India has adopted the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights, both of which ensure that women are given equal rights as men and are not subjected to any kind of discrimination. The Constitution of India also guarantees substantive justice to women. Article 15 of the Constitution provides for prohibition of discrimination against the citizens on grounds of religion, race, caste, sex or place of birth or their subjection to any disability, liability or restriction on such grounds. Article 15 (3) gives power to the legislature to make special provision for women and children. In exercise of this power, the Protection of Women from Domestic Violence Act was passed in 2005.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
MAIN FEATURES OF THE ACT
Domestic Violence: The term "domestic violence" includes elaborately all forms of actual abuse or threat of abuse of physical, sexual, verbal, emotional and economic nature that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical aspects of the aggrieved person. The definition is wide enough to cover child sexual abuse, harassment caused to a woman or her relatives by unlawful dowry demands, and marital rape.
The kinds of abuse covered under the Act are:
- Physical Abuse-
- an act or conduct causing bodily pain, harm, or danger to life, limb, or health;
- an act that impairs the health or development of the aggrieved person;
- an act that amounts to assault, criminal intimidation and criminal force.
- Sexual Abuse-
- any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman.
- Verbal and Emotional Abuse-
- any insult, ridicule, humiliation, name-calling;
- insults or ridicule for not having a child or a male child;
- repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
- Economic Abuse-
- depriving the aggrieved person of economic or financial resources to which she is entitled under any law or custom or which she acquires out of necessity such as household necessities, stridhan, her jointly or separately owned property, maintenance, and rental payments;
- disposing of household assets or alienation of movable or immovable assets;
- restricting continued access to resources or facilities in which she has an interest or entitlement by virtue of the domestic relationship including access to the shared household.
- Domestic Relationship: A domestic relationship as under the Act includes live-in relationships and other relationships arising out of membership in a family.
- Beneficiaries under the Act:
- Women: The Act covers women who have been living with the Respondent in a shared household and are related to him by blood, marriage, or adoption and includes women living as sexual partners in a relationship that is in the nature of marriage. Women in fraudulent or bigamous marriages or in marriages deemed invalid in law are also protected.
- Children: The Act also covers children who are below the age of 18 years and includes adopted, step or foster children who are the subjects of physical, mental, or economical torture. Any person can file a complaint on behalf of a child.
- Respondent: The Act defines the Respondent as any adult male person who is or has been in a domestic relationship with the aggrieved person and includes relatives of the husband or male partner.
Shared Household: A shared household is a household where the aggrieved person lives or has lived in a domestic relationship either singularly or along with the Respondent. Such a household should be owned or tenanted, either jointly by both of them or by either of them, where either of them or both of them jointly or singularly have any right, title, interest or equity in it. It also includes a household that may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or person aggrieved has any right, title or interest in the shared household.
RIGHTS GRANTED TO WOMEN
Right to reside in a shared household:
The Act secures a woman's right to reside in the matrimonial or shared household even if she has no title or rights in the household. A part of the house can be allotted to her for her personal use. A court can pass a residence order to secure her right of residence in the household.
The Supreme Court has ruled, in a recent judgment, that a wife's claim for alternative accommodation lie only against her husband and not against her in-laws and that her right to a 'shared household' would not extend to the self-acquired property of her in-laws.
Right to obtain assistance and protection:
A woman who is victimized by acts of domestic violence will have the right to obtain the services and assistance of Police Officers, Protection Officers, Service Providers, Shelter Homes and medical establishments as well as the right to simultaneously file her own complaint under Section 498 A of the Indian Penal Code for matrimonial cruelty.
Right to issuance of Orders:
She can get the following orders issued in her favour through the courts once the offence of domestic violence is prima facie established:
- Protection Orders: The court can pass a protection order to prevent the accused from aiding or committing an act of domestic violence, entering the workplace, school or other places frequented by the aggrieved person, establishing any kind of communication with her, alienating any assets used by both parties, causing violence to her relatives or doing any other act specified in the Protection order.
- Residence Orders: This order ensures that the aggrieved person is not dispossessed, her possessions not disturbed, the shared household is not alienated or disposed off, she is provided an alternative accommodation by the Respondent if she so requires, the Respondent is removed from the shared household and he and his relatives are barred from entering the area allotted to her. However, an order to remove oneself from the shared household cannot be passed against any woman.
- Monetary Relief: The Respondent can be made accountable for all expenses incurred and losses suffered by the aggrieved person and her child due to the infliction of domestic violence. Such relief may include loss of earnings, medical expenses, loss or damage to property, and payments towards maintenance of the aggrieved person and her children.
- Custody Orders: This order grants temporary custody of any child or children to the aggrieved person or any person making an application on her behalf. It may make arrangements for visit of such child or children by the Respondent or may disallow such visit if it is harmful to the interests of the child or children.
- Compensation Orders: The Respondent may be directed to pay compensation and damages for injuries caused to the aggrieved person as a result of the acts of domestic violence by the Respondent. Such injuries may also include mental torture and emotional distressed caused to her.
- Interim and Ex parte Orders: Such orders may be passed if it is deemed just and proper upon commission of an act of domestic violence or likelihood of such commission by the Respondent. Such orders are passed on the basis of an affidavit of the aggrieved person against the Respondent.
Right to obtain relief granted by other suits and legal proceedings:
The aggrieved person will be entitled to obtain relief granted by other suits and legal proceedings initiated before a civil court, family court or a criminal court.
LIABILITIES AND RESTRICTIONS IMPOSED UPON THE RESPONDENT
- He can be subjected to certain restrictions as contained in the Protection and Residence order issued against him.
- The Respondent can be made accountable for providing monetary relief to the aggrieved person and her children and pay compensation damages as directed in the Compensation order.
- He has to follow the arrangements made by the court regarding the custody of the child or children of the aggrieved person as specified in the Custody order.
The Act does not permit any female relative of the husband or male partner to file a complaint against the wife or female partner.
AUTHORITIES RESPONSIBLE AND THEIR FUNCTIONS
The Act provides for appointment of Protection Officers and Service Providers by the state governments to assist the aggrieved person with respect to medical examination, legal aid, safe shelter and other assistance for accessing her rights.
Protection Officers: These are officers who are under the jurisdiction and control of the court and have specific duties in situations of domestic violence. They provide assistance to the court in preparing the petition filed in the magistrate's office, also called a Domestic Incident Report. It is their duty to provide necessary information to the aggrieved person on Service Providers and to ensure compliance with the orders for monetary relief.
Service Providers: These refer to organizations and institutions working for women's rights, which are recognized under the Companies Act or the Societies Registration Act. They must be registered with the state government to record the Domestic Incident Report and to help the aggrieved person in medical examination. It is their duty to approach and advise the aggrieved person of her rights under the law and assist her in initiating the required legal proceedings or taking appropriate protective measures to remedy the situation. The law protects them for all actions done in good faith and no legal proceedings can be initiated against them for the proper exercise of their powers under the Act.
Court of first class Judicial Magistrate or Metropolitan Magistrate: This shall be the competent court to deal with cases of domestic violence and within the local limits of this court, either of the parties must reside or carry on business or employment, or the cause of action must have arisen. The Magistrate is allowed to hold proceedings in camera if either party to the proceedings so desires.
General duties of Police Officers, Service Providers and Magistrate: Upon receiving a complaint or report of domestic violence or being present at the place of such an incident, they are under a duty to inform the aggrieved person of:
- her right to apply for obtaining a relief or the various orders granted under the Act;
- the availability of services of Service Providers and Protection Officers;
- her right to obtain free legal services; and
- her right to file a complaint under Section 498 A of the Indian Penal Code.
Counselors: The Magistrate may appoint any member of a Service Provider who possesses the prescribed qualifications and experience in counseling, for assisting the parties during the proceedings.
Welfare experts: The Magistrate can appoint them for assisting him in discharging his functions.
In charge of Shelter Homes: The person in charge of a shelter home shall provide shelter to the aggrieved person in the shelter home upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.
In charge of Medical Facilities: The person in charge of a medical facility shall provide medical aid to the aggrieved person upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.
Central and State Governments: Such governments are under a duty to ensure wide publicity of the provisions of this Act through all forms of public media at regular intervals, to provide awareness and training to all officers of the government, and to coordinate the services provided by all Ministries and various Departments.
PROCEDURE OF FILING COMPLAINT AND THE COURT'S DUTY
- The aggrieved person or any other witness of the offence on her behalf can approach a Police Officer, Protection Officer, and Service Provider or can directly file a complaint with a Magistrate for obtaining orders or reliefs under the Act. The informant who in good faith provides information relating to the offence to the relevant authorities will not have any civil or criminal liability.
- The court is required to take cognizance of the complaint by instituting a hearing within three days of the complaint being filed in the court.
- The Magistrate shall give a notice of the date of hearing to the Protection Officer to be served to the Respondent and such other persons as directed by the Magistrate, within a maximum period of 2 days or such further reasonable time as allowed by the Magistrate.
- The court is required to dispose of the case within 60 days of the first hearing.
- The court, to establish the offence by the Respondent, can use the sole testimony of the aggrieved person.
- Upon finding the complaint genuine, the court can pass a Protection Order, which shall remain in force till the aggrieved person applies for discharge. If upon receipt of an application from the aggrieved person, the Magistrate is satisfied that the circumstances so require, he may alter, modify or revoke an order after recording the reasons in writing.
- A complaint can also be filed under Section 498 A of the Indian Penal Code, which defines the offence of matrimonial cruelty and prescribes the punishment for the husband of a woman or his relative who subjects her to cruelty.
- For Respondent: The breach of Protection Order or interim protection order by the Respondent is a cognizable and non-bailable offence. It is punishable with imprisonment for a term, which may extend to one year or with fine, which may extend to twenty thousand rupees or with both. He can also be tried for offences under the Indian Penal Code and the Dowry Prohibition Act.
- For Protection Officer: If he fails or does not discharge his duties as directed by the Magistrate without any sufficient cause, he will be liable for having committed an offence under the Act with similar punishment. However, he cannot be penalized without the prior sanction of the state government. Moreover, the law protects him for all actions taken by him in good faith.
An appeal can be made to the Court of Session against any order passed by the Magistrate within 30 days from the date of the order being served on either of the parties.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES 2005
The Act empowers the Central government to make rules for carrying out the provisions of the Act. In exercise of this power the Central government has issued the Protection of Women from Domestic Violence Rules 2005 relating to the following matters:
- the qualifications and experience to be possessed by a Protection Officer and the terms and conditions of his service;
- the form and manner in which a domestic incident report may be made;
- the form and the manner in which an application for Protection Order may be made to the Magistrate;
- the form in which an application for legal aid and services shall be made;
- the other duties to be performed by the Protection Officer;
- the rules regulating registration of Service Providers;
- the means of serving notices;
- the rules regarding counseling and procedure to be followed by a Counselor;
- the rules regarding shelter and medical assistance to the aggrieved person;
- the rules regarding breach of Protection Orders.
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