Legal Service India - Protection of Women from Domestic Violence Act, 2005
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Protection of Women from Domestic Violence Act, 2005

Written by: Renuka Aloria - student 4th year, GNLU
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How did the act come into force?

In this era of the 21st century, where we see the position of status of women has changed drastically. No more she is confined to the four walls of her household. However there still exist some areas wherein the situation is not like. To overcome these problems we need law. There have been many attempts by the legislature in the past to bring in enactments for the protection of the rights of women. Despite of these legislations there is no legislation which particularly deals with rights of women against domestic violence. But what renders women powerless now is that in the absence of legislation defining a marital household.
So now we should try to understand what exactly domestic violence is and it is a very important question, which needs to be answered in right spirit, where a woman is forced to endure repeated domestic violence so as not to be thrown out of the house. As understood in general sense, domestic violence is violence that occurs within the private sphere, generally between individuals who are related through intimacy, blood or law. Despite the apparent neutrality of the term, domestic violence is nearly always a gender-specific crime, perpetrated by men against women. Thus any domestic violence law should ideally put a stop to violence, give protection against future abuse and use punitive measures to combat continued domestic violence.

In 1992, Lawyers Collectively drafted and circulated a Bill on domestic violence. This was widely circulated amongst women's groups and organizations including the National Commission for Women (NCW). In 1994, NCW came out with its draft Bill on domestic violence, which was vehemently criticized by women's organizations. By this time, most women's groups were united towards the need for a law on domestic violence. And they saw this as a way in which the State would issue a statement, recognizing that half its citizenry faces a peculiar kind of gender-based violence.

In 1999, the Lawyers Collective came out with its draft law on domestic violence after nation-wide consultations with many women's groups. Drafted in accordance with the UN Framework for Model Legislation on Domestic Violence, this bill had the broad support of the women's movement to its major provisions. After much pressure from women's groups, the Government of India introduced a Bill on domestic violence in the Lok Sabha, titled 'The Protection From Domestic Violence Bill 2001'.

By the time various deliberations were going on, great need was felt to such legislation in effect. The above mentioned defects were remedified and thus the act was finally passed. Ministry of Women and Child Development had issued a notification to bring it into force from 26th October, 2006. The Act was passed by the Parliament in August 2005 and assented to by the president on 13th September, 2005. But implementation was pending as detailed consultations were required with the State and other agencies for framing the rules. The Ministry has simultaneously issued another notification laying down the rules framed for the implementation of the Act. These rules may be called "The Protection of Women from Domestic Violence Rules, 2005". These rules provide for, among other things, appointment of protection officers, service providers and counselors. Action can be taken in the event of the respondent breaching the protection order passed by the Magistrate in favour of the aggrieved woman, which is also provided in these rules.

Passing of this enactment pertaining to domestic violence was the first significant attempt to recognize domestic abuse as a punishable offence, to extend its provisions to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.

Often, the violence is directed not only against the woman but is intended to cut off all her support structures, deny access to essential services and to withhold a woman's own property or children in an attempt to blackmail. The most obvious way of achieving this aim is to throw the woman out of the household. A household where the aggrieved person lives/lived in a domestic relationship, either singly or along with the respondent is a shared household. Shared household also includes a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or person aggrieved has any right, title or interest in the shared household.

Section 2 of the act defines domestic violence as “any act of physical, mental or sexual violence actually perpetrated or an attempt of such violence as well as the forcible restriction of individual freedom and of privacy, carried out against individuals who have or have had family or kinship ties or cohabit or dwell in the same home”.

Thus this section provides protection against any act /conduct /omission /commission that harms or injures or has the potential to harm or injure, and it will be considered as 'domestic violence'. Under this, the law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of the same. Even a single act of commission or omission may constitute domestic violence. Now, women do not have to suffer a prolonged period of abuse before taking recourse to the law. This legislation has widened the scope of domestic violence and now it can be broadly related to human rights. In addition to this, the interpretation of the fact that whether the act would come under the ambit of domestic violence or not is not left solely on the discretion of the judges and the cat itself provides with the criteria’s.

This wide definition of domestic violence - physical, mental, economical and sexual, thus brings under its purview the invisible violence suffered by a large section of women and entitles them to claim protection from the courts.

The law applies to a domestic relationship in a household. The meaning of a shared household has been discussed above so we would look into the aspect of domestic relationship. The law recognizes live-in relationships. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him. Accordingly any relationship between two persons who live, or have at any point of time lived together in the shared household, is considered a 'domestic relationship'. This includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships' are not restricted to the marital context alone. The law also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in law. It empowers women to file a case against a person with whom she is having a 'domestic relationship' in a 'shared household', and who has subjected her to 'domestic violence'.

S. 4. In cases where data exists showing a “direct and imminent threat” to the life or health of the victim, then an application with the police authorities is filled pursuant to section 76 of the Ministry of Interior Act for emergency protection. This application is then forwarded to the regional Court of place where the victim resides and thus the victim has the right to refer to the court to seek protection. The victim can also ask for medical examination and get a document in writing establishing any traces of violence.

S. 5 of the act deals with the Implementation aspect. In order to stop domestic violence, the victim has various alternatives which can be implemented by an order of the court. These remedies may vary from refraining him from doing. Also an order for removing the respondent from the common dwelling-house for a period specified by the court; or prohibiting the respondent from getting in the vicinity of the home or places of her social recreation can be made. She can even claim for temporarily relocation of the residence along with her child, or any other thing of similar nature. This is a temporary relief which may extend up to a period which may range from 1 month to 1 year as specified by the court. Even fine can be imposed of an amount specified in the act.

Further as per section 7 of the Act, the interim order of any of the above shall be passed if any litigation involving any of them based on a provision of the Family Code or of the Child protection Act is pending, even then they shall be competent to impose a protection measure at any stage of the proceeding. The DVA provides the scope for protective injunctions against violence, dispossession from the matrimonial home and alternate residence. It also provides the scope for claiming economic protection, including maintenance.

Major rights recognised under this law

One of the most important features of the Act is the woman’s right to secure housing. The Act provides for the woman’s right to reside in the matrimonial or shared household, whether or not she has any title or rights in the household. This right is secured by a residence order, which is passed by a court. These residence orders cannot be passed against anyone who is a woman. Even if she is a victim of domestic violence, she retains right to live in 'shared homes' that is, a home or homes she shares with the abusive partner. The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner. The law, significantly, recognizes the need of the abused woman for emergency relief, which will have to be provided by the husband.

A woman cannot be stopped from making a complaint/application alleging domestic violence. She has the right to the services and assistance of the Protection Officer and Service Providers, arranged under the provisions of the law. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.

Guarantees safety How does the law ensure that a wife who takes legal recourse in the event is not intimidated or harassed?

An important addition is that, law ensures that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife's continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.

Proceedings to impose protection measures against domestic violence

Section. 8 of the act has widened the scope. It provides for the setting up and function of Protection Officers. These officers, to be appointed by state governments, will be under the jurisdiction and control of the court, and will be responsible to the court for monitoring the cases of domestic abuse. The PO will assist the court in making a Domestic Incident Report or an application for a protection order on behalf of the aggrieved woman and/or child. POs will ensure that aggrieved people are provided legal aid, medical services, safe shelter and other required assistance. POs will ensure that necessary information on service providers is provided to the aggrieved woman, and that orders for monetary relief are complied with. Importantly, the PO can be penalised for failing/refusing to discharge his duty, with the proviso that prior sanction of the state government is required. Service Providers are a vital tool in the implementation of this act. Service Providers, are private organisations recognised under the Companies Act/Societies Registration Act. They will have to register with the state government as a service provider to record the Domestic Incident Report and to get the aggrieved person medically examined.

Also section 8 provides as to who can make an application. Here also a broad view has been taken. This application or compliant can be made not only by the victim but can be made even by sibling or by a person who is a relative to the victim or at the request of the Director of the Social Assistance Directorate, and in such case court shall, ex officio, involve the victim as a party.

But as per section 9 any person doing so i.e. making compliant shall have to provide with the details like; names, the address, and the personal ID number, telephone and fax number a description of the facts and circumstances under which domestic violence occurred; and finally has to sign the document. S. 10 of the Act provides that the application or request shall be filed within one month as from the date on which the act of domestic violence occurred and it is to be filed at the nearest local police department for which no costs shall be charged.

The Service Providers will among other things ensure that the aggrieved person is provided accommodation in a shelter home, if she so requires. A Service Provider is protected for all actions done in good faith, in the exercise of the powers under this Act, towards the prevention of commission of domestic violence they are, thus, protected by law and cannot be sued for the proper exercise of their functions. The new law, thus, recognises the role of voluntary organisations in addressing the issue of domestic violence. NGOs working for women's rights can now register as Service Providers under the Act.

Non-bailable Offence:

The Act provides for breach of protection order or interim protection order by the respondent as a cognizable and non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both. Similarly, non-compliance or discharge of duties by the Protection Officer is also sought to be made an offence under the Act with similar punishment.

Comparison of present statute with earlier legislations

Act is significant because for the first time the term ‘domestic violence’ has been widened in meaning and scope from the culture specific restriction of ‘dowry deaths’ and penal provisions to positive civil rights of protection and injunction. The most crucial test, however, lies in implementing the Act. This is yet another, pro-women legislation as many of the previous legislations regarding protection of women like amendments to rape and anti-dowry laws as well as the Family Courts Act have not given their best results as it was expected of.

Under the provisions of the Family Courts Act, the jurisdiction for claiming maintenance was shifted from the Magistrates’ Courts to the Family Courts. It made better sense to club together divorce and maintenance proceedings and locate them under one roof. The woman would be saved the trouble of running from one court to the other to claim her dues and enforce her rights. There were suggestions that even proceedings under Section 498A of the Indian Penal Code (cruelty to wives) should be transferred to the family court. The underlying presumption was that a family court would be better equipped to deal with maintenance claims of a civil nature. But with the DVA there is a reversal of this trend. Under the new Act, the jurisdiction reverts back to the Magistrates’ Court even in places where family courts have been set up. In certain cases essential ceremonies were not performed or that the man or the woman has an earlier subsisting marriage will now be able to seek relief. The invalidity of a marriage can no longer be used as defence by the man to dispossess or deny maintenance to this vulnerable section of women.

Till 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim and also relationships outside marriage were not recognized.

Demerits
Family is the basic unit of society and as such should be strengthened. It is entitled to receive comprehensive protection and support. In different cultural, political and social systems, various forms of the family exist. The rights, capabilities and responsibilities of family members must be respected. In India this act has been adopted from US Act. In that regards the point that I want to put forth here is that law can be the same but not the situations. In India firstly family is considered to be a sacred institution and same applies for marriage as well. We have seen that lengthy procedure exists in case of divorce where a period of 1 year is given as cooling period. Moreover there is a provision of conciliation as well. But this provision is not here in this act.

There can be arrest on mere compliant by the women and there is no investigation which is conducted prior to that and they do not foresee the after effects of such action like arresting and putting a person in jail, even before trial has begun, amounts to prejudging and punishing the accused without due process. In such situation many of the complaints are made to take revenge or teach a lesson. Abuse of law is done by women, who invoke frivolous proceedings against their husband for the purpose of harassment. The law, which was enacted to protect women from dowry harassment, is being used by thousands of unscrupulous women to legally terrorize the husband and his family for extortion or in other words so to say to legally blackmail innocent husband and in-laws for money. Thus it has victimized countless innocent women related to the husband’s family. Since there are no legal repercussions of filing a false case, more and more women use this law to facilitate divorce and to make the most of a failed marriage.

The fact is that majority of cases on domestic violence are actually not reported. Contrary to this the other fake complaints are made are registered to harass the innocent family members. Moreover there can be some distinction with regard to rural and urban women, but mostly people do have knowledge of their rights and accordingly they use them for their own benefits. Many a times it may also happen that the family members use the provisions for advancing money from the other side. So in this case problem arises as to how would one know which one is a bona fide compliant and which one is not. Although it is not possible to practically eliminate these kinds of problems. However the party who is adversely affected can be given relief if we had a provision of constitution of an agency which would essentially work to check whether the complaints are frivolous or not. There is no provision of penalty or punishment in case of a frivolous compliant, but even the above mentioned point is taken into consideration then even the other party can be given a chance of hearing.

Suggestion: the legislature should instead have made a provision which is gender neutral, meaning thereby the same should be the punishment if a woman tries to harass any of the family members. But such an important point has not been considered by the law makers. Thus the law should be both sided.

It is not always a man's fault when there is a distressed marriage. It is so unfortunate that our laws are always biased to one side. Where are the brilliant people who analyze the consequences and pros and cons of an act before it gets passed. Now in this case if the wife approaches the police referring to the DVA, where she is the problem creator, then how would the police and court and many other great named woman organizations react. Generally everyone will be in favour of the wife and not to the husband. The law is one sided and in the present day urban environment.

Apart from the above mentioned drawbacks, there could also be other problems such as; funding which could be a major drawback for the effective implementation of such pro-women legislations. Thus the authorities should also keep in mind the objectives envisaged by this act as they are entrusted with the job of implementation.

In a country such as ours, with such a huge population and where the systems often do not work, how reasonable would it be to expect such a legislation to work? The bodies of the Executive branch shall select and train the persons in charge of protection and the natural and legal persons registered by virtue of section 18(2) and (3) of the Social Assistance Act shall work jointly to provide protection to the victims of domestic violence and aim to implement the programme as per section.5The government has passed the law; it now needs to put in place the mechanism of implementation. To this end, the government has to provide funding to encourage the registration of Service Providers who will need the protections of this new law. The government will also have to initiate a widespread campaign for public awareness. It will also need to implement training programs to sensitize the police, media and judiciary to the dimensions, scope and functioning of this new law.

There should be more publicity about this Act to increase awareness that it is possible for women to complain not only against physical but also emotional and psychological abuse. A lot of women today are willing to seek help provided they can do it under conditions of dignity and with some assurance that they will get a fair deal and justice in a reasonable period of time. What is needed is more publicity about this Act to increase awareness among women that it is possible to complain not only against physical but also against emotional and psychological abuse, and to make the complaint forms easily available.

The author can be reached at: renuka@legalserviceindia.com / Print This Article

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