Safeguards for Women under the Protection of Women from Domestic Violence Act, 2005

Domestic violence is a major societal concern existing in the public domain and has been a grave hindrance towards the growth of a progressive society. The term domestic violence basically refers to infliction of violence over another person living in the same household. It connotes to the abusive behaviour of a person which can be either physical, sexual, psychological, emotional or economic. Women have been subjected to domestic violence long since and still continues to be victims of such violence occurring within the family. Domestic violence has been one of the widespread crimes against women in India with instances of molestation, marital rape and dowry deaths. Yet, until a decade ago, there was no legal definition of domestic violence, leave alone adequate legal redressal for women facing violence in their homes. This being the legal position, the legislators finally framed a new legislation called the Protection of Women from Domestic Violence Act, 2005.

The law in India prior to the enactment of the Protection of Women from Domestic Violence Act, 2005 provided recourse to women only through the penal provisions under Sections 304 B(dowry death) and 498A(cruelty by husband or his relative) of Indian Penal Code, but there was no civil remedy available to  women subjected to such cruelty. Therefore, the Parliament by enacting the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the Act) has provided a civil remedy to the women from being victims of domestic violence. The Act principally aims at providing protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives. The legislation also extends its protection to women living in a household such as sisters, widows or mothers. The Act also seeks to cover harassment by way of unlawful dowry demands to the woman or her relatives as an instance of domestic violence.

Important terms under the Act:

1. An aggrieved person

2. A respondent

3. Domestic relationship               

4. Shared household

5. Domestic Violence

6. Physical abuse

7. Sexual Abuse

8. Verbal and emotional abuse

9. Economic abuse

Who is an Aggrieved Person?

The Act defines an aggrieved person as:

“Any woman, who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

A complaint invoking the provisions of the Act can be made by any woman who is or has been in a domestic relationship with the abuser by way of consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the aforesaid Act.

Who is a Respondent?

Respondent means any 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 the Protection of Women from Domestic Violence Act, 2005.

The Act of 2005 defines a respondent as “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 the relative of the husband or the male partner]

However the words ‘adult male’ and the proviso to the said definition have been struck down by the Supreme Court in Hiral P. Harsora Vs. Kusum Narottamdas Harsora. The Supreme Court observed that the words “adult male” before the word “person” in the aforementioned definition defeats the very object of the Act which is to protect women who have suffered from violence/abuse of any kind whether physical, sexual, verbal, emotional or economic, inflicted not only by the adult male persons but also female members and non-adults who are in a domestic relationship with the aggrieved person.

Meaning of domestic relationship:

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:

(a)          Consanguinity; or

(b)          Marriage; or

(c)          through a relationship in the nature of marriage; or

(d)          adoption; or

(e)          are family members living together as a joint family.

Domestic relationships thus involves persons belonging to both sexes and includes persons related by blood or marriage. This necessarily brings within such domestic relationships male as well as female in-laws, quite apart from male and female members of a family related by blood.

Relationship in the nature of marriage:

In the case of D. Veluswamy Vs. D. Patchaiammal, the apex court has opined that a “relationship in the nature of marriage” is akin to a common law marriage. Common law marriages require that although not being formally married:

a.         the couple must hold themselves out as being akin to spouses;

b.        they must be of legal age to marry;

c.      they must be otherwise qualified to enter into a legal marriage, including being unmarried;

d.     they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

A “relationship in the nature of marriage” under the 2005 Act must fulfil the above requirements in addition the parties must have lived together in a shared household as defined in the Act. Merely spending weekends together or one night would not make it a domestic relationship. The Court further discussed the concept of live-in relationships and opined that that not all live-in relationships would fall within the meaning of a “relationship in the nature of marriage” to avail the benefit of the 2005 Act. To get such benefit the conditions mentioned above must be satisfied and this has to be proved by the evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purposes/or as a servant, it would not be a “relationship in the nature of marriage”

The Apex Court in a subsequent decision in Indra Sarma Vs. V.K.V Sarma described “relationship in the nature of marriage” as a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognised. The Court further observed that the expression “relationship in the nature of marriage” includes defacto relationship, marriage like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc. The Apex Court in the aforesaid case also culled out certain guidelines for testing under what circumstances a “live-in-relationship” will fall within the expression of a “relationship in the nature of marriage” under the Act.

Meaning of shared household:

Shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

Section 17 0f the Act entitles a woman the right to live in a shared household. It states that every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

What do we mean by Domestic Violence?

Domestic violence constitutes of an act by a respondent, the omission or commission or conduct of which:

a. harms, 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;

OR

c. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clauses (a) and (b) above.

OR

d. otherwise injures or causes harm, whether physical or mental to the aggrieved person.

 

Physical abuse:  

It means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

Sexual Abuse:

It includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

Verbal And Emotional Abuse:

It includes—

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

Economic Abuse:  

It includes—

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

                For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence”, under this Act, the overall facts and circumstances of the case shall be taken into consideration.

 

Reliefs under the Act:

The aggrieved person or the protection officer appointed by the State Government under this Act or any person on behalf of the aggrieved person may file a complaint before a Magistrate seeking one or more reliefs enumerated under the Act. The reliefs envisaged under the Act can be culled down as follows:

 

1. Protection orders

The Magistrate may pass a protection order in favour of the aggrieved person and prohibit the respondent from—

(a) Committing any act of domestic violence;

(b) Aiding or abetting in the commission of acts of domestic violence;

(c) Entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) Attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) Alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) Causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) Committing any other act as specified in the protection order.

 

2. Residence orders

The Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a) Restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) Directing the respondent to remove himself from the shared household. However, no such order shall be passed against any person who is a woman.

(c) Restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) Restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) Restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

In S.R Batra Vs. Taruna Batra, the Supreme Court has opined that the wife’s claim for alternative accommodation can only be made against the husband and not against her in-laws and other relatives of the husband.

The Magistrate may further impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

While passing a residence order as mentioned above, the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

The Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

            The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

 

3. Monetary reliefs

The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to—

(a) The loss of earnings;

(b) The medical expenses;

(c) The loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) The maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

 The monetary relief granted shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

 

4. Custody orders

The Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

 

5. Compensation orders

In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

 

Penalties under the Act:

The Act provides no penal provisions against the abuser/offender/respondent when the complaint is first made but provides a civil remedy in the form of protection order or any other relief order passed by Court. However, in case there is a breach or infringement of protection order or interim protection order by the respondent, then such respondent shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. Such an offence committed under the Act shall be a cognizable and non-bailable offence.

Conclusion:

Thus, the Protection Women from Domestic Violence Act, 2005 which was implemented in October 2006 is an efficacious legislation enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The legislators by formulating the said Act have made a sincere effort to provide adequate redressal and protection to the women who have been victims of domestic violence. The menace of domestic violence is still prevalent in our society and the statute encompasses effective remedies to curb such violence. In spite of such an Act being in force it is seen that plethora of women do not report cases of domestic violence mostly because of social stigma and the approach of women themselves. The objective of the Act can only be fulfilled by increasing awareness amongst the women and it is incumbent to have effective training of the departments responsible for the implementation of the Act otherwise it would be redundant on the part of the lawmakers to have legislated such a statute. Nonetheless, the Act is stipulated for curbing the social hazard against women called “domestic violence” and should thus be used solely as a shield for protection against such violence and not as a tool for satisfying one’s vengeance.

 

 

REFERENCES

1. Protection of Women from Domestic Violence Act, 2005

2. Hiral P. Harsora Vs. Kusum Narottamdas Harsora

3. D. Veluswamy Vs. D. Patchaiammal

4. Indra Sarma Vs. V.K.V Sarma

5. S.R Batra Vs. Taruna Batra