DOMESTIC VIOLENCE ACT

The Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) is enacted to protect the rights of women. The Domestic Violence Act not only covers those women who are or have been in a relationship with the abuser but it also covers those women who have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. Even those women who are sisters, widows, mothers, single women, or living in any other relationship with the abuser are entitled to legal protection under the Domestic Violence Act.

Who can file a complaint under the Domestic Violence Act?

Section 2(a) of the Domestic Violence Act defines “aggrieved person” as any woman who is, or has been, in a domestic relationship with the Abuser and who alleges to have been subjected to any act of domestic violence by the Abuser.

Women in Live in relationships covered under the Act:

This act has a wider meaning to “aggrieved person” which includes women in live in relationships. Supreme Court of India in the case of D. Veluswamy v. D. Patchaiammal has enumerated ingredients of live in relationships as follows:

1. They must be of a valid legal age of marriage
2. They should qualify to enter into marriage eg. None of the partner should have a spouse living at the time of entering into relationship.
3. They must have voluntarily cohabited for a significant period of time
4. They must have lived together in a shared household

What is shared household?

The term shared household is defined under the Domestic Violence Act as a household where the person aggrieved lives or at any stage has lived in a domestic relationship with the abuser and includes such a household whether owned or tenanted either jointly by the aggrieved person and the abuser, or owned or tenanted by either of them in respect of which either the aggrieved person or the abuser or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the abuser is a member, irrespective of whether the abuser or the aggrieved person has any right, title or interest in the shared household.

Types of abuse under the Domestic Violence Act

• Physical Abuse: Physical abuse is the use of physical force against a woman in a way   that   causes   her   bodily   injury   or   hurt.   Physical   assault,   criminal  intimidation   and   criminal   force   are   also   forms of   physical   abuse   like  beating,   kicking   and   punching,   throwing objects,   damaging   property,  punched   walls,   kicked   doors, abandoning   her   in   a   dangerous   or  unfamiliar place, using a weapon to threaten or hurt her, forcing her to leave the matrimonial home, hurting her children, using physical force in  sexual situations.

• Sexual Abuse: This is also a form of physical abuse. Any situation in which a woman is forced to participate in unwanted safe or degrading sexual activity, calling her sexual names, hurting a woman with objects and weapons during sex is sexual abuse.

• Verbal and Emotional Abuse: Many women suffer from   emotional   abuse,   which   is   no   less   destructive.  Unfortunately, emotional abuse is often minimized or overlooked – even by the woman being   abused. Emotional abuse includes   verbal abuse such as yelling, name-calling,   blaming   and   shaming, isolation,   intimidation   and controlling behaviour also fall under emotional abuse. Calls her names, insults her or continually criticizing her also come under verbal and emotional abuse.

• Economic Abuse: Economic abuse is not a very recognized form of abuse among the women   but   it   is   very   detrimental. Economic   abuse   mainly   includes   a woman   not   been   provided   with   enough   money   by   her   partner   to  maintain herself and her children, which may comprise money for food,  clothing,   medicines etc. and  not allowing a woman to take up an employment. Forcing   her   out   of   the   house   where she   lives   and   not providing her rent, in case of a rented share hold also amounts to abuse. Disposing or alienating the assets of the women   whether   movable   or   immovable,   valuables,   shares,   securities, bonds and the like other property in which she may have an interest also comes under economic abuse.

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 Abuser 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:

Protection Order

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:

1. Committing the act of domestic violence.
2. Abetting in the commission of domestic violence.
3. Entering the place of employment, school, etc. of the aggrieved person.
4. Attempting to communicate with the aggrieved person.
5. Alienate any assets, bank accounts or lockers enjoyed by either both the parties or the respondent singly, including her Sridharan.
6. Causing violence to any person who helped the aggrieved person and provided protection from domestic violence.
7. Committing any other act which is specified in the order given.

Residence Order

• 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.

Monetary Relief

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):

1. Loss of earnings;
2. Medical expenses;
3. Loss caused due to destruction and damage of any property;
4. Maintenance for the aggrieved person and her children.

Custody Order

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.

Compensation Orders

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 there is a breach of the protection order given by the magistrate, the contemnor 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, counselling, 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.

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Conclusion

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.