This article has been written by Sanju Jha (pursuing Ba. Llb from Rnb Global University, Bikaner)
In India, domestic violence is governed by the Protection of Women from Domestic Violence Act, of 2005 and it is defined under Section 3, which states that any act, commission, omission, or conduct of a person harms 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.
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The objective of the act:-
The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412 reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for the security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.
The preamble of the Act:-
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.
AGGRIEVED PERSON – According to the definition provided under the DV Act in Section 2(a), an “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Therefore, any woman who is or has been in a domestic relationship is entitled to make a complaint invoking provisions of the Act.
DOMESTIC RELATIONSHIP – According to Section 2(f) of the DV Act, “domestic relationship” means a relationship between two persons living in a shared household. Domestic relationships can be through marriage such as wives, daughters-in-law, sisters-in-law, widows, and any other members of the family; or blood relationships such as mothers, sisters or daughters; and other domestic relationships including through adoption, live-in relationships, and women in bigamous relationship or victims of legally invalid marriages.
RESPONDENT –According to section 2(q) of DV Act, “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner, but in case of Harilal Hawsara v. Kusum N. Hawsara 2016; court struck down that respondent is adult man only and lay down that respondent can be any one man or female.
SHARED HOUSEHOLD – According to Section 2(s) of DV Act 2005, a shared household is where the aggrieved person or a woman lives in a domestic relationship, either singly, or along with the man against whom the complaint is filed. It may also imply a household where a woman has lived in a domestic relationship but has been thrown out. This may include all kinds of situations whether the household is owned by the respondent or it is rented accommodation. It also includes a house either owned jointly by the aggrieved person and the respondent or both may have jointly or singly, any rights, titles or interests.
DOMESTIC VIOLENCE – “Domestic violence” is a broad term that entails not only physical beating but also other forms of violence such as emotional violence, mental violence, sexual violence, financial violence and other forms of cruelty that may occur within a household. The definition provided in Section 3 of the DV Act includes the following as acts of domestic violence: “Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”
The Section also defines the meaning of the terms physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. It further enunciates that the overall facts and circumstances of the case shall be taken into consideration in order to determine whether any act, omission, commission, or conduct of the respondent constitutes “domestic violence” under the said section.
SECTION.4: INFORMATION TO PROTECTION OFFICER AND EXCLUSION OF LIABILITY OF INFORMANT.-
(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.
(2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of subsection (1).
SECTION.5: DUTIES OF POLICE OFFICERS, SERVICE PROVIDERS AND MAGISTRATE.-
A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person-
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant.
Section 6: Duties of shelter homes.-
If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.
Section 7: Duties of medical facilities.-
If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility.
Section.8: Appointment of Protection Officers.-
(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act.
(2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may be prescribed.
SECTION.9: POWER AND FUNCTION OF PROTECTION OFFICERS-
1. To assist the Magistrate in order to discharge their duties in accordance with the Act.
2. 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.
3. To make the application in the prescribed order to the Magistrate if the aggrieved person claims relief for issuance of the protective order.
4. To make sure that the aggrieved person is provided free legal aid under the Legal Services Authorities Act, 1987.
5. To maintain a detailed list of all the service providers providing legal aid or counseling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate.
6. 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.
7. 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.
8. To ensure that the order of monetary relief to the victims is complied with under this Act.
SECTION .10: POWERS AND FUNCTIONS OF SERVICE PROVIDERS.-
It 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 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 over 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.
SECTION.11: 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.
SECTION .12: 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 within a period of sixty days from the date of its first hearing. Moreover, the Protection of Women from Domestic Violence Act, of 2005 authorizes the Magistrate to grant the following orders and reliefs.
ORDERS THAT A MAGISTRATE MAY PASS UNDER THE ACT
The Magistrate may –
- Direct the respondent or the aggrieved person, either singly or jointly, to undergo counseling (Section 14).
- Direct that the woman shall not be evicted or excluded from the household or any part of it (section 15)
- If considered necessary, the proceedings may be directed to be conducted in camera (section 16 )
- Issue Protection order, providing protection to the woman (section 18)
- Grant residence order (section 19)
- Grant monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence. (section 20)
- Grant custody orders, i.e., temporary custody of any child or children to the aggrieved person. (section 21)
- Grant compensation/damages for the injuries. Including mental torture and emotional distress caused by the acts of domestic violence committed by that respondent. (section 22)
- Breach of any order of the Magistrate is an offense which is punishable under the taw. (section 23)
- The Act is in addition to existing laws
- The aggrieved person has the right to file a complaint simultaneously under Section 498A JPC
- Reliefs under the Domestic Violence Act can also be asked for in other legal proceedings e.g. petition for divorce, maintenance, Section 498A IPC, etc.
SUREKHA MOTE VS. STATE OF MAHARASHTRA HIGH COURT OF BOMBAY
- Held that “we have considered section 12 of the PWDV Act and the proviso to section 12. This does not mean that if no protection officers are appointed. The Magistrate ceases to have jurisdiction. That would frustrate the object of the act ” This means that a complaint can be entertained directly by the magistrate even if there is no protection officer
SHALU BANSAL CASE DELHI
- The court directed that respondents shall provide rent for separate residences as maintenance to the aggrieved person
Although the major objective of this act to protect women against domestic violence has been secured certain portions of the law still remain to be developed. This law provides civil remedies to the victims of domestic violence. Before the enactment of this law, in order to seek any civil remedies such as divorce, custody of children, injunctions in any form, or maintenance, a woman only had the option of taking recourse to the civil courts. Therefore, the DV Act has certainly brought about the required and necessary change in the system.