The Protection of Women from Domestic Violence Act 2005 is an act of the Parliament of India enacted to protect women from domestic violence. It was brought into force by the Indian government and Ministry of Women and Child Development from 26 October 2006. The Act provides for the first time in Indian law a definition of “domestic violence”, with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse. It is a civil law meant primarily for protection orders and not for meant to be enforced criminally.
Scope
Primarily meant to provide protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives, the law also extends its protection to women living in a household such as sisters, widows or mothers. Domestic violence under the act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. This definition also includes harassment by way of unlawful dowry demands to the woman or her relatives.
Who is covered under the Act?
- The Act covers all women who may be mother, sister, wife, widow or partners living in a shared household. The relationship may be in nature of marriage or adoption. In addition relationships with family members living together as a joint family are also included. However, no female relative of the husband or the male partner can file a complaint against the wife or the female partner, for e.g. the mother-in-law cannot file an application against a daughter-in-law, but she can file an application against her daughter-in-law for abetting her son to commit violence against her.
Who can file a complaint?
- Any woman who alleges to have been subjected to any act of domestic violence by the offender or any person may file a complaint on her behalf
- A child is also entitled to relief under the Domestic Violence Act. The mother of such a child can make an application on behalf of her minor child (whether male or female). In cases where the mother makes an application to the court for herself, the children can also be added as co-applicants.
Against whom can a complaint be filed?
- Any adult male member who has been in a domestic relationship with the woman
- Relatives of the husband or the male partner
- Includes both male and female relatives of the male partner
To whom can information be given or complaint be made?
- Information may be given arid complaint can be made to a police officer/Protection Officer/Service provider (an NGO) or Magistrate. The Protection Of Women From Domestic Violence Act, 2005
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
Protection Order- Section 18
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 Stridhan.
- 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.
Residence Order- Section 19
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.
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Monetary Relief- Section 20
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.
Custody Order- Section 21
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- Section 22
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)
Abuses covered by the Act
Under The Protection Of Women From Domestic Violence Act, 2005 there are 4 types of abuses-
- Physical abuse– physical force against a women such that she suffers from bodily injury or hurt, physical assault, criminal intimidation and criminal force.
- Sexual abuse– refers to force inflicted upon a women forced to perform any unwanted, unsafe and 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– It includes verbal abuses yelling name calling, blaming, isolating, intimidating, showcasing controlling behavior, insulting or continually criticizing her.
- Economic abuse– Includes a women not being provided with enough money by her partner to maintain herself and her children, through buying clothes, food, medicines, etc.
Criticism of the Act
The Protection Of Women From Domestic Violence Act, 2005 is not free of criticism. People have criticized it on some of the following grounds:
- Some people have criticized 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.
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