Domestic violence in India is not a hidden secret, it is rampant in India as Indian society is a patriarchal society and where women are subverted by the male dominated society. In the recent times of COVID-19 pandemic where economic, social, political, professional positions are at stake and facing huge problems. In this time the mostly hit area is the women community. The crime of domestic violence suddenly ramped up after the announcement of lockdown not only in India but all over the world. In India, The Protection of Women from Domestic Violence Act, 2005 commonly known as Domestic Violence Act deals with the rights of women who are victim of domestic abuse.
What is domestic Violence?
The term domestic violence includes all forms of actual abuse or threat of abuse of physical, mental, sexual, verbal, emotional and economic nature that can cause harm, injury or endanger the health, safety, life, limb or well being of the aggrieved person. Unlawful demand of dowry from woman and her relatives also comes under the ambit of domestic violence.
According to National Family Health Survey IV 2015-16, 31.1% married women aged 15-49 years experienced spousal violence at least once in their lives. According to a survey 27 % women have experienced physical violence since the age of 15 in India. Total 133154 cases of domestic violence have been reported in India in 2016.
During COVID-19 related lockdown, Indian women filed more complaint of domestic violence. Between the period of 25th March to 31st May, 2020, 3, 11,477 complaints of domestic violence were made by women. The national lockdown has reported more than 50% rise in domestic violence cases.
Who can file a complaint?
One of the best feature of the Domestic Violence Act is that it recognizes all women who live with the abuser in a shared household not restricting to married relationship but includes other women residing in the shared household that are sisters, mothers, single women or living in any other relationship with the abuser are entitled to protection under this Act.
The Act includes every relation which a woman a shares with the abuser. Thus even women like sisters, mothers, widow, single women or living in any other relation with the abuser are entitled to protection under this Act.
As per Section 4 of the Act any person who has a reason to believe that an act of domestic violence has been or is likely to be committed may give information to the concerned protection officer regarding such violence. Therefore parents, brothers/sister, relatives or friends of the victim can also give an application to the concerned officer.
Against whom complaint can be filed?
Section (2) (q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner
Thus a adult person who is a abuser living in a domestic relation with the women can be made accused under the domestic violence act
Are female relative out of ambit of this Act?
Though the act does not mention females in the definition of respondent but Supreme Court in its judgment in Sandhya Wankhede vs Manoj Bhimrao Wankhede has made it clear that Section 2 (q) includes female relatives of the male adult also, thus a complaint can also be file under this act if female relative of the male adult is the abuser.
Can wife implicate all the members of the family?
Though Domestic Violence Act is a progressive legislation but it can be seen that sometimes women have misused the Act for erroneous reasons which has also cast doubt on genuine complainants by women.
In the case Ashish dixit vs State of UP & Anr, the women in her complaint had included even those parties who she didn’t know by name. Therefore the Supreme Court in its judgment had held that wife cannot implicate any person related to the male adult.
Thus complaint against those relatives who are not party to the crime/abuse will not be tenable.
What are the various types of abuse?
The Act defines various types of abuses which constitute the domestic violence, these are:-
- Verbal and emotional
Let us now see what constitutes as abuse under the above mentioned heads:
- Physical abuse
Physical abuse would mean the use of physical force which would cause her bodily harm. Physical abuse includes criminal intimidation or assault. Generally we consider physical abuse as somebody beating, kicking, punching, slapping, pushing, pulling hair and body parts, hitting with an object. But acts such as abuser resorting to kicking doors, threatening her with an object or weapon, threatens or actually hurts her children, deserts her in an unknown or a dangerous place, forces her to leave her matrimonial home would also amount to physical abuse.
- Sexual abuse
Any act of the abuser which coerces the women to have unwanted or even unsafe sexual activity, any such sexual activity which women is not comfortable with or is disrespectful to her dignity, or calling her names which have sexual orientation, hurting her genitals or touching her inappropriately would amount to sexual abuse.
Though marital rape is an exception under Indian Penal Code section 375 but under domestic violence act, women can seek help for such injustices under this Act. A protection order can be sought from the court.
- Verbal and emotional abuse
As Indian women have always been subverted by men hence name calling, criticizing her, taunting and humiliation has been a part and parcel of her life. This is perhaps a type of abuse which most of the women have faced in their life and they consider it as a part of their destiny which sometime times lead irreparable harm to the victims psyche.
The Act has defined that if the abuser indulges in insults, ridicule, humiliation, name calling, ridiculing her for not having children especially with regard to male child, threatens the women with causing physical pain to any person who she is interested in or criticizing her constantly are all forms of verbal and emotional abuse.
- Economic abuse
This would perhaps be an abuse which women wouldn’t have thought it as an abuse but domestic violence act clearly defines what would constitute as economic abuse
It includes depriving a women of financial resources which she is entitled to under any law or custom whether it is payable under an order of a court or otherwise which the women requires out of necessity but money required by her would not be limited to household necessity, it will include money which she will require to fulfill her necessity like clothing, medicines etc.
Disposing or alienating any property owned by the aggrieved person whether it is jointly owned or separately owned including istridhan property, valuable, shares, bonds. Prohibiting or restricting use of resources/money or facilities which the women is entitled to use would constitute economic abuse.
What is the Procedure to file a domestic violence case?
- A victim of domestic violence or a witness of such incident can register a complaint with local protection officer, or local police officer, or service provider (NGO working for the rights and protection of women) or with magistrate.
- The aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the magistrate seeking one or more relief mentioned in the act.
- After receiving the application the magistrate will fix a date for hearing which shall not be ordinarily beyond three days from the date of receipt of application.
- The magistrate shall endeavor to dispose of the application within sixty days.
- The magistrate may at any stage of the case direct the aggrieved person or the respondent to go for counseling, singly or jointly.
What are Reliefs/benefits under the Act?
Counseling – The magistrate may direct the parties to undergo counseling with a member of a service provider (NGO) singly or jointly. Sometimes counseling can be a solution as trained counselor can make the abuser realize his mistakes and the abuser mend his way.
Right to reside in a shared household – Every women in a domestic relation shall have the right to reside in a household whether that house belongs to her or not, she has any title of that property or not. The abuser cannot evict the aggrieved person from the household.
Protection orders – If after hearing both parties the magistrate is satisfied that domestic violence has taken place or is likely to take place then the magistrate may pass a protection order in favor of the aggrieved person and prohibit the abuser from committing any act of violence, entering the place the place of her employment, attempt to communicate through any means etc. The magistrate may direct officer in charge of the local police station with implementation of the protection orders.
Residency orders – The magistrate may pass residency order in the following ways:-
- Restraining the abuser from dispossessing or disturbing the possession of the aggrieved person from the shared household
- Directing the abuser to remove himself from the shared household
- Restraining the abuser or his relatives from entering any portion of the household in which the woman resides
- Restraining the abuser from alienating or disposing off the shared household or causing hindrance
- Directing the abuser to arrange same type of accommodation for the victim as enjoyed by her in the shared household
- Pay rent for the accommodation provided to the aggrieved victim
- Preventing the abuser from renouncing his rights in a shared household except with the permission of the magistrate
- The magistrate may direct the abuser to return back property or istridhan property back to the aggrieved person which belonged to her.
Monetary relief – The magistrate may pass orders to provide monetary relief to the aggrieved person in following ways:-
- Directing the abuser to pay money to the victim to meet her expenses and expenses of her child, due to loss suffered because of domestic violence.
- Directing the abuser to provide for maintenance to victim as well as her child even in addition to maintenance she is getting under section 125 of code of criminal procedure, 1973.
- The monetary relief which the victim will get must be adequate and consistent with the standard of living of the victim which she is accustomed to.
- Magistrate can direct the abuser to either pay monthly installments or a lump sum amount.
- If the abuser doesn’t comply with the orders of the magistrate to pay compensation, the magistrate can direct abusers debtor or his employer to directly pay the amount to the victim.
Custody order –In addition to other reliefs granted under this act, magistrate may on an application made by the victim grant temporary custody of the child to the victim. And if the magistrate is of the opinion that visit to the child by the abuser is harmful then magistrate may even refuse these visits.
Compensation orders – In addition to other relief the magistrate, on an application made by the aggrieved person, may direct the abuser to pay compensation to the aggrieved person for injuries caused to her due to domestic violence including mental torture and emotional distress.
Can a victim get ex parte or interim relief under the Act?
Yes the victim can get ex parte or interim relief if the magistrate is satisfied prima facie that an abuse has occurred and then magistrate may pass ex parte orders or provide interim relief to the aggrieved person.
How long does the protection order stay?
A protection order made under Section 18 shall be in force till the victim applies for discharge. On receipt of such application if the magistrate is satisfied that the circumstances have changed and the order should be revoked, he may pass such order with reasons recorded in writing.
What if the abuser violates the protection order?
A breach of such order by the abuser shall be punishable with imprisonment which may extend up to one year or fine which may extend to twenty thousand rupees or both. The breach of such order shall be a cognizable (where police can arrest without warrant) and non-bailable offence. Further, the court will conclude whether the breach has occurred of the protection orders or not on the sole testimony of the aggrieved person
Where victim can file a complaint?
A complaint can be filled at such place:-
- Where the victim resides whether permanently or temporary or carries on business or employment.
- The abuser resides or carries business or is employed.
- Or where the abuse has occurred.
What if the protection officer is not discharging his/her duty?
If any protection officer is not discharging or fails to discharge his duty as directed by the magistrate without giving any sufficient cause of non performance of duty, then protection officer shall be liable to punishment which may extend to one year or fine which may extend to twenty thousand rupees or both.
Is Domestic Violence Act applicable to partners living in live in relationship?
To answer this question first we should look at what the Act says about live in relationships and what is the intent of legislature in framing this Act.
Under Section 2 (f) the act defines domestic relationship as – “domestic relationship” means 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.
By simply reading the definition it is clear that legislature has given domestic relation a wide meaning.
Not restricting the applicability of the act to only married couples. The Act includes those couples also who are not married but living in a relationship in the nature of marriage, including live in relationships. Through this Act Parliament has taken note of the new phenomenon emerging in the country of live in relationship and has provided some degree of protection and relief to women who are in live in relationships.
Before the enactment of this Act, there were other remedies available to women but they were limited and time consuming. Woman either could file a criminal complaint under section 498 A of Indian Penal Code or had to go to the civil court to seek a decree of divorce. Another encumbrance which women faced before the enactment of this Act was that relationship outside marriage did not qualify for protection.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali