This article has been written by Abhay, a student of Kirit P Mehta School of Law.

Introduction 

There had been a major loophole in the law to protect women’s lives for cases of daily domestic violence, which was limited to the private sphere. Domestic Violence Act, 2005 resulted as a tool to eliminate this lacuna and the horror of domestic abuse. Domestic Violence Act, 2005 is India’s first major effort to recognize domestic violence as a criminal offence. In addition to providing remedies, the act has created various openings and prospects for the abuse and misuse of the law. The Act certainly provides for the safety of women in a relationship from any domestic abuse. In addition to legal remedies, it expands its protections to live in-relationships and also allows for claimant’s emergency relief. This was achieved by establishing the office of the Protection Officer and acknowledging the role of the service providers. 

The government has been tasked with constructive duties to provide legal aid, medical services and shelter houses in the expectation that women will be in distress due to violence perpetrated on her. The Legislation is a statement of State’s determination that violence against women will not be accepted. And all the credit goes to the architect of the act Indira Jaising who included several significant regulations to make sure that the state provides the necessary support and services (counseling, shelter, legal assistance, service providers) and protection officers to help individuals obtain their fundamental right to a life free from violence. 

Background

The source of the Act is provided for in Article 15(2) of the Indian Constitution, which clearly states that “State can make special provisions for women and children” for the realization of the right to equality. Women’s rights activists have been taking a stand since the eighties to bring in progressive and a meaningful legislation as an answer to domestic violence. 

The Lawyers’ Collective devised the “Domestic Violence against Women (Protection) Bill” in 2001 which took into account many prevalent types of domestic abuse within the family and suggested a procedure for women to petition in the court for a security order to stop further abuse and to make sure that they need not leave their home. Over the years, comprehensive discussion among members of various NGOs such as the Lawyers’ Collective, the National Commission for Women and the Ministries of Home Affairs, Social Justice and Empowerment, Elementary Education, Justice and Legal Affairs, Health and Family Welfare, the NHRC and the Legislative Department contributed to the drafting of the bill. On 26 October 2006, the Indian Government brought into force the Protection of Women from Domestic Violence Act, 2005, which aimed to resolve the legal vacuum. Parliament passed the Act in August 2005 and the President approved it on 13 September 2005.

Different aspects of the Act 

Recognizing that domestic violence hurts women on a range of issues, it needed an organized multi-facet strategy that can provide long-term and short-term effective solutions and remedies for victims. Therefore, an essential feature of this law is the way it envisions functionality, connectivity and activity of nodal agencies at the district, state and national level (women and children (overall implementation), home dept. (police), social welfare/defense department (accountable for hiring and training of protective officers, registration of service providers etc and health (related to counseling and the provision of healthcare facilities) and of course raising the awareness about the preparation, supervision and provision of specialized services by courts, judiciary and NGOs. 

For the very first instance, it explicitly describes domestic violence not only in terms of physical violence and brutality, but also in terms of a broad description of violence including emotional, sexual and economic misconduct. It mandates for the state to establish the basic infrastructure system that ensures the presence of key facilities (counseling, shelter, legal assistance) and the appointment, registration and training of key persons like protection officers, counselors and service providers to perform their duties and functions as laid down in this Act. 

It identifies and calls for an instant and rapid multi-agency approach to a victim who has contacted one department, also advises the police to communicate with other agencies such as legal assistance, shelter, police etc., and offers temporary and ex parte measures so that the victim can get immediate safety if needed. It introduces the notion of residence measures based solely on the fact that for fear of being vulnerable, many women remained in abusive ties. It expands the implementation of domestic violence law to live-in relationships and all women living in a joint household in a domestic relationship, not just spouses, unlike previous legislation dealing with family relationships that were confined to married women. 

Role of Protection Officers and Service Providers

The PWDVA permits complaints of domestic abuse to be brought by the aggrieved victims themselves, protection officers or service providers. The aim of the act was to provide adequate protection to women who suffer from domestic violence of any kind and it would be nullified if the act was not adequately and efficiently enforced due to inadequate protection officers and protection officers lacking the resources and climate needed to fulfill their role under the act. Acknowledging that an individual needs guidance with legal proceedings and other means of help, the PWDVA encourages Protection Officers to be appointed and acknowledges the role of Service Providers in providing medical, housing, legal, therapy and other support services. The Protection Officer is the person responsible for assisting women in making use of such services, as well as assisting them in securing the correct order under the Act.

Duties and functions of Protection Officers

Protection officer shall help the Magistrate in the execution of his duties under this Act by reporting to the Magistrate a domestic violence incident in the form and manner specified, upon receipt of an allegation of domestic violence and transmit copies thereof to the police officer in charge of the police station within the limits of the local jurisdiction of which domestic violence is the responsibility. An application should be in the form and manner provided to the Magistrate, if the aggrieved party so desires, seeking relief for the issuance of an order of defense. He must ensure that legal assistance is given to the grieved individual under the 1987 Legal Services Authority Act, and make available the specified form in which a complaint is to be made available free of charge. 

He must keep a list of all service providers offering legal help or therapy, shelter homes and medical services in a particular area under the Magistrate’s jurisdiction. He must make a secure shelter home accessible if the grieved person so needs and forward a copy of his report to the police station and the Magistrate having authority in the region where the shelter is located. He will immediately assess the grieved woman if she has suffered physical injury and forward a copy of the medical report to the police station and the Judge with authority in the area where the domestic violence is claimed to have occurred. In accordance with the procedure prescribed by the Code of Criminal Procedure, 1973, he must ensure that the order for monetary relief under section 20 is complied with and executed. The Security Officer shall be under the Magistrate’s authority and supervision and shall perform the duties levied on him by the Magistrate and the Government by, or under, this Act.

Suggestions

A minimum requirement for each state is to conduct simple district wise research to ensure that women in the most remote areas can access a protective officer and that protection officers are not so crowded that women are not required to wait months until they can receive the assistance. This must be done as soon as possible and appropriate protection officers must be appointed with minimum tenure security of three years to perform their duties effectively district wise in each state and their workload must be checked every few months and the data on the number of cases each protection officer submits in each district should be in the public domain. Delays may occur simply because the security officers did not provide the requisite paperwork. Another problem of course is to ensure that the survivor is heard by the security officers with the requisite admin support and private room. 

There are cases of protection officers who are unable to do their job because they do not have the help of the secretariat and tools including computers to word-process. Survivors are asked to have their report written up for security officers to file, which simply means charging privately that many women are unable to afford. Another choice for filing PWDVA cases in many states is to do so through a private lawyer, or through licensed service providers. Many women are unable to pay advocates legal fees and are uncertain which service providers to choose from.  

Unclear obligation and inadequate official assets, Security Officer has the duty to render domestic incident reports (DIR) in specified form and to appeal to the Magistrate according to the Domestic Violence Act. Service providers do have the right to record the DIR, if the person concerned so wishes. In reality, the duties of each position still remain ambiguous after so many years of implementation. In the consultation on the Domestic Violence Act and Reproductive Rights (29-30 November 2008), advocates across India voiced their concern about the un-specialized officers of the security. Numerous advocates pointed to the lack of training of police officers and magistrates on the provisions of the Act and its intent, as well as the lack of awareness training on the topic of domestic abuse, an old evil phenomenon in Indian culture, but newly recognized. 

This lack of preparation has resulted in the re-victimization of women in the justice system, either by police failing to respond to requests for support, by returning women home to their abusers by portraying their victimization as mere domestic disputes, or by magistrates allowing countless cases to proceed, by prolonging the court process and requiring victims to return to court to face their traumatic period. There are primarily two legal options for women who have experienced domestic abuse, one is filing for divorce via Family Court, and the other is filing an application to the Magistrate under DV Act that may go via Criminal Legal System. Often the dual system makes the legal process much more complicated and boring for them. Even, every approach’s social impression puts some stress on them. 

Conclusion

India’s entrenched and pervasive sexism against women, rooted in the patriarchal social system, makes it impossible that any strictly legal remedy would reduce rates of violence against women because violence against women is widely enforced by Indian cultural norms. Second, many fail to identify domestic violence as an unacceptable form of women’s power. Indian culture, though refusing to acknowledge the true cause of domestic abuse, expects and tolerates a certain degree of violence against women. Though Western literature regards domestic violence as a means of exercising power over the woman, in India this view does not prevail. Instead, the cause of domestic abuse is sometimes cited as “maladjustment”. 

The Act will not be successful in reducing overall rates of violence until Indian society’s patriarchal mentality is broken, Indian women are encouraged to agree that violence is intolerable, and police, security officers, service providers, and magistrate enforcement training, sensitization, and cooperation is available. In addition to enforcing the conditions set out in the Act, additional measures must be taken by NGOs and the Government to ensure that the Act is successful in protecting women. Such measures include the completion of gender sensitization training for all security officers, police, lawyers, judges and all other parties interested in enforcing the Act; the provision of advertising and legal education; the increase in the number of lawyers eligible to offer legal services to victims of domestic violence; the introduction of shelters; empowerment of women; monitoring and amending the Act as necessary; and interpretation of the Act in compliance with obligations under international treaty. While the Act is a great achievement for Indian women, NGOs and government must track the implementation of the act carefully. They should work together to eradicate the patriarchal mentality that threatens to make the Act ineffective.