What is Domestic Violence?
The definition of domestic violence is well written and wide-ranging and holistic. Domestic Violence covers, mental as well as physical abuse, and also threats to do the same. Domestic violence under the Protection Of Women From Domestic Violence Act 2005 includes any kind of physical, sexual, emotional, or economic abuse against a woman which causes any sort of mental or physical damage to a woman. The demand for dowry by any in-laws constitutes Domestic Violence as per section 3 of the Domestic Violence Act, 2005.
The definitions of Physical, Sexual, Emotional, and Economic abuse are explained below:
Physical abuse means any act or conduct which is of such a nature as to cause bodily injury, harm, or danger to life, limb or health or impair the health or development of the aggrieved person’. Physical abuse also includes assault, criminal intimidation, and criminal force. For eg- slapping, beating, kicking, etc.
The legislation defines this as the conduct of “sexual nature” which means any sexual conduct which abuses, humiliates, degrades, or violates the dignity of a woman would be sexual violence. For eg-, forcing a woman to watch pornography, forcing the woman to have sexual intercourse when she is not in a state to, etc.
Many women suffer from emotional abuse, which is no less destructive. Unfortunately, emotional abuse is often minimized or overlooked even by the woman being abused. Verbal and emotional abuse includes insulting/ ridicule/humiliation of any form, threatening her about physical abuse; for example name-calling, or taunting a woman about not having children/not having a male child, as well as repeated threats, etc
Economic Abuse- :
Not providing financial support required for the survival of the victim and her children. Not maintaining the woman or depriving to financial resources to which the victim is entitled under any law or custom whether payable under an order of a court or otherwise such as stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
Not returning the woman’s stridhan , etc. disposal of household effects, any alienation of assets /property 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
Prohibit or restrict the victim from accessing the resources or facilities which the victim is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Usually, Domestic Violence includes multiple types of abuses. Anything which causes mental or physical harassment to a woman in her house will come under domestic violence.
Even threatening to hurt the victim or her family members is domestic violence.
Who is a Victim or Aggrieved Person?
Victim or Aggrieved Person includes any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to domestic violence.
Definitions.—In this Act, unless the context otherwise requires,—
Section 2 (a) “aggrieved person” means 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;
What components are necessary to comprise domestic violence?
The following components are necessary to comprise domestic violence:
a. The victim should be or have been in a domestic relationship with respondent harasser at any point of time.
Domestic Relationship as per Section 2(f), Domestic Violence Act means any relationship between two persons who has lived together in a shared household and these people are:
- related by consanguinity (blood relations)
- related by marriage.
- Though a relationship in the nature of marriage (which would include live-in relationships)
- Through adoption
- Are family members living in a joint family.
b. The victim should have lived in a shared household with her respondent harasser at any point of time.
* Shared Household means any house shared by the victim with her respondent harasser.
Who is a Respondent or harasser?
The definition of “respondent” includes any adult male who has been or is in a domestic relationship with the aggrieved woman, and against whom the woman has sought a relief or any male or female relative of the husband or male partner of a married woman or a woman in a relationship in the nature of marriage.
Which Law protects the rights of the Aggrieved Person or victim of domestic violence in India?
Protection of Women from Domestic Violence Act, 2005, popularly called as Domestic Violence Law or DV provides variety of rights to women victim of Domestic Violence. Such rights include claim of monetary relief, rights to residence, compensation for domestic violence, protection order, and child custody amongst other reliefs.
Objective of Domestic Violence Act 2005?
Domestic violence has come in to force with objective of providing economic justice and independence to women victim of domestic violence. Domestic violence Act has come into force with objective of expeditious disposal of the claim of women who are victim of domestic violence.
Who all are protected under Domestic Violence Act?
The Domestic Violence Act protects every single woman in India, irrespective of religion, marital status, or age.
Key Point: The Act not only protects domestic violence to married women but also protects domestic violence against any woman under all circumstances:
- From husband
- From husband’s family members or relatives
- From a woman’s own family members or relatives
- From adoptive parents/family
- From a live-in partner
What Rights does the Domestic Violence Act provides to the aggrieved person/victim?
The Domestic Violence Act helps victim have a life free from any kind of violence or abuse at home. A victim is entitled to the following rights under the Domestic Violence Act:
Section 17 of the DV Act provide right to stay in her house/ Right to reside in the shared household : Every victim has the right to live in the house which she shares with her family/husband/husband’s family. No one can ask the victim to leave the house or stop her from living there.
Section 17 states that : -
(1) Notwithstanding anything contained in any other law for the time being in force, 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.
(2) 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.
Section 18 of the DV Act provide right to protection against domestic violence: If the victim has suffered from domestic violence or feels threatened about domestic violence, she can get a protection order from the Magistrate.
Section 18 states that - The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, 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.
Section 19 of the DV Act provide Residence orders be issued against the respondent as to whether or not he may stay.
Section 19 states that -:
(1) While disposing of an application under sub section (1) of section 12, 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;
(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 of 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: Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may 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.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), 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.
(6) While making an order under sub-section (1), 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.
(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) 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.
Section 20 of the DV Act provide right to monetary relief: The victim can ask the Magistrate for monetary relief to meet her expenses and cover for any loss incurred by her. She also has the right to take all her valuables, jewellery, stridhan, etc
Section 20 states that -:
(1) While disposing of an application under sub-section (1) of section 12, 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 is 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.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
Section 21 of the DV Act provide right to the custody of children: The victim can seek custody of her child/children at any time from the Magistrate. Full custody of children may be given to the victim with visiting hours for the respondent husband.
Section 21 states that -:
Notwithstanding anything contained in any other law for the time being in force, 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.
Section 22 of the DV Act provide right for compensation:
Section 22 states that:
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.
What remedies can you avail of?
- Inform the Protection Officer
- File an application and make use of government official’s duties towards her
- Make use of shelter homes, medical facilities, and counseling if necessary.
Who can file a complaint against act of domestic violence?
Anyone can file a complaint against domestic violence:
a. The victim who has been harassed
b. Anyone else on her behalf, like her family members, relatives, neighbors, or any NGO, etc.
Against whom can the complaint be filed under the Domestic Violence Act?
Under Domestic Violence Act a domestic violence complaint can be filed against anyone who harasses the victim. This can include:
- Husband’s family members- father-in-law, mother-in-law, brother-in-law, sister-in-law, wife of brother in law, husband of sister in law.
- Victims own family members
- Adoptive family
- Live-in partner
The ingredients for domestic violence(i.e. domestic relationship and shared household) must exist.
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 give information about it to the concerned Protection Officer. The Protection Officers are generally women.
The Domestic Violence Act, 2005 also ahs the provision for Service Providers. A Service provider does have the power to-
- Record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;
- Get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place;
- Ensure that the aggrieved person is provided shelter in a shelter home if she so requires and forwards a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.
- Any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance can register itself with the State Government as a service provider.
How to file a Case in the Court
An 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 reliefs under this Act. The aggrieved person may seek following reliefs:-
- Orders for the payment of compensation or damages.
- A residence order, seeking to reside in a shared household.
- Restraint Orders against the Respondent, restraining him from selling the shared household during the pendency of the case before the Magistrate.
- Restraint Orders against the Respondent, restraining him 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.
- Restraint Orders against the Respondent, restraining him from entering the aggrieved person’s place of employment or disturbing the aggrieved person by telephoning or texting, etc.
Which Court can decide the case
Section 27 of the DV Act provides that a first-class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offenses under the Act within the local limits of which
- the person aggrieved permanently or temporarily resides or carries on business or is employed; or
- the respondent resides or carries on business or is employed; or
- the cause of action has arisen.
In a recent decision, the Supreme Court held that petition under DV Act can be filed in a court where a “person aggrieved” permanently or temporarily resides or carries on business or is employed, Shyamlal Devda v. Parimala, (2020) 3 SCC 14.