AN OVERVIEW OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 AND THE PRACTICAL ASPECT

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Domestic violence means violent or aggressive behaviour within home involving violent abuse. Although both men and women can be abused, in most cases, the victims are women and children. Domestic violence is those acts which take place daily behind closed doors and within close relationships. Domestic Violence isn't just hitting, or fighting, or an occasional argument. It is an abuse of power as one partner feels he is in the dominate position. The aim of the abuser is to torture and control the victim by calculated threats, intimidation, and physical violence. It is a slow death of the victim giving a strong negative impact on his/ her dignity and self-worth not only in the eyes of the society but also in his/ her own eyes. Does it put the victim into debates such as why to live and not end my life? Who will be worst affected if I commit suicide? Who is the better person to be approached to help me with this problem? Is keeping silent the best way to fight and deal with this situation? Can I get answers for this problem from the religious books and guides? What are the people thinking or will think of me? How will and from where I will find the courage to face my family, friends, colleagues and society? Therefore the victim suffers both physically as well as psychologically.   

According to statistical data, 55% of woman are victims of domestic violence. In order to deal with this brutality and age-old practise of treating a woman with cruel behaviour and acts, The Protection of Women from Domestic Violence Act, 2005 was enacted by the Indian Parliament. The Act came into effect on 26th October 2006. The Act in conformity with the UN Model Legislation on Domestic Violence. The Act consists of 37 sections, 5 chapters and 7 Forms. The stated objective of the act is 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”. 

This Act is said to be an outcome of the women’s movement in India. Until 1983 there was no separate law enacted for the protection of woman from cruelty and domestic abuse. The provisions under the Indian Constitution, Section 323 to 326, Section 352, Section 498A and Section 301 of the Indian Penal Code and Section 113A of the Indian Evidence Act were cited and applied in cases of domestic violence. Therefore justice came in bits and pieces to the woman as she had to run from pillar to post for seeking various reliefs inadequately available under various Acts. 

The important events that led to the enactment of the Act were: - The Domestic Violence Bill 2001, the drafting of a Bill by National Commission for Women (NCW) in 1994 and the Bill by Lawyers Collective in 1999. Further being a signatory to The Convention on Elimination of All Forms of Discrimination Against Women (CEDAW, December 1993) and Platform for Action, India accepted violence against women to mean “any act of gender-based violence that results in, or 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. Therefore it was important for India to enact a law. Finally, On 24th August 2005, the Indian Parliament passed the Act.

The salient features of the law are (a) the recognition of the second wife and ‘other’ women’s rights, (b) the recognition that domestic violence can be physical, psychological sexual, verbal and economic (c) the enunciation of the rights of women to live in their marital homes, (d) the provision of ad-interim protection orders, (e) the creation of an official cadre called protection officers and recognition for NGOs as service providers, and (f) the provision of positive entitlements, maintenance, protection from future violence the rights to custody over children- as opposed to mere penalization of the husband. 

The important sections and provisions under the Act are as follows.

Section 2(f) defines the domestic relationship as 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. 

Section 3 of the Act defines domestic violence as “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 (c) has the effects 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 cause harm, whether physical or mental, to the aggrieved person. It further provides explanations of some of the terms used in the definition of Domestic Violence- (i) “Physical abuse” (ii) Sexual abuse (iii) Verbal and emotional abuse include- (iv) Economic abuse.  

Section 4 of the Act states “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 inform the “Protection officer”. It further specifies that there is no civil or criminal liability on the informant in good faith. Therefore it creates a social responsibility on members of the community at large who have an obligation to react against violence and act vigilantly. 

Section 5 of Act creates a social-moral responsibility on judicial, law enforcement, legal medical and social institutions to provide assistance to victims and survivors, informing them of their rights and securing immediate relief. It specifies the duties of the police, service providers, protection officers and magistrates.

  Section 6, 7, 10 and 11 creates the responsibility on the government to provide institutional support for victims such as shelter homes, medical facilities and service providers. Section 6 clarifies that shelter homes are bound to provide shelter, Section 7 clarifies that the person in charge of a medical facility shall provide medical aid to the aggrieved and Section 10 lays down the duties of service providers, which include, the recording of Domestic Incidence Reports (DIRs) getting the Victim medical assistance, ensuring her with shelter and also ensures immunity from prosecution. Section 11 lays down the various duties of the Government to give the Act wide publicity, to coordinate different ministries, departments, periodical review and to ensure that protocols for the various ministries concerned including courts are prepared and put in place. 

The role of the Protection Officers are dealt under Section 9, 30, 33 Section 8 of the Act specifies that, as far as possible, protection officer shall be a woman and appointed as a full-time position. Section 9 of the Act defines the duties and functions of the protection officers.

Provisions for Relief under the Act are laid down under Sections 18 to 22. Different forms of relief that are available to victims of domestic violence are Protection Orders under Section 18, Residence Order under Section 19, Monetary Relief under Section 20, Custody Order under Section 21 and Compensation Order under Section 22. 

Section 23 provides for interim ex-parte orders. Section 26 and 28 are important provisions that could be put to use to the fullest extent in getting to provide relief under the Act in any civil, criminal, Family court and also to, lay their own procedures in disposing of applications under the Act. 

Section 12, 13, 14, 15 and 16 in the Act define some of the provisions and procedures for obtaining orders for relief.  Applications to the Magistrates are made under Section 12 can be made in Form 11, then the Magistrate should fix the date of hearing not beyond three days of the receipt of the application, and the case should be disposed off within 60 days from the date of its first hearing. Section 13 specifies that the notice of hearing should be given to the Protection Officer to serve on the respondents within two days and that the official should file a declaration for the service of the notice. Section 14 states that the Magistrate may direct either party to undergo counselling whereas Section 15 clarifies that the Magistrate may use the service of a welfare expert-preferably a female- to assist him/her. Section 16 specifies that proceedings may be held in camera. Section 17 speaks about the right of a woman to residing in the shared household.

The most important essence of this enactment is Section 36 that the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. 

The major problems faced with the implementation of this Act are the lack of coordination between the Victim, Protection Officer and Courts, the criminal violation of the protection orders and custody orders passed by the Hon’ble Courts, the filing of domestic violence complaint has led to increase in the filing of divorce cases, the Protection officers are often overloaded with work and thus fail to do justice and none of the Courts has been able to achieve the provision of a timeline of 60 days for the passing of orders thus creating delays injustice. Further, it has been observed that the hearing of the Interim Application itself is delayed for more than 2 years as cases are adjourned on frivolous grounds. Also, the fact that many people still question the need for this Act and perceive this Act as “anti-men.” This has unfortunately created an “us” versus “them” group and branding each case as not genuine questioning its credibility, thus leading to major hindrance in the implementation of this Act. On a definite note, the Act is not anti-men because a look at the historical background shows that there was the dire need of such law for the protection of woman from violence. The fact that a Law is being highly misused should not make one question the origin or need of the very existence of such a law. What is required is to check upon those loopholes and bring about suitable amendments. To completely brand an Act as a tool to use against a community and means to gain equality in the society is wrong and absurd.  Further, this law is well within the Constitutional framework and Article 15(4) gives power to the State to make law and special provision for woman and children, and thus the Act does not violate Article 14 of the Indian Constitution. 

Some of the landmark judgments passed under this Act are as follow:- 

  1. S.R. Batra vs. Smt. Taruna Batra (Order dated 15th December 2006) the Hon’ble Supreme Court dealt with the definition of Shared household.

  2. Anthony Jose v. State of NCT, Delhi & Others, (Order dated 5th December 2008) the Hon’ble Court dealt with the question on quashing of a complaint under Section 12 of Domestic Violence Act.

  3. Ajay Kumar Jain v. Baljit Kaur Jain, (Order dated 21st May 2009) the Hon’ble Court dealt with the provision for Alternate Accommodation under Section 19 of Domestic Violence Act. 

  4. V.D.   Bhanot   Vs.   Savita   Bhanot, (7th February 2012) the Hon’ble Supreme Court was of the view that the Domestic violence Act has a retrospective application.

  5. Ashish Dixit vs. State of UP and Another, (Order dated 7th January 2013) the Supreme Court has held that a wife cannot implicate one and all in a Domestic violence case.

  6. Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari, (Order dated 12th October 2017) the Hon’ble Bombay High Court elaborated on the Right of Women to Reside in her Matrimonial Home or shared household. 

  7. Lalita Toppo vs. the State of Jharkhand and Another, (Order dated 30th October 2018) the Hon’ble Supreme Court held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.

  8. Binita Dass vs Uttam Kumar, (Order dated 9th August 2019) the Hon’ble Delhi High Court held that Magistrate cannot deny interim maintenance to a wife only because she has earning capacity or is a qualified person. 

  9. Kamlesh Devi vs Jaipal and Others, (Order dated 4th October 2019) the Hon’ble Supreme Court held that a mere vague allegation is not sufficient to bring the case within the Domestic Violence Act.

  10. P. Rajkumar & Anr. Vs. Yoga @ Yogalaxmi, (Order dated 23rd October 2019) the Supreme Court Proceedings under Domestic Violence under Act and Section 125 Cr.P.C are independent proceedings.