The United Nations defined the term “violence against women” in a 1993 Declaration as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”. Having included domestic violence as a form of violence against women, the United Nations further explained that: The term ‘domestic violence’ is used to describe actions and omissions that occur in varying relationships. The term is used narrowly to cover incidents of physical attack, when it may take the form of physical and sexual violations. The result of such physical violence can range from bruising to killing; what may often start out as apparently minor attacks can escalate both in intensity and frequency. ‘Domestic Violence’ also includes psychological or mental violence, which can consist of repeated verbal abuse, harassment, confinement and deprivation of physical, financial and personal resources. In this article we shall study important provisions of the Protection of Women from Domestic Violence Act, 2005.
It is a harsh reality that women have been ill-treated in
every society for ages and India is no exception. The irony lies in
fact that in our country where women are worshiped as shakti, the
atrocities are committed against her in all sections of life. She is
being looked down as commodity or as a slave, she is not only
robbed of her dignity and pride outside her house but she also
faces ill-treatment and other atrocities within the four walls of her
house. Due to that women are the real downtrodden of the society.
They are discriminated at two levels, firstly they suffer because of
their gender and secondly due to grinding poverty.
Objects of the Protection of Women from Domestic Violence Act, 2005:
The preamble of the Act indicates the main object of the 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 formatters connected therewith or incidental thereto.
Thus the Protection Of Women From Domestic Violence Act, 2005 is enacted to provide for more effective protection of rights of women guaranteed under the Constitution who are victims of violence occurs within family. It is enacted to provide speedy remedies to women who are subjected to domestic violence. It is a gender specific enactment. It recognizes woman’s right to reside in violence free environment, both in her parental & matrimonial home.
Important Definitions:
- According to Section 2(b) of the Act, “child” means any person below the age of eighteen years and includes any adopted, step or foster child.
- According to Section 2(e) of the Act, “domestic incident report” means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person
- According to Section 2(o) of the Act, “protection order” means an order made in terms of section 18.
- According to Section 2(p) of the Act, “residence order” means an order granted in terms of sub-section (1) of section 19.
Aggrieved Person:
According to Section 2(a) of the Act, “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.
According to Section 2(f) of the Act, “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
According to Section 2(s) of the Act, “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent 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 respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
Under this Act, “ 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. The expression domestic relationship means a relationship between two persons who live or have, at any point of time, live together in a shared household. When they are related by consanguinity, marriage or through the relationship in the nature of marriage, adoption or a member of family living together as joint family. Even those women who are sisters, widows mothers, single woman or living with the abuser are entitled to legal protection. Any widow or unmarried sister or daughter who is harassed within the home can also resort to the law. The law also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in law. The Act enable the wife or the female living in the relationship in the nature of marriage to file complaint against any relative of the husband. 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. Even women in past relationship like widow is also entitled to relief under this Act.
In M.Palani v Meennakshi 2008 (65) AIC 686 case, the Court held that “Provision does not say that for constitute domestic relationship, it is necessary that woman should live together for particular period.”
In D. Veluswamy Vs. D. Patchaiammal, (2010) 10 SCC 469 case, while dealing with the scope of the expression “domestic relationship” under the DV Act, the Hon’ble Apex Court considered the question as to what is the meaning of the expression “a relationship in the nature of marriage”, which is not defined under the Act. The Hon’ble Apex Court held that to get the benefit of DV Act, all “live-in” relationships will not amount to a “relationship in the nature of marriage” . To get such benefit following conditions must be satisfied:
- The couple must hold themselves out to society as being akin to spouses;
- They must be of legal age to marry;
- They must be otherwise qualified to enter into a legal marriage, including being unmarried;
- They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time; and
- They must have lived together in a ‘shared household’ as defined under section 2(s) of the Act.
In Deepak v. The State of Maharashtra MANU/MH/1726/2015 case the core issue before court below was as to whether the applicant and respondent no. 2 had lived together for reasonably long period of time in a relationship which was in the nature of marriage. The point was answered in the affirmative. It is observed that Respondent no. 2 knew that applicant was a married person and he had children from his wife and that applicant has been staying with his wife. Despite that she had maintained relationship with the applicant said relationship cannot be relationship in the nature of marriage. Therefore, it cannot be said that Respondent no. 2 was aggrieved person within the meaning of section 2(a) of the Act. She was obviously therefore not entitled for any relief under The Protection of Women from Domestic Violence Act, 2005.
Respondent:
According to Section 2(q) of the 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.
The word “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 the act provided that an aggrieved wife or female living in a relationship in a nature or marriage may also file a complaint under the act against the relative or male person.
In Sandhya Wankhede v. Manoj Wankhede, 2011 ALL M R (Cri.) 975 (SC) case, it is held that respondent includes female relatives of husband also. Same view was taken in Jaydeep Singh v. State of Gujarat, 2010 Cri.L.J. 2462 and also in Archana Naik v. Urmilaben, 2010 Cri.L.J. 751. So aggrieved woman can file complaint against her mother-in-law or sister-in-law also under D.V. Act.
Domestic Violence Defined:
Section 3 of the Protection of Women from Domestic Violence Act, 2005 defines the term ‘Domestic Violence’ as follows:
For the purposes of this Act, 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.
Explanation I.—For the purposes of this section,—
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, house hold necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.
The expression “Domestic Violence” has been defined in see 3 of the Act. It is very comprehensive. It embraces wide range of wrongs. Roughly it includes physical injury, mental harm, sexual harassment, economic exploitation, emotional abuse and many acts of commissions and omissions rooted in gender discrimination, inequality, subordination and injustice. This Act elaborately describes following concepts:
Physical Violence:
Physical violence is the intentional use of physical force with the potential for causing injury, harm, disability, or death. It includes hitting, slapping, beating, arm-twisting, stabbing, strangling, burning, choking, kicking, shaking, pushing, pulling, punching, scratching, pinching, hair pulling, shooting, drowning, burning, and threats with an object or weapon, and murder.
physical violence also includes female foeticide and female infanticide, incest rape within marriage, connivance, and collusion of family members for sexual abuse of women in the household; burdening of women with drudgery, neglect of women’s health problems, trapping woman in a room, denying the victim of medical care when needed, depriving the victim of sleep or other functions necessary to live, or forcing the victim to engage in drug/alcohol use against her will. It also includes inflicting physical injury onto other targets, such as children or pets, in order to cause psychological harm to the victim.
Verbal Abuse:
Verbal abuse (also verbal attack or verbal assault) is the act of forcefully criticizing, insulting, or denouncing another person. Verbal abuse includes name calling (‘ugly’, ‘bitch’, ‘whore’, or ‘stupid’), yelling, screaming, rampaging, terrorizing, cursing, criticizing, ridiculing and insulting the wife which results in mental pain. It also includes use of abusive language to denigrate, embarrass or threaten victim and refusing to talk.
Emotional Abuse:
Emotional abuse is a way to control another person by using emotions to criticize, embarrass, shame, blame, or otherwise manipulate another person. It is one of the hardest form of abuse to recognize. It includes insulting or criticizing to undermine the victim’s self-confidence. This includes public humiliation, as well as actual or threatened rejection. It also includes threats of abandonment or abuse, confinement to the home, surveillance, threats to take away custody of the children, destruction of objects, isolation, verbal aggression and constant humiliation, threat to kill or abandon victim, children, curbing the freedom to associate with the natal family, neighbours, and friends, curtailment of right to self-expression, irresponsible behaviour and alcoholism of the husband, consistently disregarding, ignoring, or neglecting the victim’s requests and needs, forcing the victim to take drugs or alcohol, not allowing the victim to practice their religious beliefs.
Sexual Abuse:
Sexual abuse is using sex in an exploitative fashion or forcing sex on another person. Sexual abuse includes coerced sex through threats, intimidation or physical force, forcing unwanted sexual acts or forcing sex with others, Laughing or making fun of another’s sexuality or body, making offensive statements, insulting, or name-calling in relation to the victim’s sexual preferences/behaviour, having affairs with other people and using that information to taunt the victim, making abusive sexual contact.
Economic Abuse:
Economic abuse is a way to control the victim through the manipulation of economic resources. Economic abuse is when the abuser has complete control over the victim’s money and other economic resources. Usually, this involves putting the victim on a strict ‘allowance’, withholding money at will and forcing the victim to beg for the money until the abuser gives them some money, spending money for necessities (food, rent, utilities) on nonessential items (drugs, alcohol, hobbies.), withholding of physical needs including interruption of sleep or meals, denying money, food, transportation, or help if sick or injured, locking victim into or out of the house, refusing to give or rationing necessities.
Duties of Police Officer, Protection Officer, Service Provider And The Magistrate:
Under Section 5 the duties of police officer, Protection officer, service provider and the Magistrate to inform the aggrieved person
- 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;
- of the availability of services of service providers;
- of the availability of services of the Protection Officers;
- of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
- of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:
Protection Officer:
According to Section 2(n) of the Act, “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8 of the Act.
According to Section 4 of the Act, 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. No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub-section (1).
Duties and Functions of Protection Officer:
- to assist the Magistrate in the discharge of his functions under this Act;
- to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
- to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
- to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
- to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
- to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
- to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;
- to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
- to perform such other duties as may be prescribed. (2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
Procedure of Obtaining Order or Relief:
An aggrieved woman or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act, who shall fix the first date of hearing of the application ordinarily within three days of its receipt and shall be endeavor to dispose of every application within sixty days of the first hearing (Section 12 of the said Act). This is to because of the urgency with which the proceedings under the Act are expected to be concluded in an expeditious manner. These are two unique & vital procedural provisions of this Act. The Magistrate may at any stage of the proceedings, direct the parties, either singly or jointly, to undergo counseling with any members of the Service Provider so qualified and experienced. The member of service provider providing the counseling shall possess such qualification and experience as may be laid down by the Central Government or rules, where any counseling has been ordered under this clause, the Magistrate shall fix the next date of hearing of the case within the period not exceeding two months. As per G.R. dt. 30.10.2007 the State Government has appointed its service provider to provide following types of counsellings. (1) Psychiatric counselling of the aggrieved person (2) Family Counselling (3) Counselling for group of people who are victims of Domestic Violence & Family Disputes. The Magistrate may secure the services of a person, preferably a woman, engaged in promoting family welfare for the purposes of assisting the Court in discharge of its functions (Section 14 of the said Act). The proceedings may be held in camera if either party so desires. The Magistrate, under the Act is empowered to pass Protection Order, Residence Order. Monetary Relief, Custody orders compensation orders, interim or ex-parte orders. As per Rule 15(6) of Rules, the summary trial procedure should be followed. Under section 25 the magistrate may alter, modify, or revoke any order passed by him on the receipt of application of aggrieved person or the respondent. Under Section 28 the Court can lay down its own procedure for disposal of application for any relief or for ex-parte order. Under Section 24 of the Act Court can supply copies of order passed free of charge to the parties to the application, to concerned police officer and the service providers.
Conclusion:
For centuries, domestic violence has been perceived as a part of the normative structure in patriarchal societies. Women have been victims of abuse by their spouses and often by members of their family. Violence to wives is found in all societies and across all economic and age groups. It seems indeed a great pity that despite the proliferation of education, the growing emancipation of women, and revolutionary changes in people’s attitude towards the institution of family in this century all over the world, domestic violence persists and is still tolerated. Women form the largest group of victims. However, men, children, and elderly people can also be victims of domestic violence. Domestic violence occurs at all levels in society and in all population groups. Abuse is usually deliberate, but not always. The solutions to the problem are often far from obvious and policies that seem at first sight to be attractive may not always be very effective. For example, an obvious solution towards empowering women is increasing their labour force participation which is expected to enhance their bargaining power at home leading to lower domestic violence. However, it could also lead to greater exposure to other types of crimes outside the home, e.g. at workplaces or while traveling to work. Hence solution should be found with the judicious mix.