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The prevention of domestic violence law explained
November 01, 2006
This year's monsoon session of Parliament was marked by the passage of the Protection of Women from Domestic Violence Act 2005 � hailed as the first significant attempt to recognise domestic abuse as a punishable offence, to extend its provisions to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse. In perhaps the first case under the Act, the Tamil Nadu police last week arrested a man following complaints of harassment from his wife.
What is this law all about? Will it prevent incidents of violence against women? Sheela Bhatt demystifies the provisions of Protection of Women from Domestic Violence Act 2005.
Why do we need a new law for domestic violence?
Of all forms of criminal behaviour, domestic violence is among the most prevalent � and among the least reported.
One reason for this anomaly is that till 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser.
And, relationships outside marriage were not recognised.
This set of circumstances ensured that a majority of women preferred to suffer in silence. It is essentially to address these anomalies that the Protection of Women From Domestic Violence Act 2005 was passed.
Who are the primary beneficiaries of this Act?
Women and children. Section 2(a) of the Act will help any woman who is or has been in a domestic relationship with the 'respondent' in the case.
It empowers women to file a case against a person with whom she is having a 'domestic relationship' in a 'shared household', and who has subjected her to 'domestic violence'.
Children are also covered the act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.
Who is defined as 'respondent' by this law?
Section 2 (q) says that any adult male member who has been in a domestic relationship with the aggrieved person is the 'respondent'. The respondent can also be a relative of the husband or male partner � thus, a father-in-law, mother-in-law, or even siblings of the husband and other relatives can be proceeded against.
Do you have to be married to take recourse to this law?
Significantly, the law recognises live-in relationships. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him.
According to section 2(g), any relationship between two persons who live, or have at any point of time lived together in the shared household, is considered a 'domestic relationship'.
This includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family � thus, 'domestic relationships' are not restricted to the marital context alone.
'Domestic relationships' also cover sisters, widows, mothers, daughters, women in relationships of cohabitation, single women etc. Any widow or unmarried sister or daughter who is harassed within the home can also resort to the new law.
The law also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in law.
How does the new law define domestic abuse?
Section 3 of the law says any act/conduct/omission/commission that harms or injures or has the potential to harm or injure will be considered 'domestic violence'.
Under this, the law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of the same.
Even a single act of commission or omission may constitute domestic violence -- in other words, women do not have to suffer a prolonged period of abuse before taking recourse to the law.
The law says any definition of domestic violence must detail the fact that it is a human rights violation. Further, the law details the different forms of violence faced by women, and ensures that such interpretations are not left solely to the discretion of the judges.
How does the law define the various forms of abuse, to forestall such individual interpretation?
Physical Abuse is defined as any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health, or an act that impairs the health or development of the person aggrieved, or that includes assault, criminal intimidation and criminal force.
Sexual Abuse is any conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of the person. The law also covers instances where a woman is forced to have sexual intercourse with her husband against her will.
Verbal and Emotional Abuse has been defined as any insult, ridicule, humiliation, name-calling and such acts. A woman who is insulted and ridiculed for, say, not being able to conceive, or for not having produced a male child, can now take recourse to this law. Any repeated threats to cause physical pain to any person in whom the person aggrieved is interested � in other words, if say the abuser were to threaten the children, or relatives, of the aggrieved party � will also be covered under this head.
Economic Abuse is a very forward-thinking, important part of this definition. The deprivation of economic or financial resources to which the aggrieved woman or child is entitled under law or custom, or which the person aggrieved requires out of necessity, can be claimed under the provisions of this law; withholding such resources now falls under the category of economic abuse. This provision comes into play in instances of marital disputes, where the husband tends to deprive the wife of necessary money as a weapon. The law also sees a husband who sells off his wife's jewellery and assets as being guilty of economic abuse.
A husband, under this provision, cannot dispose of household effects, cannot alienate her from her assets or any other property in which the aggrieved person has an interest or entitlement by virtue of the domestic relationship. A husband may not sell or use stridhan (dowry) and/or any other property jointly or separately held by the wife.
How does the law ensure that a wife who takes legal recourse in the event is not intimidated or harassed?
An important addition to the law ensures that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife's continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.
What are the main rights of a woman as recognised by this law?
The law is so liberal and forward-looking that it recognises a woman's right to reside in the shared household with her husband or a partner even when a dispute is on � thus, it legislates against husbands who throw their wives out of the house when there is a dispute. Such an action by a husband will now be deemed illegal, not merely unethical.
Even if she is a victim of domestic violence, she retains right to live in 'shared homes' � that is, a home or homes she shares with the abusive partner. Section 17 of the law, which gives all married women or female partners in a domestic relationship the right to reside in a home that is known in legal terms as the shared household, applies whether or not she has any right, title or beneficial interest in the same.
The law provides that if an abused woman requires, she has to be provided alternate accommodation � and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner.
The law, significantly, recognises the need of the abused woman for emergency relief, which will have to be provided by the husband. A woman cannot be stopped from making a complaint/application alleging domestic violence. She has the right to the services and assistance of the Protection Officer and Service Providers, arranged under the provisions of the law.
A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.
Sections 18-23 provide a large number of avenues for an abused woman to get relief. She can get, through the courts, Protection Orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation Order and Interim/ Ex parte Orders.
If a husband violates any of the above rights of the aggrieved woman, it will be deemed a punishable offence. Charges under Section 498A can be framed by the magistrate, in addition to the charges under this Act.
Thus, an accused person will be liable to have charges framed under both the old law and the new one. Further, the offences are cognisable and non-bailable. Punishment for violation of the rights enumerated above could extend to one year's imprisonment and/or a maximum fine of Rs 20,000.
How does the law define 'shared household'?
According to Section 2(s), a household where the aggrieved person lives/lived in a domestic relationship, either singly or along with the respondent, is a shared household.
This applies whether the household is owned or tenanted, either jointly by the person aggrieved and the respondent, or by either of them, where either the person aggrieved or the respondent or both jointly or singly have any right, title, interest or equity.
Shared household also includes a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or person aggrieved has any right, title or interest in the shared household.
However, the ownership pattern of the household cannot be affected by the Act � in other words, the fact that a woman lives in a home legally owned by her husband does not under the Act alter the legality of ownership; it does not for instance transfer that ownership in whole or part to the wife.
What new mechanisms have been recommended to implement the law?
Section 8 of the law provides for the setting up and function of Protection Officers.
These officers, to be appointed by state governments, will be under the jurisdiction and control of the court, and will be responsible to the court for monitoring the cases of domestic abuse.
The PO will assist the court in making a Domestic Incident Report or an application for a protection order on behalf of the aggrieved woman and/or child. POs will ensure that aggrieved people are provided legal aid, medical services, safe shelter and other required assistance.
POs will ensure that necessary information on service providers is provided to the aggrieved woman, and that orders for monetary relief are complied with.
Importantly, the PO can be penalised for failing/refusing to discharge his duty, with the proviso that prior sanction of the state government is required.
Service Providers are a vital tool in the implementation of this act. Service Providers, as defined by the law, are private organisations recognised under the Companies Act/Societies Registration Act.
They will have to register with the state government as a service provider to record the Domestic Incident Report and to get the aggrieved person medically examined.
The Service Providers will among other things ensure that the aggrieved person is provided accommodation in a shelter home, if she so requires. A Service Provider is protected for all actions done in good faith, in the exercise of the powers under this Act, towards the prevention of commission of domestic violence � they are, thus, protected by law and cannot be sued for the proper exercise of their functions.
The new law, thus, recognises the role of voluntary organisations in addressing the issue of domestic violence. NGOs working for women's rights can now register as Service Providers under the Act.
What happens next?
The government has passed the law; it now needs to put in place the mechanism of implementation. To this end, the government has to provide funding to encourage the registration of Service Providers who will need the protections of this new law.
The government will also have to initiate a widespread campaign for public awareness. It will also need to implement training programs to sensitise the police, media and judiciary to the dimensions, scope and functioning of this new law.
Read also: Full Text of the Act
Facts and data courtesy: Lawyers Collective and senior lawyer Indira Jaisingh
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