This article is written by Abanti Bose, studying from Amity University Kolkata, India. This article provides an exhaustive understanding of the Protection of Women from Domestic Violence Act, 2005.
It has been published by Rachit Garg.
Table of Contents
Introduction
Women form the largest group of victims of domestic violence since time immemorial and violence against women still continue even in the 21st century. Women from every social background irrespective of their age, religion, caste, or class fall victim to domestic violence. However domestic violence is not just limited to women; men, children and elderly people can also be victims of it. Domestic violence occurs at all levels of society and in all population groups.
In India, 30% women have experienced domestic violence at least once from the age of 15, and around 4 percent of pregnant women have even experienced spousal violence during pregnancy.
Domestic violence: a social evil
The offence of domestic violence is committed by someone in the victim’s domestic circle. It includes family members, relatives, etc. The term domestic violence is often used when there is a close cohabitating relationship between the offender and the victim. The various forms of domestic violence include senior abuse, child abuse, honour-based abuse such as honour killing, female genital mutilation, and all forms of abuse by an intimate partner.
In the 21st century, various steps are incorporated to address the social issue of domestic violence. Governments all across the globe have taken proactive measures to eradicate domestic violence. Furthermore, the media, politicians and campaigning groups have aided people to acknowledge domestic violence as a social evil.
In India domestic violence is governed by the Protection of Women from Domestic Violence Act, 2005 and it is defined under Section 3, which states that any act, commission, omission or conduct of a person harms or injures or endangers the health or safety of an individual whether mentally or physically it amounts to domestic violence. It further includes any harm, harassment or injury caused to an individual or any person related to that individual to meet any unlawful demand would also amount to domestic violence.
Objectives of the Domestic Violence Act, 2005
The objectives of the Protection of Women from Domestic Violence Act, 2005 is to serve the following purposes:
- To identify and determine that every act of domestic violence is unlawful and punishable by law.
- To provide protection to victims of domestic violence in the cases such acts occur.
- To serve justice in a timely, cost-effective, and convenient manner to the aggrieved person.
- To prevent the commission of domestic violence and to take adequate steps if such violence occurs.
- To implement sufficient programmes and agendas for the victims of domestic violence and to guarantee the recovery of such victims.
- To create awareness among the people about domestic violence.
- To enforce harsh punishment and must hold the culprits accountable for committing such heinous acts of violence.
- To lay down the law and govern it in accordance with the international standards for the prevention of domestic violence.
Essential provisions of the Domestic Violence Act, 2005
Appointment of Protection Officers
Protection Officers are appointed by the State Government. The number of Protection Officers may vary from district to district depending on the size and necessity. The powers and duties which are to be exercised by the Protection Officers are laid down in confirmation with the Act. The Protection Officers must be women as far as possible and shall possess requisite qualifications and experience as may be prescribed under the Act.
Powers and functions of Protection Officers
The powers and functions of Protection Officers include the following:
- To assist the Magistrate in order to discharge their duties in accordance with the Act.
- To make a domestic violence incident report to the Magistrate after receiving any such incident of domestic violence and must also forward the copies to the police officer in charge of the police station having jurisdiction over the incident.
- To make the application in the prescribed order to the Magistrate if the aggrieved person claims relief for issuance of the protective order.
- To make sure that the aggrieved person is provided free legal aid under the Legal Services Authorities Act, 1987.
- To maintain a detailed list of all the service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate.
- To get the victim medically examined, if she has sustained any bodily injuries and forward such a report in the prescribed manner to the Magistrate and the police station having jurisdiction.
- To find a safe available shelter home for the victim if she requires and send the details of her lodging in the prescribed manner to the Magistrate and the police station having jurisdiction.
- To ensure that the order of monetary relief to the victims is complied with under this Act.
Powers and functions of service providers
Section 10 of the Act, lays down the functions and duties of service providers. Service providers are defined under the Act as any voluntary association registered under the Societies Registration Act, 1860 or a company that is registered under the Companies Act, 1956 which aims to protect the rights of the women lawfully by providing legal aid, medical, financial or other assistance. The powers and duties of service providers are mentioned below.
- A service provider has the authority to record any incident of domestic violence and forward it to the Magistrate or Protection Officer having jurisdiction where the incident of domestic violence took place.
- The service provider must get the aggrieved person medically examined and forward such a report to the Protection Officer, Magistrate and the police station within the local limits where the domestic violence took place.
- It is also the responsibility of the service providers to provide a shelter home to the victim if they require one and forward the report of lodging of the victim to the police station having jurisdiction.
Duties and functions of police officers and Magistrate
Section 5 of the Protection of Women from Domestic Violence Act, 2005 lays down the duties and functions of police officers and Magistrate. It states that when a police officer, service provider or Magistrate receives a complaint of domestic violence, an incident of domestic violence is reported to him or he is present at the scene of occurrence of domestic violence then they should take the following steps:
- They are required to inform the victim about her rights to make an application for receiving relief by way of protection order, order for monetary relief, custody order, residence order, compensation order, etc.
- They should inform the victim of the accessibility of services of the service providers.
- The victim should be informed about the services and duties of the Protection Officers.
- They should also inform the victim about her right to free legal services under the Legal Services Authorities Act, 1987 and her right to file a complaint under Section 498A of the Indian Penal Code, 1860.
Duties of shelter homes and medical facilities
If any victim of domestic violence requires a shelter home then under Section 6 of the Act, the person in charge of a shelter home will provide suitable shelter to the victims of domestic violence in the shelter home.
Further Section 7 of the Act lays down that if an aggrieved person requires medical assistance then the person in charge of the medical facility will be providing such assistance to the aggrieved person.
Duties of the Government
The Act further lays down certain provisions stating the duties and functions of the Government. Such duties include;
- The provisions of this Act must be given wide publicity through public media so that the citizens of our country are well aware of such provisions.
- Both the Central and State Governments officers such as the police officers and the members of the judicial services must be given periodic sensitization and awareness training regarding the provisions of the Act.
- Both the Central and State Governments must also ensure that the protocols for the various Ministries concerned with the delivery of services to women under this Act are diligently followed.
Application to the Magistrate
The aggrieved person, the Protection Officer of that locality or any other person on behalf of the aggrieved person shall make an application to the Magistrate claiming one or more reliefs under this Protection of Women from Domestic Violence Act, 2005. The application must contain all the necessary details as prescribed by the Act.
The Magistrate will fix the date of hearing which shall not extend more than three days from the date of receiving the application. Furthermore, the Magistrate must also aim to dispose of all the applications made under Section 12 of the Act within a period of sixty days from the date of its first hearing. Moreover the Protection of Women from Domestic Violence Act, 2005 authorises the Magistrate to grant the following orders and reliefs.
Monetary reliefs
While disposing of the application the Magistrate may ask the respondent to pay monetary relief to meet the expenses incurred and the losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include the loss of earnings of the victim, medical expenses, the loss caused due to damage or destruction of any property, the maintenance of the aggrieved person and her children as required under Section of the Criminal Procedure Code.
- The monetary relief granted must be fair and adequate and must be in accordance with the standard of living of the aggrieved person.
- The Act authorises the Magistrate to grant a fitting lump sum payment or monthly payments of maintenance as required by the aggrieved person.
- The Magistrate shall direct the copy of the order for the monetary relief to the in charge of the police station having jurisdiction.
The respondent must pay the monetary compensation to the victim within the stipulated and if they fail to do so then the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the victim or deposit with the court a portion of wages, salaries, or debt due to the respondent and the amount could be adjusted at the end of the completion of monetary relief.
Section 22 of the Act also stipulates that the respondent will be liable to pay compensation to the victim for causing any damage or injury including mental torture and emotional distress as directed by the Magistrate.
Custody orders
Under Section 21 of the Protection of Women from Domestic Violence Act, 2005 when the Magistrate receives an application concerning domestic violence, he has the authority to direct the custody of any child or children to the victim or the person making the application on behalf of the victim.
Protection orders
If the Magistrate is satisfied that domestic violence has taken place then they may pass a protection order in favour of the aggrieved person to prevent the respondent from committing any acts of domestic violence or abetting any acts of domestic violence. The Magistrate may also prevent the respondent from contacting the aggrieved person, entering the place of employment of the aggrieved person or causing violence to the dependants or relatives of the aggrieved person.
Residence order
Under Section 19 of the Act if the Magistrate is satisfied that domestic violence has occurred then the Magistrate may pass a residence order restraining the respondent from disturbing the possession of the aggrieved person from the shared household, or to withdraw himself from the shared household restraining the respondent or any of his relatives from entering the shared household and prohibiting the respondent from repudiating his rights in the shared household.
Jurisdiction and procedure
The court of Judicial Magistrate of the first class or the Metropolitan Magistrate of the area has the jurisdiction to hear cases under this Act. However, Section 27 of the Act states the following factors;
- The aggrieved person permanently or temporarily resides or carries out business in that area.
- The respondent resides, carries on business or is employed within the local limits of the area.
- The competent court will be liable to grant protection orders or any other orders as the case may be.
Section 28 of the Act states that all the proceedings arising under this Act shall be governed by the provisions of the Code of Criminal Procedure, 1973.
Legislative intent of the Domestic Violence Act, 2005
The legislative intent of enacting the Protection of Women from Domestic Violence Act, 2005 has been meticulously discussed in the case Indra Sarma v. V.K.V.Sarma. It was stated that the reason for the legislation to enact such an Act is to provide protection of rights of women who are victims of violence of any type occurring in the family. This Act safeguards women from facing violence within the four walls of their home.
The Madras High Court in the case, Vandhana v. T. Srikanth further stated the Protection of Women from Domestic Violence Act, 2005 “is an Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”.
Conclusion
The Act plays a critical role in the Indian legal system vis-a-vis protecting the rights of the women, so that they can feel protected and safe within the comfort of their own house. It is an exhaustive piece of legislation as it lays down the powers and duties of the various authorities, reliefs available to the victims, steps to filing a complaint regarding domestic violence, assistance provided to the victims of domestic violence, power and extent of the Indian Judiciary and the power of the Central Government to make rules. The Act provides civil remedies to the victims of domestic violence. And prior to the enactment of the Act, the victims of domestic violence sought civil remedies such as divorce, custody of children, injunctions in any form or maintenance only by taking recourse to civil courts. Therefore, the Act brought about necessary changes in the Indian legislature.
Although the Act has incorporated essential steps to safeguard women from domestic violence it fails to provide any remedies for the male members of the family and it also fails to recognize the cohabiting and marital relationship between the members of the LGBTQ+ community. Hence, these must be included in the Act to totally eradicate domestic violence as a necessary evil from Indian society.
References
- https://www.scconline.com/blog/post/2020/07/27/law-on-domestic-violence-protection-of-women-from-domestic-violence-act-2005/
- https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf
- https://sunderlandsocialsciences.wordpress.com/2018/09/21/how-is-domestic-violence-a-social-problem/
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