This article is written by Srishti Kaushal, a student of Rajiv Gandhi National University of Law, Patiala, Punjab. In this article, she discusses the provisions, important definitions and procedure followed in the Protection of women from Domestic Violence Act, 2005.
In Indian society, domestic violence against women is not an uncommon siting. A plethora of women face it in their lives, and most of them are so accustomed to it that they don’t even end up reporting it. Yet, it can not be denied that many people continue to face domestic violence. In fact, the upcoming movie ‘Thappad’ is all about a woman standing up against her husband who slapped her. It is a prime example of what is to be done in case you become a victim of this horrendous activity.
The National Family Health Survey (NHFS-4), released by the Union Health Ministry, reported that every third woman in India, since the age of fifteen faces domestic violence of some form. It also reported that 31% of married women have faced physical, sexual, or emotional violence by their spouses. The major issue is that out of these hardly 10% actually reported this violence.
Clearly, it is a major issue that needs to be dealt with and women need to realise their rights and how can they protect them. The Protection of Women from Domestic Violence Act, 2005 was introduced to deal with such cases. In this article, we will understand this Act in detail.
Who can file a case under this Act and against who?
The complaint of domestic violence can be filed by the ‘aggrieved person’. Section 2 of the Act defines this term. It means a woman who has been in a domestic relationship with the respondent (a man in a domestic relationship with such women) and alleges that he has inflicted domestic violence upon her. Domestic Relationship refers to a relationship between two people who live or have lived together in a shared household, and are related by:
- A relationship in the nature of marriage (like live-in relationships),
- Are family members,
- Are related through blood relations.
Shared household as mentioned in this clause is the house belonging to or taken on rent by the man, the house in which the man and woman lived together with shared rent, or the house in which the man and woman lived along with his joint family.
However, it must be mentioned here that not all live-in relationships are covered under the Act. There are certain requirements that must be fulfilled. D. Velusamy v. D. Patchiammal. These are:
- Both parties must behave like husband and wife;
- They must have attained the legal age of marriage;
- They should qualify to enter into marriage;
- They must voluntarily live together in the same place for a significant amount of time;
- They must have lived together in a significant household.
It was also explained that if a man ‘keeps’ a woman for the purpose of using her for sexual purposes and/or as a servant, it won’t qualify as a relationship like that of marriage.
Also, though Section 2 defines respondent as a man, the Supreme Court in the case of Sandhya Wankhede vs. Manoj Bhimrao Wankhede held that the term ‘relative’ as used in the Act has a very wide ambit and a complaint against the female relatives of the husband or the male partner can be made within its purview.
Section 3 of the Act explains the term ‘domestic violence’ in detail. It states that an act or omission will qualify as domestic violence if it:
- Harms or injures health, safety, limbs ( body organs), life or/and mental and physical well being of a woman. Such abuse can be physical, sexual, economic, verbal and emotional.
- Harms, harasses, injures or endangers the aggrieved person to coerce her or any of her family members to meet unlawful demands like dowry.
- Causes any other physical and mental injury to the aggrieved person.
Types of Abuse covered by the Act
We have already discussed the 4 types of abuse covered by the Act, as mentioned in it. However, these types were further explained in Bhartiben Bipinbhai Tamboli v. state of Gujrat. It was held that:
Physical abuse: Use of physical force against a woman such that she suffers from bodily injury or hurt. Physical assault, criminal intimidation (threaten to cause hurt) and criminal force (use force upon a person to cause him/her injury) in the form of beating, kicking, punching, abandoning the aggrieved person in a dangerous place, making use of weapons to threaten her, forcing her to leave her matrimonial home, hurting her children, using physical force in sexual situations, etc.
Sexual abuse: This is a form of physical force and includes any act in which a woman is forced to perform any unwanted, unsafe or degrading sexual activity. It includes calling her sexual names, hurting her with objects and weapons during sex and includes forced sex even by a spouse or intimate partner with whom she has consensual sex.
Emotional Abuse: Not all abusive relations involve violence and physical hurt. Many women face emotional abuse which is equally destructive. It includes verbal abuse such as yelling name calling, blaming, isolating, intimidating, showcasing controlling behaviour, insulting or continually criticising her.
Economic Abuse: Economic abuse mainly includes a woman not being provided with enough money by her partner to maintain herself and her children, through buying clothes, food, medicines, etc. It also includes not allowing women to take up employment. Apart from this, forcing her out of the house where she lives by not providing her rent, depriving her of financial resources she is entitled to under any custom or law, restricting her access to shared household also falls in this category. It also includes disposing or alienating her movable or immovable assets, valuables, shares, securities and other properties in which she has an interest.
Scope of the Act
The scope of the Act was discussed in the case of Bhartiben Bipinbhai Tamboli v. state of Gujrat. In this case, the court said that domestic violence in India is rampant. As a daughter, mother, wife, sister, partner or a single woman, several women face it in their lives, in some form or the other every day. Yet, it is the least reported form of cruelty, mainly because of social stigma and the attitude of women themselves.
Till the year 2005, the remedies available to a victim of domestic violence were quite limited. They could either go to civil court and initiate a divorce proceeding or go to the criminal court for the offence under Section 498-A of the Indian Penal Code (cruelty by the husband or his relative). Moreover, relationships outside of marriage were also not recognised. Such aspects forced a woman to stay silent. In regards to all this, the parliament enacted the Protection of Women from Domestic Violence Act, 2005. This Act provides a very wide purview to the definition of an aggrieved person (includes women in live-in relationships) and aims to protect a woman from violence inflicted by a man and/or a woman.
Hence, the Act has a wide scope and covers a large number of women who earlier had very limited remedies.
The Procedure involved under the Act
Step 1: Informing the protection officer
Any person who has reason to believe that domestic violence has been or is likely to be inflicted upon her can inform about the same to a protection officer appointed under Section 8(1) of the Act. It would be better if such a protection officer is a woman herself.
Such women would be informed of her rights by the protection officer, a police officer, service providers (any voluntary association registered under law working with the objective of protecting the rights and interests of women), or a magistrate who has received the complaint or was present when the offence occurred. These rights are:
- Such women have a right to make an application obtaining relief in the form of protection order, monetary relief, custody order, residence order, compensation order.
- They also have a right to make use of the service provided by the available service providers.
- They also have a right to make use of the services provided by the protection officers.
- They have a right to free legal services under the Legal Services Authority Act, 1987.
- They also have a right to file a criminal case under Section 498-A of the Indian Penal Code.
It must also be mentioned here that if the appointed protection officer does not perform her/his duties she/he can be liable to imprisonment upto 1 year and fine upto Rs. 20,000.
Step 2: Making a domestic incident report by the protection officer
Upon receipt of domestic violence complaints, the protection officer must make a domestic incident report to the Magistrate. This report should also claim relief for a protection order if the aggrieved person desires. Such magistrate ( to whom the report is made) would be Magistrate of 1st class or the metropolitan magistrate who is exercising jurisdiction in the area where:
- The aggrieved person resides temporarily,
- Respondent resides, or
- The place where domestic violence allegedly took place.
The copies of the report should also be forwarded to the police officer in charge of the police station within local limits of which the domestic violence allegedly took place. Apart from this, it is the duty of the protection officers to ensure that the aggrieved person gets all benefits as mentioned as her rights and maintains a list of the service providers, shelter homes and medical facilities in an area.
Step 3: Application with the magistrate
Once an application is filed to the magistrate on by the aggrieved person, someone on the behalf of the aggrieved person or a protection officer, the magistrate will fix the date of the first hearing. Such a date is usually not beyond three days from the date of receipt of an application by the magistrate. Also, the magistrate will endeavor to dispose of the application made within 60 days from the first hearing.
Step 4: Notice to the respondent
Once the date of the first hearing has been set by the magistrate, a notice shall be given to the protection officer who shall inform the informant and any other person, prescribed by the magistrate. This shall be done by the protection officer within 2 days from the date of receipt unless an extension is given by the magistrate.
Step 5: Other options that the magistrate can make use of
- Under Section 14 of the Act, the magistrate may ask the respondent or the aggrieved party (singly or jointly) to undergo counselling with a member of the service provider. Such a person must have experience in counselling.
- Under Section 15 of the Act, the magistrate can take the help of a person, preferably a woman, for discharging his functions. Such a person should preferably be working in the promotion of family welfare.
Step 6: Giving Orders
If after hearing both the parties, the magistrate is satisfied that domestic violence took place, the magistrate can pass a protection order in favour of the aggrieved party. Such protection order restricts the respondent from:
- Committing the act of domestic violence.
- Abetting in the commission of domestic violence.
- Entering the place of employment, school, etc. of the aggrieved person.
- Attempting to communicate with the aggrieved person.
- Alienate any assets, bank accounts or lockers enjoyed by either both the parties or the respondent singly, including her Sridharan.
- Causing violence to any person who helped the aggrieved person and provided protection from domestic violence.
- Committing any other act which is specified in the order given.
The magistrate may also pass the Residence Order. Such order may:
- Restrain the respondent from dispossessing or distributing the possessions of the aggrieved person.
- Direct the respondent to remove himself from the shared household.
- Restrain the respondent or any of his relatives from entering the shared household of the parties where the aggrieved person resides.
- Restrain the respondent from renouncing his rights in the shared household.
- Restrain the respondent from disposing off the shared household.
The magistrate may also direct the respondent to pay monetary relief to the aggrieved person for expenses incurred and losses suffered by her. Such relief may include (but is not limited to):
- Loss of earnings;
- Medical expenses;
- Loss caused due to destruction and damage of any property;
- Maintenance for the aggrieved person and her children.
The magistrate may also grant the custody of a child or children to the aggrieved person or person making an application on her behalf. He may also specify the visitation arrangements as well. In case he feels that visitation by the respondent would be harmful to the child, the magistrate may even refuse to allow such a visit.
The magistrate may also pass an order directing the respondent to pay compensation to the aggrieved person for the injuries, mental torture and emotional distress caused to her because of the domestic violence.
In case the magistrate feels it is necessary and is satisfied that the respondent has caused domestic violence and may continue to do so in the future, he may also pass interim and ex-parte orders.
Step 7: Steps to take in case of breach of the order given
In case the respondent breaches the protection order given by the magistrate, he shall be liable under this Act. He shall be liable with:
- Punishment upto a term extending to one year, or
- Fine ( at maximum 20,000 Rupees)
Duty of the court while dealing with cases under the Act
In the case of Krishna Bhatacharjee vs Sarathi Choudhury And Anr., the court laid down some guidelines that all courts must follow while dealing with a case under this Act. These are:
- The court must give the decision keeping in mind that the helpless aggrieved person has approached the court in compelling circumstances.
- It should also be ensured that the court scrutinizes the facts from all angles. It must take efforts to ensure whether the plea advanced by the respondent to nullify the grievances of the aggrieved person is legally and factually correct.
- The court of law must uphold the truth and aim at delivering proper justice
- Before throwing a petition at the threshold on the grounds of maintainability, the court must see that the aggrieved person is not faced with a situation of non-adjudication.
Criticism of the Act
The law is not free of criticism. People have criticised it on some of the following grounds:
- Some people have criticised the law on the basis of it being only civil, instead of both civil and criminal as it was meant to be. The criminal part of the law only gets triggered when the act of domestic violence is accompanied by some other offence, like not following the protection order given by the court.
- As per the Act, the authority responsible for effective implementation of the Act is a Protection Officer, who is identified by the State Government. Such an officer is assigned the major role of assisting the court, initiating action on behalf of the aggrieved and looking after the services required by the victim like medical help, counseling, legal aid, etc. However, the people appointed under the Act are people who are in practice not working full time. Most of the time, in fact, this duty is given as an additional charge to those who are already in Government services. These people are mostly not qualified to fit into this role.
- Many people have said that this law assumes men to be the sole perpetrators of domestic violence. Thus, by allowing only women to file a complaint about domestic violence, this law violates Article 14 and 15 of the Indian Constitution and discriminates against men.
- Some people have also said that the definition of Domestic violence is too wide and allows cunning women to cause trouble to men for no reason whatsoever.
The Protection of Women from Domestic Violence Act, 2005 which was implemented in October 2006 is very promising legislation that combines civil remedies and criminal procedures to provide effective remedies to the women who become victims of domestic violence. The act provides for protection officers, medical facilities, free of cost orders, etc. which helps the aggrieved women in protecting themselves and their loved ones.
However, the Act is not free of certain problems. Clearly, the implementation of the Act needs to be made more concrete. The Human Rights Watch has found that police often do not file a First Information Report (FIR), i.e, the first step to initiating a police investigation, especially if the aggrieved person is from an economically or socially backward community. Most of the domestic violence, sexual violence, and marital rape cases in India never go reported. Lack of trained counsellors who can help domestic abuse victims and little access to legal aid also adds to the misery of these victims. Issues like these need to be solved so as to ensure that women get the justice they truly deserve.
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