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AN ANALYSIS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
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AN ANALYSIS
OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
AUTHORED BY - MS. DIMPLE PAREEK*
*LL.M. student at School of Law,
Galgotias University
Abstract- “Domestic
Violence has existed in our society as a social evil for centuries now. To curb
the evil, Section 498A was introduced in The Indian Penal Code, 1860; but it
existed as a remedy under the criminal law. To introduce remedy for violence of
any kind under the civil law, The Protection of Women from Domestic Violence
Act was enacted in 2005. It includes every kind of violence including physical,
sexual, economic, emotional and verbal abuse. To analyze all the provisions of
this Act is the primary aim of this study. In this article, all the important
provisions of the Act have been discussed in details.”
Keywords- Domestic
Violence, provisions of DV Act, analysis of Domestic Violence Act etc.,
1.
INTRODUCTION
Domestic violence against women is a pervasive
societal issue that violates fundamental human rights and dignity. For centuries,
this insidious form of abuse was shrouded in silence and stigma, often
considered a private matter within families. However, domestic violence has
deep-rooted consequences not just for the victims but also for society at
large. It perpetuates cycles of violence, undermines gender equality, and
impedes the overall development and progress.of.nations.
In India, the issue of cruelty against women within households gained legal recognition with the introduction of Section 498A in the Indian Penal Code in 1983. However, this criminal legislation proved inadequate in providing effective civil remedies and preventive measures to protect women from domestic abuse. It was in this context that the Protection of Women from Domestic.Violence.Act.was.enacted.in.2005.
This pioneering legislation marked a paradigm shift in how the Indian legal system addressed violence within the confines of a home or domestic relationship. The Act not only criminalized physical forms of abuse but also recognized emotional, verbal, economic, and sexual violence as punishable offenses. It provided a comprehensive framework for women to seek immediate relief through protection orders, monetary compensation, shelter, and other provisions.
2. GENERAL INFORMATION
The Domestic Violence Act was enacted
in the year 2005. Various International Instruments had already acknowledged that
domestic violence is a human rights issue; and every State shall work towards
curbing the same.[1] Those
Instruments included the Vienna Accord (1994), the Beijing Declaration and the
Platform for Action (1995), and The United Nations Committee on Convention on
Elimination of All Forms of Discrimination Against Women (CEDAW) (1989).[2] In
India, criminal law addressed the issue of cruelty against women under Section
498A. However, no remedy was provided under the civil law. As a result, the
Domestic Violence Act came into force on 26-10-2006, and is applicable to whole
of India.[3] The
aim was to provide effective protection to women from violence of any kind,
occurring within a family, as prescribed under the Indian Constitution.[4]
3. MAIN PROVISIONS OF THE ACT
Under this chapter all the important
provisions of the Act have been discussed in an uncomplicated manner.
3.1 PARTIES INVOLVED IN THE ACT OF DOMESTIC VIOLENCE
In the act of Domestic Violence, two
parties are involved i.e. ‘aggrieved person’ and ‘respondent’. An aggrieved
person can only be a woman who is or has been in a domestic relationship with
the respondent, who allegedly commits the act of domestic violence.[5] A
Respondent earlier could be any ‘adult male person’ who is or has been in a
domestic relationship with the aggrieved person against whom a complaint of
domestic violence is filed. In case an aggrieved woman is a wife of her
husband, or female partner living in a live-in relationship, she could file a
complaint against her husband’s or male partner’s relatives as well. However,
in 2016 a landmark judgment was passed which deleted the term ‘adult male
person’ and the proviso to Section 2(q); after which a Respondent can be any
person living in a domestic relationship which includes women and minors.[6]
The definitions of aggrieved person
and respondent include an important term ‘domestic relationship’. So, a
domestic relationship is a relationship between two parties, who live or have
at any point of time lived together in a shared household, where they are
related to each other either by blood, marriage, adoption, being family members
living in a joint family or through a relationship in the nature of marriage.[7]
Here, the term shared-household means a household where an aggrieved and
respondent lives or have lived at any point of time lived together in a
domestic relationship.[8]
The household can be rented or owned either by both the parties or singly, and
can be a household belonging to the joint family of which the Respondent is a
member.
3.2 DEFINITION OF DOMESTIC VIOLENCE
Domestic violence can be an act/
omission/ commission or conduct of the Respondent were the Respondent harms or
injures the body parts of an aggrieved, endangers her life, harasses her with
an intention to coerce her or any other person related to her to meet their
unlawful demands.[9] The act
of violence can be in the form of physical, sexual, economic, emotional or
verbal abuse. It means that name-calling a woman for not being able to bear a
child/ male child, or depriving her from basic needs also amounts to domestic
violence.[10]
3.3 FILLING A COMPLAINT OF DOMESTIC VIOLENCE
Information about the occurrence of
domestic violence can be given to a Protection Officer by anyone who has a
reason to believe that an act of domestic violence has been/ is being committed,
or is likely to be committed.[11] If
an information is given in good faith and turns out to be false, still no civil
or criminal liability can be incurred against such person.[12]
3.4 DUTIES OF VARIOUS STAKEHOLDERS UNDER THE ACT
Different stakeholders have different
roles to play under the Act. The stakeholders include Magistrate, Police
Officer, Protection Officer and Service Provider. An incidence of domestic
violence can be reported to any one of them and a Complaint can also be filed. They
all have a duty to inform the aggrieved person regarding her right to get free
legal aid, right to file application seeking relief under the Act, availability
of service by shelter homes and medical facilities, right to file a complaint
under Section 498A of the Indian Penal Code; when they receive a complaint/
information of such incidence or when they are present where the cause of
action arose.[13]
A Protection Officer is appointed by the
State Government in each district, as many as they consider necessary, and as
far as possible shall be a woman.[14] They
have a duty to assist the Magistrate, to present Domestic Incident Report to
the Magistrate, to make available all the services provided under the Act to an
aggrieved, to protect the aggrieved person, and maintain list of all the
service providers giving facilities in a local area.[15]
A Service Provider cannot simply be an
individual who wants to do social service for upliftment of women in the
society. It can be an association registered under the Societies Registration
Act, 1860 or a company registered under the Companies Act, 1956 or under any
other law in force, who has an objective to help and assist women; be it
financially, medically etc.[16] A Service Provider has a duty to record
Domestic Incident Report, provide assistance to an aggrieved and ensure her
safety.[17]
The Protection Officers and Service
Providers are deemed to be Public Servants as per Section 21 of the Indian
Penal Code, and no prosecution lies against them if they work in good faith.[18] However,
if a Protection Officer fails or refuses to discharge their duty without
reasonable cause, in case of a Protection Order then he/she can be punished for
up to one year of imprisonment, or with fine up to Rs. 20,000, or both but only
with the previous sanction of the Government.[19]
3.5 JURISDICTION OF THE COURT
Under the Act, the jurisdiction of
receiving complaints of domestic violence lies with the Magistrate. The
Magistrate can include Judicial Magistrate of the First Class (JMFC), or
Metropolitan Magistrate (MM).[20] The
JMFC or MM can exercise their jurisdiction in the area where the aggrieved
person temporarily/permanently works or resides, the respondent permanently/temporarily
works or resides, or where the cause of action occurred.[21] An
order passed by the Court is enforceable throughout India[22]
and appeal lies before the Court of Session. An appeal can be made within
thirty days from the date on which the order passed by the Court is received by
the parties (whoever receives it later). [23]
3.6 SERVICE PROVIDED UNDER THE ACT
It is the duty of the Service
Providers or Protection Officers to inform an aggrieved about her right to free
legal aid. Apart from that, it is their duty to make available a shelter home
or medical facility on behalf of an aggrieved person. If a request is made to
the person in-charge of such medical facility or shelter home, then they are
bound to provide such facilities to an aggrieved.[24] Furthermore,
if the Magistrate at any stage of the proceedings feel the necessity of
Counselling, then he/she may direct both the parties together or individually
to undergo counselling with a qualified service provider.[25]
3.7 DUTIES/ POWERS OF THE GOVERNMENT
The government plays multiple roles
under the Domestic Violence Act. Firstly, it is the duty of both State and
Central government to ensure widespread publicity of the provisions of the Act.[26] Secondly,
they are responsible to take measures to train their own employees periodically
regarding the issues addressed by the Act.[27] Thirdly,
both the governments have to ensure effective co-ordination between services
provided by different ministries and departments and review the work done by
them.[28] Lastly,
it is their collective duty to compile all the important documents together and
put it in place to secure them.[29] When
it comes to the rule making power, it lies with the Central Government. Whenever
a new rule is to be made, firstly it is laid before both the houses of the
Parliament, while it is in session for a period of thirty days. Only then it is
passed, and if the Houses suggest some modifications, then they are also taken
into consideration before making a new rule.
3.8 ORDERS OF RELIEF PASSED UNDER THE ACT
When an incidence of Domestic
Violence takes place, an application can be filed by the aggrieved person or any
other person, on her behalf before the Magistrate, to seek relief.[30] The
Magistrate then shall fix the first date of hearing within three days of
receiving the application (ordinarily).[31] The
Magistrate shall try his/her best to dispose of the matter within 60 days of
the date of first hearing.[32] The
notice of such date of hearing shall be served to the parties involved within
two days or within the reasonable time prescribed by the Magistrate.[33]
When the matter starts in the Court
of law, on the request of either of the parties, or on the consideration of the
Magistrate, the proceedings may be held in-camera.[34] Various
reliefs can be sought by an aggrieved person, which includes- the right to
reside in a shared household, Protection Order, Residence Order, Monetary
Relief, Custody Order and Compensation Order.
A woman in a domestic relationship, living
in a shared household has the right to reside in it, no matter she has any
right/ title or beneficial interest in the same or not. An aggrieved woman
living there cannot be evicted from such shared household. If the Magistrate is
prima facie satisfied that an act of domestic violence has taken place then
he/she may pass a Protection Order, restraining the respondent from meeting or
communicating the aggrieved person by any means. The Protection Order is also
passed to restraint the Respondent from committing/ aiding/ abetting the act of
domestic violence.[35]
While disposing the application of
domestic violence, if the Magistrate is satisfied that violence has taken place,
he/she may pass residence order, restraining the Respondent from alienating/
renouncing property or rights in the shared household. The Magistrate may even
direct the male respondents to remove themselves from the shared-household or
find alternate accommodation for the aggrieved.[36] The
Magistrate may also restraint the Respondent or his relatives from entering into
the portion of the shared household, where the aggrieved resides.
While disposing an application, the
Magistrate may even direct the Respondent to pay monetary relief to the
aggrieved for the expenses incurred and losses suffered.[37] It
includes medical expenses, maintenance of aggrieved or children, but is not
limited to it. Apart from this monetary relief, compensation order can also be
passed by the Court in addition, for all the emotional, physical and mental
injuries caused to her by violence.[38]
3.9 PUNISHMENT PROVIDED UNDER THE ACT
The Domestic Violence Act provides
for punishment only in two scenarios.
If a Respondent breach a Protection
Order or Interim Protection Order then he/she can be punished for up to one
year of imprisonment, or with fine up to Rs. 20,000, or both. The Court may
conclude that a Respondent has breached a Protection Order merely depending on
the sole testimony of an aggrieved person.[39]
Similarly, if a Protection Officer fails
or refuses to discharge his/her duty without any sufficient cause, then he/she
can also be punished for up to one year of imprisonment, or with fine up to Rs.
20,000, or both.
3.10
MISCELLANEOUS
A copy of all the orders passed by
the Magistrate under the Domestic Violence Act is to be provided to the parties
and all the stakeholders, free of cost.[40] When
a Protection Order is passed by the Magistrate, it remains in force until the
aggrieved women files an application for discharge.[41] The
aggrieved person or the Respondent can file an application for any kind of
alteration, modification or revocation of an order.[42] If
a Magistrate is satisfied that there has been some change in the circumstances,
he/she may provide reasons in writing and allow for such amendment in the
Order.
Furthermore, Protection Order,
Residence Order and all the other kinds of relief provided under the Act can be
sought in legal proceedings before a civil court, family court or a criminal
court.[43] Such
relief can be sought in addition to what has been requested under the Domestic
Violence Act; however, the aggrieved person is bound to inform about the same
to the Magistrate.[44] All
the proceedings done by the Court are governed as per the provisions of the
Code of Criminal Procedure, 1973; however, if the Court seems fit, they can
make their own procedure for disposal of applications.[45] Moreover,
the Act goes hand-in-hand with other laws in force, which means it is not in
derogation with any other law.[46]
4. CONCLUSION
Concluding, the Domestic Violence Act
of 2005 played a pivotal role in addressing the issues related to domestic
violence by including ‘any kind of violence’ happening within a family, which
includes physical, sexual, economic, verbal and emotional abuse. The comprehensive framework provides the
victim with various kinds of protection to ensure her safety and well-being.
Through the establishment of support
systems, remedies, and rights, the Act seeks to provide safer surroundings for
those living in a domestic relationship. It in fact provides remedy to woman
living in live-in relationships, thereby breaking all the stereotypes.
However, strong execution, community
education, and ongoing challenges to cultural norms that encourage violence are
necessary for it to be effective. To fully achieve the Act's objective in
defending the rights and welfare of every person, continued activism, improved
support networks, and an unwavering dedication to ending domestic abuse are
necessary.
[1] The Protection of
Women from Domestic Violence Act, 2005, STATEMENT OF OBJECTS AND REASONS, No.
43, Acts of Parliament, 2005 (India).
[3] The Protection of
Women from Domestic Violence Act, 2005, S. 1(2), No. 43, Acts of Parliament,
2005 (India).
[4] The Protection of
Women from Domestic Violence Act, 2005, PREAMBLE, No. 43, Acts of Parliament,
2005 (India).
[5] The Protection of
Women from Domestic Violence Act, 2005, S. 2(a), No. 43, Acts of Parliament,
2005 (India).
[6] Hiral P.
Harsora & Ors. v. Kusum Narottamdas Harsora & Ors., (2016) 10 SCC 165.
[7] The Protection of Women from
Domestic Violence Act, 2005, S. 2(f), No. 43, Acts of Parliament, 2005 (India).
[8] The Protection of Women from
Domestic Violence Act, 2005, S. 2(s), No. 43, Acts of Parliament, 2005 (India).
[9] The Protection of Women from
Domestic Violence Act, 2005, S. 3, No. 43, Acts of Parliament, 2005 (India).
[10] The Protection of Women from
Domestic Violence Act, 2005, S. 3 Exp-I, No. 43, Acts of Parliament, 2005
(India).
[11] The Protection of Women from
Domestic Violence Act, 2005, S. 4, No. 43, Acts of Parliament, 2005 (India).
[12] The Protection of Women from
Domestic Violence Act, 2005, S. 4(2), No. 43, Acts of Parliament, 2005 (India).
[13] The Protection of Women from
Domestic Violence Act, 2005, S. 5, No. 43, Acts of Parliament, 2005 (India).
[14] The Protection of Women from
Domestic Violence Act, 2005, S. 8, No. 43, Acts of Parliament, 2005 (India).
[15] The Protection of Women from
Domestic Violence Act, 2005, S. 9, No. 43, Acts of Parliament, 2005 (India).
[16] The Protection of Women from
Domestic Violence Act, 2005, S. 10, No. 43, Acts of Parliament, 2005 (India).
[17] Id.
[18] The Protection of Women from
Domestic Violence Act, 2005, S. 30, No. 43, Acts of Parliament, 2005 (India).
[19] The Protection of Women from
Domestic Violence Act, 2005, S. 33, No. 43, Acts of Parliament, 2005 (India).
[20] The Protection of Women from
Domestic Violence Act, 2005, S. 2(i), No. 43, Acts of Parliament, 2005 (India).
[21] The Protection of Women from
Domestic Violence Act, 2005, S. 27(1), No. 43, Acts of Parliament, 2005
(India).
[22] The Protection of Women from
Domestic Violence Act, 2005, S. 27(2), No. 43, Acts of Parliament, 2005
(India).
[23] The Protection of Women from
Domestic Violence Act, 2005, S. 29, No. 43, Acts of Parliament, 2005 (India).
[24] The Protection of Women from
Domestic Violence Act, 2005, Ss. 6&7, No. 43, Acts of Parliament, 2005
(India).
[25] The Protection of Women from
Domestic Violence Act, 2005, S. 14, No. 43, Acts of Parliament, 2005 (India).
[26] The Protection of Women from
Domestic Violence Act, 2005, S. 11(a), No. 43, Acts of Parliament, 2005
(India).
[27] The Protection of Women from
Domestic Violence Act, 2005, S. 11(b), No. 43, Acts of Parliament, 2005
(India).
[28] The Protection of Women from
Domestic Violence Act, 2005, S. 11(c) No. 43, Acts of Parliament, 2005 (India).
[29] The Protection of Women from
Domestic Violence Act, 2005, S. 11(d), No. 43, Acts of Parliament, 2005 (India).
[30] The Protection of Women from
Domestic Violence Act, 2005, S. 12, No. 43, Acts of Parliament, 2005 (India).
[31] The Protection of Women from
Domestic Violence Act, 2005, S. 12(4), No. 43, Acts of Parliament, 2005
(India).
[32] The Protection of Women from
Domestic Violence Act, 2005, S. 12(5), No. 43, Acts of Parliament, 2005
(India).
[33] The Protection of Women from
Domestic Violence Act, 2005, S. 13, No. 43, Acts of Parliament, 2005 (India).
[34] The Protection of Women from
Domestic Violence Act, 2005, S. 16, No. 43, Acts of Parliament, 2005 (India).
[35] The Protection of Women from
Domestic Violence Act, 2005, S. 18, No. 43, Acts of Parliament, 2005 (India).
[36] The Protection of Women from
Domestic Violence Act, 2005, S. 19, No. 43, Acts of Parliament, 2005 (India).
[37] The Protection of Women from
Domestic Violence Act, 2005, S. 20, No. 43, Acts of Parliament, 2005 (India).
[38] The Protection of Women from
Domestic Violence Act, 2005, S. 22, No. 43, Acts of Parliament, 2005 (India).
[39] The Protection of Women from
Domestic Violence Act, 2005, S. 31, No. 43, Acts of Parliament, 2005 (India).
[40] The Protection of Women from
Domestic Violence Act, 2005, S. 24, No. 43, Acts of Parliament, 2005 (India).
[41] The Protection of Women from
Domestic Violence Act, 2005, S. 25(1), No. 43, Acts of Parliament, 2005
(India).
[42] The Protection of Women from
Domestic Violence Act, 2005, S. 25(2), No. 43, Acts of Parliament, 2005
(India).
[43] The Protection of Women from
Domestic Violence Act, 2005, S. 26(1), No. 43, Acts of Parliament, 2005
(India).
[44] The Protection of Women from
Domestic Violence Act, 2005, S. 26(3), No. 43, Acts of Parliament, 2005
(India).
[45] The Protection of Women from
Domestic Violence Act, 2005, S. 28, No. 43, Acts of Parliament, 2005 (India).
[46] The Protection of Women from
Domestic Violence Act, 2005, S. 36, No. 43, Acts of Parliament, 2005 (India).
Article Information
AN ANALYSIS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Authors: MS. DIMPLE PAREEK
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/19
- Issue 7
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International Journal for Legal Research and Analysis
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