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An Overview of Protection of Women from Domestic Violence Act, 2005

An Overview of Protection of Women from Domestic Violence Act, 2005
A detailed description of the Protection of Women from Domestic Violence Act, 2005

DEFINITION OF DOMESTIC VIOLENCE

“Domestic violence is the front line of the war against women”

-Pearl Cleage

 

When there is a close link between a perpetrator and a victim, the term "domestic violence" is resorted to. It may even be known as domestic abuse, spousal abuse, or intimate partner violence (IPV), it is broadly defined as the use of aggressive behaviours by one or both individuals in a close relationship, including a marriage, dating relationship, family, or a living arrangements. The power imbalance between the aggrieved and the attacker is significant. The victim, in majority scenarios, is reliant on the assailant. Domestic violence entails physical hostility such as hitting, kicking, biting, shoving, manipulating, hurling objects; sexual abuse; mental abuse; domineering or overbearing; terrorising; following; uninvolved/incognito abuse such as contempt; and financial strain. 

TYPES OF DOMESTIC VIOLENCE

  1. Physical Abuse 

Physical abuse is when an individual deliberately causes damage or injury to somebody else by using their body. Victims  of abuse may endure severe repercussions immediately away, right after, or even throughout the remainder of their lives. Some forms of physical violence may include- 

    • Slapping 
    • Kicking 
    • Pinching 
    • Scalding 
    • Suffocating 
    • Biting

Despite the fact that physical violence has the potential to result in significant injury, it is not necessary for the harm to be significant in order for it to qualify as physical violence. For instance, pushing someone away may result in minor to no harm but it would still be deemed physical abuse.

2. Emotional Abuse 

Non-physical actions intended to dominate, exclude, or terrify a person are classified under the category of emotional abuse. It may emerge in relationships in some of the ways listed below-

  • Threats 
  • Insults
  • Constant monitoring,
  • Excessive jealousy
  • Manipulation
  • Humiliation
  • Intimidation
  • Dismissiveness

Sometimes emotional abuse is more blatant, such as when a spouse yells or uses derogatory language. Other times, it may be more covert, such as when a partner exhibits jealousy toward a partner's friends or refuses to allow a partner to spend out with an individual of a different gender. Although these emotional abuse practises do not physically harm the victim, they do demean and traumatise the victim's spouse.

3. Sexual Abuse 

Every behaviour that compels or coerces someone into engaging in sexual activity they do not want to is considered sexual abuse. It may also refer to actions that impact a person's capacity to control their sexual interaction or the setting in which it takes place, such as oral sex, rape, or restricting the availability of birth control and condoms. Here are a few instances of sexual abuse and assault:

  • Non-consensual kissing or touching
  • Non-consensual violent sexual activity.
  • Rape or attempted rape
  • Refusing to use contraceptives
  • Restraining one from taking birth control pills
  • Sexual contact with someone who is very drunk, drugged, unconscious or otherwise unable to give a clear and informed“yes” or “no”
  • Threatening or pressuring someone into unwanted sexual activity

3. Financial Abuse 

Controlling a victim's access to obtain, utilize, and retain financial resources is referred to as financial abuse. Financially abused people might be unable to acquire a job. Furthermore, the abuser might curtail or confiscate one‘s own money. It is the least obvious form of domestic violence. It is simply another form of control. It is very common, especially in families having joint accounts. 

4. Psychological Abuse 

Psychological abuse is the repetitive and deliberate utilization of a range of words and quasi behaviour with the objective of manipulating, hurting, weakening, or unnerving a person mentally and emotionally. It can also distort, befuddle, or impact a person's behaviors and thoughts in ordinary life, changing their sense of identity and negatively impacting their wellbeing.

INTRODUCTION TO “PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005”

“If we are to fight discrimination and injustice against women we must start from the home for if a woman cannot be safe in her own house then she cannot be expected to feel safe anywhere.” 

― Aysha Taryam

Despite the fact that there is no gender-specific profile of the victims of domestic violence, it is generally acknowledged that women are the overwhelming majority of the victims. Almost all strata of women—from upper to lower class, from educated to uneducated—are victims of domestic abuse for a diverse range of reasons. Their spouses and in-laws torment them physically and emotionally in their marital homes or living situation. 

In an attempt to ameliorate the conditions of women, the "Protection of Women from Domestic Violence Act" (PWDVA) was introduced in 2005 and became effective from October 26, 2006. It is a civil legislation intended to provide women experiencing domestic violence immediate help. The PWDVA is unlike any criminal law, which aims to penalise those who commit acts of violence by imprisoning them or fining them. The benefit of it being a civil law is that it is victim-oriented, liberating the woman from relying on the police to take action, and offers legal recourse for civil relief(s) including monetary relief, injunctions, and restitution. Under this legislation, no arrests could be made based on a complaint.

This act, on the basis of international law such as the UN Declaration on Violence Against Women and a Model Code, defines Domestic Violence for the very first time in Indian Law. It provides a comprehensive definition of ‘Domestic Violence’, capturing not only the physical violence but other forms of violence too. It recognises that domestic violence is a human right violence. It empowers women to live a violence-free life. 

KEY FEATURE OF PWDVA- 

  • It is a civil law meat for protection of women and not a criminal law for punishment of abuser.
  • It provides emergency relief. 
  • It recognises 'aggrieved' person' in a wide manner, and covers not just the wife but a woman who is the sexual partner of the male irrespective of whether she is his legal wife or not.
  • It defines domestic violence and observes it as a human right violence.

RIGHTS AND REMEDIES UNDER PWDVA

The PWDVA identifies three important rights, i.e. “the right to be free from violence, the right to reside, and the right to seek remedies”. It has provisions as such-

  1. The right to be free from violence means, this law recognises the right of a woman to live in a violence-free home and provides legal remedies if this right is violated.
  2. The right to reside in a shared household.
  3. The right to seek remedies is provided, if 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 complaint under Section 498A of the Indian Penal Code. Sections 18-23 provide a large number of options for legal redressal. She can claim through the court’s Protection Order, Residence Orders, Monetary Relief, and Custody Order for her children.

ORDERS UNDER PWDVA

  1. Protection Order (Section- 18): The court can use this order to direct the opposite party to immediately cease all acts of violence.
  2. Residence Order (Section- 19): The purpose of the order is to prohibit the aggrieved person's eviction and any behaviour that interferes with her peaceful occupancy of the shared home.
  3. Monetary Relief (Section- 20): To compensate the aggrieved person for actual expenditures due to domestic abuse, such as medical bills and loss of income as well as maintenance, in addition to mental torment and emotional anguish.
  4. Custody Order (Section-21): A woman has the right to request interim child custody arrangements. This is done to keep the lady from being separated from her children.

SHELTER AND MEDICAL ASSISTANCE TO WOMEN

  • The shelter homes and the medical facility are under a legal obligation to provide shelter or medical facility to the aggrieved person.
  • Copy of medical examination report is to be provided free of cost to the aggrieved person.

The aggrieved party, here being the women who is victim of domestic violence, may file a complaint with the court through an NGO, a police station, or a protection officer, or directly to the court.

PROCEDURE UNDER PWDVA

The approach that an aggrieved person may pursue under the PWDVA is enumerated below-

STEP 1: NOTIFY A PROTECTION OFFICER

A woman that has suffered domestic violence should approach a protection officer. 

STEP 2: AGGRIEVED WOMEN SHOULD BE INFORMED OF THEIR RIGHTS. 

An aggrieved woman should be informed of her rights by a police officer, Protection Officer, Service Provider or Magistrate. The rights include- 

  1. Her right to make an application for obtaining relief by way of protection order, an order for monetary relief, a custody order, a residence order, a compensation order;
  2. Her right to free legal services under the Legal Services Authorities Act 1987; and her right to file a complaint under section 498 A of the Indian Penal Code;
  3. Her right to services of the Protection Officers, Service Providers, including shelter homes, medical facilities, etc

STEP 3: COMPILING A DOMESTIC INCIDENT REPORT AND OTHER PROTECTION OFFICER RESPONSIBILITIES

The Protection Officer submits a Domestic Incident Report to the Magistrate and copies are forwarded to the Police Officer in charge.

STEP 4: APPLYING TO A MAGISTRATE: 

The Magistrate shall set the first date of hearing, which shall not typically be more than three days after the Court obtains the application, and shall endeavour to dispose of every application within 60 days of the date of the first hearing.

STEP 5: INFORMING THE RESPONDENT OF THE DATE OF THE HEARING

The Magistrate shall issue a notice of hearing to the Protection Officer, who shall serve it on the respondent and any other person as ordered by the Magistrate within two days. 

SOME AFFIRMATIVE ACTIONS THAT THE MAGISTRATE MAY TAKE- 

  • Issue of an order for payment of compensation or damages without regard to such person's right to bring a claim for damages or compensation for an injury sustained by the respondent's acts of domestic violence
  • Encourage both individuals to seek counselling
  • Pass a protection order, resident order, compensation order and/or ex-parte order
  • Continue with the trial hearings in camera

SOME OTHER IMPORTANT POINTS- 

  • The aggrieved person has the right to stay in the shared home during the course of the trial. 
  • The aggrieved has the right to seek assistance from someone else during the course of the proceeding.
  • The order issued by the magistrate is provided to the parties free of cost. 
  • If the order passed by the magistrate is breached, imprisonment or fine or both shall be there. 
  • The fulfilment of all these orders shall be ensured by the central and state government

IMPORTANT TERMS UNDER PWDVA

CERTAIN TERMS REQUIRED BY THIS ACT INCLUDE-

  1. Aggrieved Person: Any woman who is, or was in a domestic relationship and has lodged a complaint.
  2. Respondent: Any adult male who is, or was in a domestic relationship with the aggrieved person and has been lodged a complaint against.
  3. Domestic Relationship: The relationship between two persons who may be married or live in a shared household or have lived in a shared house. 
  4. Shared house: Any house where the aggrieved person is living with or has lived with the respondent at any given point of time during the course of the relationship.
  5. Child: Anyone under the age of 18
  6. Magistrate- The judicial magistrate. 
  7. Protection officer: An officer appointed by the state government.
  8. Medical Facility: As the state government shall define. 
  9. Monetary Relief: The compensation as indicated by the magistrate is to be paid to the aggrieved person by the respondent. 
  10. Compensation order: Order to pay reparations and penalties for injuries, including mental torment and emotional suffering, caused by the respondent's acts of domestic violence
  11. Custody order: An order indicating the temporary custody of any child or children to the aggrieved person. 
  12. Protection order: An order by the magistrate to halt the violence and harassment of the aggrieved by the respondent.
  13. Residence order: The magistrate shall pass the order to grant the aggrieved person to continue living in the shared household. 
  14. Shelter home: Any home that has been elected by the state government to be a shelter home or in other words, a safe house for the aggrieved person.

FUNCTION OF PROTECTION OFFICER UNDER PWDVA

The Protection Officer is the authority entrusted with doing everything feasible to enable the woman get the solutions provided by the Law and lead a life devoid of cruelty. The Protection Officer will act as a liaison between the complainant and the Court, in addition to between the victim and the authorities, medical institution, and refuge home.

Some function of the protection officers under the PWDVA are as followed:

  • When the Protection Officer receives a complaint from an aggrieved party, he or she must create a Domestic Incident Report and transmit it to the appropriate authorities for further action, if the aggrieved so wants.
  • The protection officer shall educate the aggrieved person about her rights, services and remedies. 
  • The protection officer shall handle all the complaints and or applications.
  • The protection officer assists the victim in accessing legal aid.

CONCLUSION

“The enemy doesn’t stand a chance when the victim decides to survive” 

― Rae Smith

Domestic violence is, disastrously, a reality in Indian society. In the patriarchal system of India, mistreating women grew to be considered normal. Domestic violence can occur for a variety of reasons. Domestic violence against women, from a feminist perspective, may be ascribed to the patriarchal ideology, rampant sexism, and the division of power, either real or perceived, in culture. In such beliefs, men are perceived to be greater and more powerful than women. They have power over women and their livelihoods; consequently, they may harm women with impunity. The woman's job is to humbly accept her "destiny" and the brutality perpetrated on her.

The Indian government has done a remarkable job in attempting to better the status of women with the "Protection of Women from Domestic Violence Act," a noble piece of legislation established in 2005 to tackle this problem. In principle, the Act goes a brilliant way toward protecting women in a domestic relationships. Being a civil law, and not a criminal law, this act treats providing relief to women as a priority over punishing the aggressor. It even addresses forms of abuse that were either not recognized previously or were handled in narrow terms. For example, it encompasses sexual abuse such as marital rape, which, while prohibited by the IPC, is now legally recognised as a type of abuse under the definition of sexual abuse in this Act. 

PWDVA, 2005 is without a doubt one of the most excellent initiatives implemented by the Indian government to protect and empower women from the ills of society caused by patriarchy and misogyny.

BIBLIOGRAPHY

WRITTEN BY-

APOORVA SINGH