may prevent a respondent from entering any place where she lives or even communicating with a woman. Most notably, the Court has the power to bar the defendant from alienating properties or running bank accounts owned by both parties individually or jointly. 

In the case of Azimuddin Abdul Aziz v. State of Uttar Pradesh,  the husband had argued that the Act provides for women protection only when the wife has been transferred into a separate home and is no longer applicable. The High Court in Allahabad rejected this claim, holding that the Protection Order remains successful, provided that the defendants committed acts of attack even after the woman had abandoned her home. 

Unmarried relationships

The most important aspect of the Act is that, in married or consanguine family relationships, it expanded the scope of defence against abuse to include informal or unmarried women. Section 2(f) of the Act clarifies this provision by describing a domestic relationship as “a relationship between two persons who live or have lived in common households at any time by marriage, or by a marriage connection” Two of the key issues surrounding women with domestic violence are discussed here. Firstly, it acknowledges casual or “work in” relationships by guaranteeing the rights of women who have never been married but work in marriage relationships. 

In the case of, M.Palani v. Meenakshi, the High Court of Madras best illustrates this, when the man challenged the interim maintenance award for women because they did not marry and had not lived together in the first place. The Judge dismissed his claims saying: “The statistics of both the lawsuit and counter-affidavit make it perfectly clear that the claimant and the respondents had a close and intimate relationship. As mentioned above, the law does not allow for a period of time or for a few days for the complainant and the respondents to stay or work together. It could be inferred that they both seem to have shared households and at least lived together at the time of their sex. 

Gender-specific law

The Domestic Violence Act has one of the most relevant features of it: it is gender-based; thus the provisions of the Act can only be used by women. The Law specifically describes a “person as being an aggrieved woman who is or has been a domestic person who is alleged to have been subjected to some domestic action crime. It was a contentious feature of the Act and its statutory validity was subject to legal challenges. 

In the case of Aruna Pramod Shah v. Union of India, it was claimed that Article 14 of the Indian Constitutions was violated by the DVA because only women and not men were covered under it. The Delhi High Court dismissed this claim in a strongly worded judgment that said, not baseless or unjustified, there is an impression that in India, the lot and fate of women are abjectly bleak, demanding that protective and enhancing measures against abuse of women be placed as a matter of urgency.

 

Benefits of Protection of Women from Domestic Violence Act

This legislation was adopted after the Convention on the Elimination of all Forms of Discrimination against Women. The concept of “domestic relationship” is sufficiently broad to include all sorts of home agreements, for example, when couples are not married. It was a pioneering step to include this, as well as relations that are categorized as fraudulent or bigoted.

In the case of, Bharata Matha & Ors v. R. Vijaya Renganathan & Ors, it was decided that the right to property (property owned by parents, but not ancestors) would be given to a child born from a living relationship. In other words, a woman and her child can not be threatened by economic exploitation in a living relationship. Obviously, while the property and the Hindu marriage law have greater significance, it is gratifying that children who have formed ties not related to marriage also have rights of property.

The respondent has an obligation of not wasting financial capital, to pay the victim’s compensation and to safeguard the victim not merely against abuse but also his interests. If the claimant has legal rights/ownership in his or her family, the concept of ‘shared household’ states that if she inhabited the house with the respondent and he has been violent with her, then the respondents are responsible in compliance with the Statute. This ensures that the respondent can not evict her, even though she is not legally or financially active in the house. 

The security orders are used in most situations in which the victim may probably have been taken advantage of by the respondent. Finally, the orders issued under the law must be granted to the victim as evidence-free of charge.

Need for strict laws

The adoption of Section 498-A into the Indian Penal Code in the year 1983, recognised domestic abuse as a particular criminal offence. This segment discusses the abuse of a married woman by a husband or his relatives. The Parliament passed a Domestic Violence Protection Bill for Women, 2001, “Preserving the rights of women who have been subjected to any violence within the family and dealing with matters related to it or related matters”. There is currently, unfortunately, no single legislation in the Indian Constitution that can deal strictly with all the different forms of “domestic violence”. In the region, such a law is urgently required. Sections 498-A and Domestic Violence Act 2005 were also misused because of a limited definition of marital cruelty.

The actual application of the regulation appears to have problems. In many districts, existing government officials are also given this role, and are not equipped to handle the same thing, rather than employing protection officers (see link below). They thus will not fulfil any of the tasks set out in the Act, and can not make full use of the law of their favour because of these victims. The Act also stipulated that as many as are deemed to exist as possible with respect to shelter homes. Research into successful implementation, however, found that many districts do not even have a single shelter. 

While there are a few flaws in the Act and there is still a lot to be desired for enforcement, the policy itself does seem very realistic. Yes, understanding that men often face violence is essential. Yes, the better implementation of the Act is important. However, it is also necessary to note that it was incredibly crucial to create legislation during the time of the law (and even now) in order to make it easier for women to obtain justice. This is attributed to the dowry deaths of women who have been killed as a result of domestic and sexual abuse. The Act seeks to provide women who suffer domestic abuse with streamlined processes, which has been largely successful, with access to civilian and quasi-criminal remedies.

Conclusion

Domestic abuse is neither recent nor evolving with change in the society. In all times, all ages etc., this is present. What is more, as we develop, it evolves and emerges with new forms, types, sizes, etc. The Government has taken various measures to combat the problem of Domestic Violence. Section 498A, Section 304B has been inserted to the Indian Penal Code. But these provisions were not sufficient to curb the menace. So, the Protection Of Women from Domestic Violence Act was enacted in the year 2005. The Act is a valuable piece of legislation in its entirety. In the final analysis, its weaknesses does not eliminate the enormous advantage the Act can bring to women. A positive thing about the Act is that irrespective of the ethnicity of the parties, domestic abuse is handled when many errors abusing the safeguards given by private law are made. Thus, the protection of women’s rights is a secular approach. It also applies, though in a restricted sense (male child are exempt from their jurisdiction), to child sex abuse, at a time when the crime is rife.  

References

• https://www.indiacode.nic.in/handle/123456789/2021?sam_handle=123456789/1362
• https://www.scconline.com/blog/post/2020/07/27/law-on-domestic-violence-protection-of-women-from-domestic-violence-act-2005/
• https://feminisminindia.com/2016/09/13/domestic-violence-act-india-pwdva/
• https://indiankanoon.org/doc/542601/
• https://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—ilo_aids/documents/legaldocument/wcms_172625.pdf

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