The Protection of Women from Domestic Violence Act, 2005 | Criminal Law for Judiciary Exams PDF Download

Understanding Domestic Violence in Indian Society

• Domestic violence is unfortunately a prevalent issue in Indian society, particularly due to entrenched patriarchal norms.
• Women often bear the brunt of domestic violence, stemming from gender stereotypes and power imbalances.
• Men are often perceived as stronger and more powerful, leading to control over women and justifying abusive behavior.
• Women are expected to endure violence silently, perpetuating a cycle of abuse.

Introduction of the Protection of Women from Domestic Violence Act

• The Protection of Women from Domestic Violence Act, enacted in 2005, aims to address and prevent domestic violence against women.
• It signifies a significant step towards protecting women within the domestic sphere and challenges the public/private legal divide.
• Unlike previous legal provisions under the Indian Penal Code, this Act provides a broader scope in defining and addressing domestic violence.
• It recognizes various forms of domestic violence beyond cruelty towards married women, offering protection to all victims irrespective of gender.

Significance and Scope of the Domestic Violence Act

• The Act allows victims, including dependent women and children, to seek legal recourse without having to leave their homes for safety.
• Previously, victims, including wives, faced challenges in approaching the courts under existing legal provisions, often leading to further violence.
• By formalizing the definition of domestic violence, the Act empowers victims to raise their voices against abuse while remaining in their homes.

Domestic Violence Act 2005

• The Protection of Women from Domestic Violence Act 2005 was enforced in October 2006 by the Indian government.
• It was designed to provide a legal framework to combat domestic violence and protect the rights of women.
• The Act's definition of domestic violence has been crucial in numerous court cases, ensuring a more comprehensive approach to addressing such cases.

Domestic Violence Act

• A system established to address civil and criminal cases of violent actions within relationships, specifically targeting individuals who commit acts of violence against their partners or loved ones.
• Constitutional Perspective: The Domestic Violence Act was enacted by the Parliament under Article 253 of the Constitution, granting the Parliament the authority to create laws based on international treaties and conventions. This act was formulated following recommendations from the United Nations Committee on the CEDAW, encompassing provisions outlined in General Recommendation no. 19, 1992.
• Review of Important Provisions: The Act introduces a broad definition of "domestic violence," including various forms of abuse such as physical, mental, verbal, emotional, sexual, and economic abuse. It also covers harassment for dowry, threats of abuse, and other related acts. Notably, the Act addresses issues like sexual abuse, including marital rape, which was previously not adequately addressed. Furthermore, it provides for compensation related to domestic violence and maintenance akin to Section 125 of the Code of Criminal Procedure.
• Protection of Women and Fundamental Rights: The Act aims to safeguard women's fundamental rights guaranteed under Articles 14, 15, and 21 of the Constitution. Article 21, which protects the right to life and liberty, has been interpreted to encompass protection from violence. Judicial decisions have emphasized that any action causing harm or interference with a person's physical or mental well-being falls within the purview of Article 21.
• The Right to Protection Against Physical Abuse: Defined physical abuse as actions that cause bodily pain, harm, or endanger the life, limb, or health of the victim. This type of abuse also includes acts of physical violence outlined in the Indian Penal Code, ensuring protection for women against violence.
• The Right to Dignity: The Supreme Court, in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, highlighted that the right to life incorporates the right to live with dignity. This encompasses protection against humiliating sexual acts and insults. Emotional abuse and sexual abuse within marriage are recognized as forms of domestic violence, safeguarding individuals' rights.
• The Right to Shelter: In the case of Chameli Singh v. State of U.P., it was established that the right to life includes the right to shelter. Sections 6 and 17 of the Domestic Violence Act further reinforce this right by ensuring that aggrieved parties have access to accommodation and can remain in shared households without the fear of eviction.
• Article 14 - Equal Protection Clause: Article 14 of the Constitution upholds equality before the law and the equal protection of laws. It prohibits class legislation but allows for classification for legislative purposes. Laws can be deemed valid under Article 14 if they are based on intelligible differentia and have a rational nexus to their objective. Arbitrary laws are considered unconstitutional under this provision, aiming to prevent misuse of state power.

Article 15 and Domestic Violence Act

• Article 15 prohibits discrimination based on religion, caste, sex, race, etc.
• Allows special provisions for certain groups like women and children
• The Domestic Violence Act safeguards women's rights under Articles 14 and 15
• Defines domestic violence and aims to protect women from it
• Legislation empowers the State to make laws for the benefit of women

Definition of Domestic Violence

• Domestic violence encompasses various forms of assault
• Victim's personal liberties are impeded through violence or belittlement
• Includes actions that lead to harm or force the victim to lead an immoral life
• Excludes reasonable actions taken for protection

Purpose of the Domestic Violence Act

• Provides protection to wives, female live-in partners, widows, mothers, and sisters
• Extends protection against physical, sexual, economic, verbal, and emotional abuse
• Economic Domestic Abuse: As per the Domestic Abuse Act, economic domestic abuse encompasses any form of harassment through illicit dowry demands towards a woman or her relatives.
• Goal of Domestic Violence Act: One of the primary objectives of the Domestic Violence Act is to ensure a woman's entitlement to secure housing. This act guarantees a woman's right to reside in a shared household, regardless of her legal ownership or rights to the property. This right is enforced through a residence order issued by a coordinating court under the Domestic Violence Act.

Scope of the Act

The extent of this legislation has been elucidated in numerous judgments by the High Courts and the Supreme Court in India. For instance, in a recent ruling by the High Court of Gujarat in the case of BhartibenBipinbhaiTamboli v. State of Gujrat and ors, 2018 (1) Crimes 11 (Guj), the court extensively deliberated on the provisions of the Domestic Violence Act and highlighted:

• Prevalence of Domestic Violence: Domestic violence is widespread in the country, with numerous women experiencing some form of violence almost daily. Despite its common occurrence, it remains an underreported form of cruelty. Women often endure ongoing violence and discrimination in various roles throughout their lives.
• Challenges Faced by Women: Many cases of domestic violence go unreported due to societal stigmas and women's own attitudes. The societal expectation of female subservience contributes to this underreporting. Historically, victims had limited legal recourse until the enactment of the Domestic Violence Act in 2005.
• Objectives of the Act: The primary aim of the Domestic Violence Act is to safeguard women from violence inflicted by either a man or a woman. This progressive legislation seeks to protect women regardless of their relationship with the perpetrator. The Act's definition of an aggrieved person is broad, encompassing even women in live-in relationships.
• Filing a Complaint: Under Section 2(a) of the Domestic Violence Act, an "aggrieved person" is defined as any woman who is or was in a domestic relationship with the respondent and alleges to have been a victim of domestic violence. This definition extends to women in live-in relationships with their partners.

Scope of the Domestic Violence Act

• The Domestic Violence Act safeguards not only women who are currently or previously in a relationship with the abuser but also includes women who have shared a household and are related through kinship, marriage, or similar relationships.
• Women like sisters, widows, mothers, single women, or those in any other relation with the abuser are protected under the Domestic Violence Act.

Definition of Shared Household

• A shared household, as defined in the Domestic Violence Act, refers to a place where the affected person resides or has resided in a domestic relationship with the respondent. This includes jointly owned or rented homes where either or both parties have rights or interests.
• Even properties belonging to joint families, regardless of ownership by the respondent or the affected person, can be considered shared households.

Interpretation of Shared Household

• In the case of S.R. Batra & Another Vs. Smt. Taruna Batra, the Supreme Court clarified that a shared household pertains to a residence owned or rented by the husband or a joint family property of which the husband is a member.
• The court emphasized that under Section 17(1) of the Act, the wife is entitled to claim residence rights only in a shared household meeting the specified criteria.

Protection for Women in Live-in Relationships

• The Supreme Court expanded the definition of an "aggrieved person" in live-in relationships in the D.Veluswamy v. D.Patchaiammal case, outlining criteria for such relationships, such as mutual recognition as spouses, legal age eligibility for marriage, and absence of existing spouses.

Relationship in the Nature of Marriage

• Not all live-in relationships qualify under the Domestic Violence Act. Conditions must be met and proven with evidence.

Status of a 'Keep'

• If a man financially supports a 'keep' primarily for sexual purposes or as a servant, it does not constitute a marriage-like relationship.
• The term "palimony" was coined in the case of Marvin Vs. Marvin (1976) for granting maintenance to a woman deserted after a long period of cohabitation.

Complaint Filing under Domestic Violence Act

• Section 2(q) defines "respondent" as an adult male in a domestic relationship with the aggrieved person, against whom relief is sought.
• An aggrieved wife or female in a marriage-like relationship can also file a complaint against the husband's male relatives.
• The Supreme Court clarified that complaints can be filed not only against adult males but also against their female relatives.

Restrictions on Filing Complaints

• The Domestic Violence Act, while beneficial, has been misused, with complaints filed against multiple family members without evidence of wrongdoing.
• The Supreme Court ruled that a wife cannot indiscriminately involve all family members in a domestic violence case without valid grounds.

Types of abuse under the Domestic Violence Act

• Physical Abuse: Physical abuse involves the use of force causing bodily harm or injury to a woman. It includes actions like beating, kicking, punching, criminal intimidation, and forceful actions such as damaging property or using weapons.
• Sexual Abuse: This form of abuse includes any non-consensual or degrading sexual activities, using objects or weapons to hurt a woman during sex, and other forms of sexual coercion.
• Verbal and Emotional Abuse: Emotional abuse encompasses verbal assaults like yelling, name-calling, and shaming. It also includes behaviors like isolation, intimidation, and controlling actions.
• Economic Abuse: Economic abuse involves depriving a woman of financial resources needed for sustenance, including money for essentials like food, clothing, and medicines. It can also involve restricting her from employment or access to shared household resources.

Duty of Courts while deciding cases under the Domestic Violence Act

• Courts have a responsibility to carefully consider complaints under the Domestic Violence Act. In the case of Krishna Bhatacharjee vs. Sarathi Choudhury, the Apex Court emphasized the importance of this duty.
• When a respondent presents a plea to counter an aggrieved person's complaint, the Court must thoroughly examine the facts from all perspectives to ensure its legal validity.
• The Court is obligated to uphold justice, a principle likened to the essence of the ocean, emphasizing that justice must prevail.
• Prior to dismissing a petition, it is crucial to ensure that individuals affected by legislation are not left without recourse, especially under laws like the 2005 Act, which safeguards women's constitutional rights and protects them from domestic violence.

Husband's Responsibility under the Domestic Violence Act

• A Supreme Court case highlighted the husband's personal responsibility to maintain his wife under the Domestic Violence Act, coupled with the Hindu Adoption and Maintenance Act, 1956.
• The husband's mother-in-law's property cannot be seized to fulfill his obligation to maintain his wife, nor can his personal liability be enforced against such property during his lifetime.

Application Process to the Magistrate

• An application for domestic violence relief can be filed with the magistrate by the aggrieved person, the protection officer on the aggrieved person's behalf, or any other authorized individual.

Jurisdiction of the Court

• The competent court for domestic violence cases is the first-class magistrate court or metropolitan court where either the aggrieved person or the respondent resides, conducts business, or is employed, or where the cause of action occurs.
• Orders issued under this Act are valid nationwide. Magistrates consider domestic incident reports when making decisions and can grant various reliefs, such as compensation or damages.
• When a magistrate finds indication of domestic violence, they can issue ex parte interim orders.
• Types of orders magistrate can issue: Protection order, residence order, monetary relief, custody order, compensatory orders.
• If there's a prior compensation decree, the amount paid will be adjusted under this act.
• Application to magistrate should align with formats under the Act and Rules.
• Magistrate must schedule the first hearing within 3 days and aim to resolve within 60 days.
• Notice of hearing date given to protection officer who informs the respondent.
• Magistrate may order counseling for the respondent or aggrieved person and may seek assistance for court functions.
• Proceedings can be conducted on camera if circumstances warrant.

Case Law: Nasir Khan son of Shri Hazi Hasan Raja v. SmtRizwana Sheikh

• In this case, the Rajasthan High Court ruled that victims of domestic violence can seek reliefs under the Act of 2005 without being forced to approach the Family Court.

Different Magistrate Issued Orders

Protection Orders

After hearing both parties, magistrate can issue protection orders if domestic violence is evident or likely.

• Prohibits respondent from committing acts of domestic violence or aiding/abetting such acts.
• Bans entry into the aggrieved person's workplace or child's school.
• Restricts communication attempts in any form.
• Prevents alienation of assets, bank accounts, or lockers jointly or solely held by the respondent.
• Causing harm to family members, relatives, or anyone aiding the aggrieved person
• Engaging in acts specified by the protection officer

Residence Orders

• The magistrate, upon confirming domestic violence, can issue residence orders that include:
  • Restraining the respondent from disturbing the peaceful possession of the shared household
  • Directing the respondent to vacate the shared household
  • Prohibiting the respondent or their relatives from entering the shared household where the aggrieved person resides
  • Preventing the respondent from selling or encumbering the shared household
  • Prohibiting the respondent from giving up their rights in the shared household
  • Instructing the respondent to provide equivalent alternate accommodation or pay rent for the same
• No orders can be issued against women under this section. The magistrate can impose additional conditions to safeguard the aggrieved person and her child.
• The magistrate can direct the police to provide protection to the aggrieved person and enforce the orders. Additionally, the respondent may be directed to return any property or valuable security rightfully belonging to the aggrieved person.

Monetary Relief

• The magistrate may order the respondent to provide financial support to cover expenses resulting from domestic violence, such as:
  • Loss of earnings
  • Medical expenses
  • Damages to property
  • Maintenance for the aggrieved person and her children, which can be in addition to maintenance ordered under other laws
• The amount of relief should be fair and in line with the aggrieved person's standard of living. The magistrate can order a lump sum payment. In case of non-compliance by the respondent, the magistrate can direct the employer or debtor to make payments on their behalf.
• Magistrates can order employers or debtors to pay the aggrieved person if the respondent fails to comply.
• Temporary custody of children can be granted to the aggrieved person, with visitation arrangements specified.
• Magistrates may direct the respondent to compensate the petitioner for injuries, including mental and emotional distress.

Copies of Orders

• Orders passed by the magistrate must be provided free of cost to the concerned parties, police officers, and service providers.

Seeking Relief

• Relief under the Act can be sought in civil, family, or criminal courts in addition to other legal proceedings.

Penalty for Breach

• Breaching a protection order can lead to imprisonment or a fine under the DV Act.
• The trial for breaching the order is usually conducted by the Magistrate who issued the order.

Retrospective Application

• Even individuals who shared a household before the enactment of the Domestic Violence Act can seek protection under the Act.
• The Domestic Violence Act allows individuals to seek legal recourse for past acts of violence, not just current ones.
• Evaluation of the Act reveals its overall importance despite some shortcomings.
  • The Act is beneficial as it addresses domestic violence irrespective of the parties' religious backgrounds, ensuring protection for all women.
  • It also touches on child sexual abuse, although its coverage of male children is limited.
  • Recommendations suggest extending the Act's provisions to include male children to address this gap.
  • Article 15(3) safeguards the Act from being deemed discriminatory, providing a basis for potential extensions to male children.
  • Assessing the Act's impact on beneficiaries and society requires evaluating its practical implementation by both the legislature and the executive branch.

Evaluation

• Overall, the Act is considered a valuable piece of legislation despite its shortcomings, as its potential benefits for women outweigh its drawbacks. One positive aspect of the Act is its inclusive approach to addressing domestic violence regardless of the parties' religious affiliations, thereby safeguarding women's rights in a secular manner. Additionally, it addresses child sexual abuse to some extent, although it excludes male children from its scope, a limitation that the authors recommend extending to ensure comprehensive protection for all children affected by domestic violence.
• While acknowledging that the Act is protected from discrimination under Article 15(3), which provides an exception in favor of women and children, the authors argue for the extension of its application to male children, citing logical reasons for such inclusion.
• However, it is suggested that it is premature to assess the effectiveness of this legislation for its intended beneficiaries and society as a whole. The practical implementation of the Act by the legislature and executive will ultimately determine its efficacy.