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.

 

 

 

 

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 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:

Shared Household: A shared household is a household where the aggrieved person lives or has lived in a domestic relationship either singly 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 singly 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.

 

 

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 '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:

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.

 

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:

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.

 

 

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 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: