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Protection of Women from Domestic Violence Act, 2005


Introduction

Domestic violence is an evil that is widely prevalent and yet remains invisible in the public domain. It is the most pervasive form of violence. It is also called as gender violence or intimate partner violence. Even during the lockdown period, we saw a sharp rise in the domestic violence cases. In India, this form of violence had been allowed to continue in the past by the state under the pretense of refusing to interfere in the private married life thereby escaping accountability and responsibility.


However, with the increase in public and international consciousness and as a result of several years of activism and lobbying by the women, the Protection of Women from Domestic Violence Act was enacted and was enforced on 26th October, 2006. It is a fantastic piece of social legislation as it encompasses all kinds of abuse including verbal abuse, emotional abuse, financial, physical or sexual abuse.


Scope of the Act

The scope of DV Act is very wide and inclusive. It provides a comprehensive definition of the term 'domestic violence' and 'aggrieved person'. Almost all kinds of abuse and even the threat of such abuse constitutes domestic violence under the Act. Harassment by demanding dowry is also covered under the Act. The Act includes only women victims of domestic violence under the definition of 'aggrieved person'. However, the respondent may be husband or his relatives, man or woman. The Act also covers those woman who is in a live in relationship with the respondent. The term 'domestic relationship' under Section 2(f) of the Act is defined as a relationship between two persons who are living or have lived in a shared household together and they are related by marriage or consanguinity or a relationship in the nature of marriage, adoption or are family members. The Act also provides for appointment of protection officers, taking assistance of welfare experts and providing counselling services etc.


Meaning of Domestic Violence

DV Act, 2005 gives a comprehensive definition of the term domestic violence which includes both actual abuse and threat of abuse. Section 3 of the Act provides that an act of commission or omission or conduct shall constitute domestic violence if it:

(a) causes harm or injures or endangers the health, safety, life, limb or mental or physical well‑being, of the aggrieved person or tends to do so. It includes causing physical abuse, verbal abuse,sexual abuse, emotional abuse and economic abuse; or

(b) harasses,injures, harms, or endangers the aggrieved person to force her or a person related to her to fulfill any unlawful demand for dowry, other property or valuable security; or

(c) threatens the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) injures or causes any physical or mental harm to the aggrieved person.



Types of Abuse

Explanation I to Section 3 of the Act provides for the various types of abuse covered under the act:

  1. Physical Abuse: Physical Abuse includes acts or conduct which causes bodily pain, harm, or danger to life, limb, or health or impairs the health or development of the aggrieved person and includes assault, criminal force and criminal intimidation.

  2. Sexual Abuse: Sexual abuse, according to the Act, means any conduct of a sexual nature that abuses, degrades, humiliates,or in any other way violates the dignity of woman.

  3. Verbal and emotional abuse: It include:

  4. insulting, ridicule, name calling, humiliating, and insults or ridicule especially with regard to not having a child or a male child; and

  5. Repetitive threats to cause physical pain to a person in whom the aggrieved person is interested.


4. Economic abuse: It includes:

  1. depriving the aggrieved person of the economic or financial resources to which she is entitled under any law or custom or which she requires out of necessity. These resources include but are not limited to, household necessities and stridhan, property, whether owned jointly by the parties or separately by the aggrieved person, payment of rent of the shared household and maintenance;

  2. disposing off household effects, any alienation of assets, valuables, shares, bonds, securities 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 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) prohibiting or restricting 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.


Types of orders under the Act

Various kinds of orders that can be passed by a Magistrate under this act are as follows:

  1. Protection Orders(Section 18)

After hearing both the parties, if the magistrate is satisfied that domestic violence has taken place or is likely to take place, he may pass a protection order in favour of the aggrieved person. Such an order may prohibit the respondent from:

  1. committing any act of domestic violence

  2. aiding or abetment in commission of domestic violence

  3. entering the place of employment of the aggrieved person or in case the person aggrieved is a child, its school

  4. attempt to communicate with the aggrieved person in any form whatsoever including personal, oral or telephonic contact etc

  5. alienation of assets, operating Bank lockers or accounts that are used or held or enjoyed by both the aggrieved person and the respondent or singly by the respondent. The respondent cannot alienate or appropriate her stridhan or other property that is held either jointly by the parties or separately by them. The permission of the Magistrate has to be taken for the same.

  6. causing any violence to persons or relatives who provide assistance to the aggrieved person from domestic violence

  7. Commission of any other act mentioned in the protection order



2. Residence orders(Section 19)

A magistrate is also empowered to pass the following residence orders under the act:

  1. restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, irrespective of whether the respondent has a legal or equitable interest in the shared household

  2. Direction to respondent for removing himself from the shared household. But no such order can be passed against any person who is a woman.

  3. restraining the respondent or his relatives from entering the portion of the shared household where the aggrieved person resides

  4. Restrain the respondents from alienating the shared household or encumbering the same

  5. The respondent can be restrained from giving up his rights in the shared household except by the leave of the magistrate

  6. Direction may be given to respondent for securing for the aggrieved person the same level of alternative accommodation as the one that is enjoyed by her in the shared household

While passing any of the above residence orders, the magistrate may impose any additional conditions or give any other direction to protect or to provide for the safety of the aggrieved person or her child's safety.

Also, the magistrate may order the respondent to execute a bond with or without sureties for preventing the commission of domestic violence.


3. Monetary Reliefs (Section 20)

The magistrate also has the power to direct the respondent to pay monetary relief to meet the expenses incurred and loss suffered by the aggrieved person as a result of domestic violence. Such relief includes the following but is not limited to:

  1. the loss of earnings

  2. Medical expenses

  3. loss caused due to damage, destruction, or removing of any property from aggrieved person's control and

  4. maintenance for aggrieved person and her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973

However, Such monetary relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.


4. Custody Orders(Section 21)

The magistrate may, at any stage of the hearing of the application for protection order or for any other relief under this act grant temporary custody of any child or children to the aggrieved person or the person who makes an application on her behalf. The Court may also specify the arrangements for visits by the respondent in such a case. Also, if the magistrate is of the opinion that any such visit of the respondent may be harmful to the interest of the child the magistrate shall refuse to allow such visit.


5. Compensation Orders(Section 21)

The magistrate is empowered to pass an order of compensation on the application by the aggrieved person, directing the respondent to pay damages and compensation for the injuries including mental torture and other emotional distress caused by domestic violence.


Right to reside in a shared household

Section 17 of the DV act provides that every woman who is in a domestic relationship has the right to reside in the shared household irrespective of whether she has any right, title or beneficial interest in the same or not. Also, the aggrieved person cannot be evicted from the shared household or any part of it by the respondent except in accordance with the procedure established by law.


Penalties under the Act

The various penalties provided under the DV act are as follows:

  • Penalty for breach of protection order by respondent: In case the respondent breaches a protection order or an interim protection order under the act he shall be punishable with imprisonment or fine or both. The maximum period of imprisonment that can be imposed is one year and the maximum amount of fine is 20,000 rupees.

  • Penalty for not discharging duty by protection officer: In case, a protection officer fails to discharge his duties or refuses to do so as directed by the magistrate in the protection order without any sufficient cause he shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to 20000 rupees, with both.



Judicial Perspective

In Krishna Bhatacharjee vs Sarathi Choudhury And Anr., the Hon'ble Supreme court has laid down some guidelines that the courts must follow while dealing with a case under this Act. These guidelines are:


  1. While giving the decision, the court must keep in mind that the helpless aggrieved person has approached the court in compelling circumstances.

  2. It has to be ensured that the court scrutinizes the facts from all angles. Efforts must be taken for ensuring whether the plea advanced by the respondent to nullify the grievances of the aggrieved person is legally and factually correct.

  3. The court must uphold the truth and aim at delivering proper justice.


In the case of Satish Chander Ajuha v. Sneha Ahuja, the Supreme Court gave an important ruling interpreting the provisions of DV Act. The Court held that 'shared household' under Section 2(s) cannot be read to mean that it can only be that household which is the household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.


In Ramendra Kishore Bhattacharjee v. Smt. Madhurima Bhattacharjee, the Tripura High Court has held that denying maintenance allowance to a wife constitutes "Economic Abuse" in the definition of Domestic Violence under the Act.



Conclusion

The Act provides fruitful remedies in safeguarding the interests of women who have been the victims of domestic violence. The Act provides protection orders, medical facilities,right to reside in a shared household,monetary reliefs and compensation orders etc. to the aggrieved woman. However, despite being an effective piece of legislation there have been loopholes in its implementation and many cases of domestic violence often go unreported. Thus, it is pertinent to evolve stringent measures for proper implementation of this act. Only then, the evil of domestic violence can be eradicated.


By Nidhi Bajaj

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