Legal

Overview of Protection of Women against Domestic Violence Act, 2005

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This Blog is written by Anjana Vijay from University of Petroleum and Energy Studies, Dehradun. Edited by Karan Dutt.

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INTRODUCTION

“Domestic violence is a burden on numerous sectors of the social system and quietly, yet dramatically, affects the development of a nation… batterers cost nations fortunes in terms of law enforcement, health care, lost labor and general progress in development. These costs do not only affect the present generation; what begins as an assault by one person on another reverberates through the family and the community into the future”.[1]

It is a global debate that reaches national borders and social and economic divisions, cultures, races and classes. This problem is not only widespread geographically, but its occurrences are also widespread, making it a common and accepted phenomenon with persistent ambiguous behavior. Its costs to individuals, health systems and the community are enormous. Yet no other major problem of public health has been so widely ignored and so little understood.[2]

It is difficult to determine the extent of the domestic violence. It is a secret, hidden, and often an anonymous crime. For individuals, acknowledging domestic violence may be viewed as acknowledging the fall of a personal relationship. In society, acknowledging domestic violence can mean seeing the reality of how one of the most respected social institutions can harm women. “It’s a form of control that allows one person to use another over another. Abusers use physical and sexual violence, threats, emotional insults and economic deprivation as a way to dominate their victims and get their way”.[3]

Keeping this in mind, even the reported numbers are shocking. Almost every five minutes there is a report of domestic violence in India.

WHAT IS DOMESTIC VIOLENCE?

Domestic violence can be defined as the abuse of power by one adult in a controlling relationship. It is the establishment of control and fear in relationships with violence and other forms of abuse. This violence can be a form of physical assault, psychological abuse, social harassment, financial abuse, or sexual harassment. The frequency of violence can be turned on and off, periodically or permanently.

Domestic violence is perpetrated by both men and women, and more. Often, however, the victims are women, especially in our country. Even in the United States, it has been reported that 85% of all violent crimes against women are cases of intimate partner violence, compared with 3% of violent crimes against men.[4] Thus, domestic violence in Indian context mostly refers to domestic violence against women.

The Protection of Women from Domestic Violence Act, 2005 states that any act, act, omission or commission that injures or injures or has the power to harm or injure will be regarded as domestic violence by law. Even a single act of resignation or commission can lead to domestic violence – in other words, women do not have to suffer long before they go to law. The law covers children also.[5]

IMPACT OF THE VIOLENCE

Domestic violence affects women from all walks of life regardless of their age, religion, class or class. It is a violent crime that not only affects a person and the children but also has a profound effect on society. While it is difficult to pinpoint the origin of crime, specific causes of violence can be traced to the promotion of gender roles, as well as the allocation of power.

The definition of violence has changed over the years to the extent that it includes not only physical but also emotional, psychological, financial, and other forms of violence. Therefore, the term domestic violence includes acts that harm or endanger the health, safety, health, limb or well-being (mental or physical) of the victim, or is inclined to do so, and includes the creation of: physical abuse, sexual harassment, verbal abuse ,emotional trauma, and economic trauma, perpetrated by any person with a domestic relationship or victim.

It has negative effects on women’s mental and physical health, including their reproductive and sexual health. These include trauma, gynecological problems, temporary or permanent disability, depression and suicide, among others.

“Most forms of verbal and psychological abuse seem harmless at first, but they get worse and worse over time. As victims respond to abusive behavior, verbal or psychological tactics can establish a strong ‘stability’ in the victims’ mind, making it difficult for them to see the severity of the abuse over time.”[6]

In the short and long term, women’s physical and mental disabilities interfere with, or end, in their educational and career paths leading to poverty and economic dishonesty. Family life is disrupted which has a profound effect on children, including poverty (in the event of divorce or separation) and loss of faith and trust in the family unit. This not only affects the quality of life of individuals and communities, but also has long-term effects on social order and integration.[7]

STATUTORY PROVISIONS

In 2005, a new law was passed, called the Protection of Women from Domestic Violence Act to protect women from domestic violence. The law has many different features− expands the definition of domestic violence and protects all women in domestic relationships, including mothers, sisters, and daughters.

Prior to the Protection of Women from Domestic Violence Act, 2005, a victim could go to court under Section 498-A of the Penal Code, 1860 which provided ‘a husband or relative of the oppressive woman’s husband’ where only a set of cases relating to married women was the only option. All other incidents of domestic violence should have been dealt with under the pretext of appropriate acts of violence committed under the Indian Penal Code regardless of the gender of the victim

Who can file a case under this Act and against whom?

A complaint about domestic violence can be lodged by a ‘victim’. Section 2 of the Act defines this term. It refers to a woman who has been in a domestic relationship with the accused (a man who has a domestic relationship with such women) and who suspects that she has committed domestic violence against him. Domestic relationships are relationships between two people who live or have lived together in a shared family, and are related to:

• Marriage,

• Marital relationships (such as live relationships),

• Discovery,

• They are family members,

• They are related by blood relationship.

A house divided as defined in this section of the law is a house owned or occupied by a man, a house in which a man and a woman lived together in rent, or a house in which a man and a woman lived together with his family.

The case of D. Velusamy v. D. Patchiammal[8] discussed certain pre-requirements to be fulfilled-

1. Both parties must behave like husband and wife;

2. They must have attained the legal age of marriage;

3. They should qualify to enter into marriage;

4. They must voluntarily live together in the same place for a significant amount of time;

5. They must have lived together in a significant household.

‘Aggrieved’ person as defined under the Act

If you are a woman and any person with whom you are in a domestic relationship with is being abusive, you are a victim or an ‘aggrieved person’. The law aims to protect women living in the same house and related people through:

1. Blood relationship: mother and son, father and daughter, sister-in-law, widows

2. Marriage: husband-wife, daughter-in-law and mother-in-law and other family members, daughter-in-law and other family members, widows and other family members;

3. Discovery – for example- daughter and father of adoption;

4. Relationships in the marital family: cohabiting relationships, unlawful marriages (e.g. a man is remarried; a man and a woman are related by blood, etc.)

The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora[9] struck down adult male from the definition of “respondent” stating that it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The Supreme Court also explained in the said case that the categories of persons against whom remedies under the DV Act are available include women and non-adults. Expression “respondent” in Section 2(q) or persons who can be treated as perpetrators of violence against women/against whom remedies under the DV Act are actionable cannot be restricted to expression “adult male person” in Section 2(q). Thus, remedies under the Act are available even against a female member and also against non-adults.

IMPORTANT PROVISIONS OF THE ACT

Section 3 of the Act defines the term ‘domestic violence’ in more detail. It states that the act or omission would be appropriate as domestic violence if:

• Damages or impairs the health, safety, organs (organs), health and / or mental and physical health of a woman. Such abuse can be physical, sexual, economic, verbal or emotional.

• Harassing, harassing, injuring or endangering the victim to force him or her or other family members to meet illegal demands.

• It causes any physical and mental damage to the victim.

Section 4 provides for a moral obligation to members of the public who are unaware of an act that has already taken place or, in the unlikely event of future domestic violence, to file a complaint on behalf of the victim and to mean that all persons have a responsibility to respond to abuse.

Provisions for law enforcement

Section 5 of the Protection from Women in Domestic Violence Act provides for various legal, financial, legal and administrative structures to assist victims of domestic violence. The law provides for the provision of assistance to victims and witnesses, educates them about their rights and provides immediate administrative assistance, law enforcement, legal care and community facilities.

This section will prescribe the duties of the police, service providers and magistrates to inform the victim of his or her rights to protection, order of exemption, custody order, accommodation order, compensation order or in addition to such order in terms of this Act. The word “shall” in this first phase is a compulsory obligation, not a requirement, or a desire to create a social bond by one’s actions.

Sections 7, Section 8 and Section 10 provide social assistance to victims such as families, medical services and government service providers. Section 7 stipulates that the person in charge of the medical facility must provide assistance to the victim. Section 10 sets out the services of a service provider that requires filing of national impact reports, the provision of treatment, the provision of shelter and the provision of protection to the victim. Section 6 stipulates that shelters are expected to provide shelter those sections define the official function of the agency to support victims of domestic violence.

Section 11 sets out the various functions of the Government to inform the Act to the media, to regularly raise and train government / political, political and judicial officials, to organize interdepartmental and inter-departmental planning and to ensure compliance with guidelines.

Relief for victims

Sections 18 to Section 22 create a variety of ways to assist victims of domestic violence, such as protection orders, financial assistance, child custody orders, residency orders, and restitution orders.

While Section 23 provides interim orders, Sections 26 and Section 28 are essential provisions that can be fully utilized to ensure the independence of any court in civil, criminal or family matters and to establish their own procedures for dealing with applications.

Many regulations and procedures for obtaining relief orders are set out in sections 12, 13, 14, 15 and 16 of the Act. Other important points to note in these sections are that, where applications may be made to the magistrate under Section 12, the magistrate must set a date for the hearing within three days of receipt of the application, and the case must be dismissed within 60 days from the first day of the hearing.

Section 13 stipulates that the Safety Officer must be notified of the hearing within two days and that a Statement of Employment must be prepared by the Staff Officer.

Section 14 provides that any party can be instructed by a magistrate if Section 15 makes it clear that the magistrate can use the services of social workers to support him, especially a woman, and Section 16 stipulates that the procedure is possible on camera.

The Department of Women and Children Development, the National Women’s Commission and non-governmental organizations have also taken steps to disseminate the remedies available to the Act to affected women by organizing safety campaigns / conferences / meetings / workshops.

Duty of the court while dealing with cases under the Act

In the case of Krishna Bhatacharjee vs Sarathi Choudhury and Anr,[10] the court has set guidelines to be followed by all courts during the proceedings under this Act. These are:

• The court must give a decision keeping in mind that a person who cannot help himself or herself goes to court in a critical situation.

• It must also ensure that the court considers the facts on all sides. It must take steps to ensure that the application made by the respondent to dismiss the victim’s grievances is lawful and true.

• The court of law must uphold the truth and aim to bring about justice

• Before filing a complaint against a threshold for security reasons, the court must consider that the victim is not facing a judgment.

CRITICISM OF THE ACT

• Some people have criticized the law on the basis that it is only public, instead of both the law as it was intended to be. Part of the criminal law is created only when the act of domestic violence is accompanied by another crime, such as non-compliance with a protection order issued by a court.

• As required by the Act, the official responsible for the implementation of the Act is the Protection Officer, appointed by the State Government. Such an officer is given the primary role of assisting the court, initiating action on behalf of the victims and caring for the services of the client such as medical assistance, counseling, legal aid, etc. However, persons appointed under the Act are persons who are fully employed. Most of the time, in fact, this service is offered as an additional compensation to those who are already in the Government service. These people are especially unfit to enter this role.

• Many people have argued that the law assumes that only men are responsible for domestic violence. Therefore, by allowing only women to lodge a complaint against domestic violence, this law violates Articles 14 and 15 of the Constitution of India and discriminates against men.

• Some people also say that the definition of domestic violence is very broad and allows cunning women to create a problem for men for no reason.

CASE LAWS – INTENT AND OBJECTIVE OF THE ACT

• To reduce the critical legal status, be it procedural or otherwise, the Protection from Women in Domestic Violence Act of 2005 was enacted to protect women from acts of domestic violence. The legal purpose was emphasized by the Indian Supreme Court in the case of Indra Sarma v. VKV Sarma,[11] where it was stated that the DV Act was enacted to provide a solution to the social law to protect women, victims of such relationships, and to prevent the occurrence of domestic violence in the community. Other laws such as CrPC, IPC, etc. have also been discussed.

• The purpose of this Act sets out “the Act which provides for the effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind in the family and related matters.” Madras High Court in Vandhana v. T. Srikanth,[12] in one of the first cases since the enactment of the DV Act, found that the Act was designed to apply the 12th Amendment to the United Nations Committee on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and ratified by India in June, 1993. The interpretation of DV legislation must be in line with international conventions and international instruments and norms.

• Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai,[13] reiterated that the purpose of the DV Act was to provide legal protection for victims of domestic violence who had no commercial rights. The Act provides for the safety and security of a woman, regardless of her rights, where she lives. It aims to protect the wife from violence and to prevent the recurrence of acts of violence.

• High Court in Hiral P. Harsora v. Kusum Narottamdas Harsora,[14] beat an older man from the definition of “defendant” meaning that it is not based on any reasonable differences that have a logical argument with what needs to be done. The Supreme Court also explained in this case that the categories of people whose remedies under the DV Act are available include women and non-adults. The definition of “respondent” in section 2 (q) or people who may be treated as perpetrators of women / drugs under the DV Act used will not be prohibited from displaying “adult man” in section 2 (q). Therefore, remedies under the DV Act are available even for the female member and for non-adults.

CONCLUSION

Although the main purpose of the law, to protect women from domestic violence is protected, certain sections of the law are still being developed. The law provides community remedies for victims of domestic violence. Prior to the enactment of this law, in order to obtain social remedies such as divorce, custody of children, barriers in any way or maintenance, a woman had access to civil courts only. Therefore, the law has brought about the necessary and necessary changes in the system.

Although the Act provides comprehensive remedies for domestic violence, certain terms and definitions need to be improved. The Act is lacking in providing any relief to male members of the community facing domestic violence, as one of the areas where the law is lacking. However, it also needs to be considered that no crime can be completely eradicated from society, only through these radical changes and the only way to do so.