On the Protection of Women from Domestic Violence Act

- Srilata Swaminathan The Domestic Violence Bill which had been pending before the Lok Sabha for many years has finally been passed this monsoon session. There have been a number of changes made to it and serious lacunae that existed at the time the NDA government drafted it have been suitably amended. Bill No. 116 of 2005 has now officially become The Protection of Women From Domestic Violence Act, 2005. While the UPA government has shown its total lack of political will and has been as impotent as the NDA in passing the 33% women's reservation bill they have been able to push through this - maybe as the lesser evil! The new act contains five chapters and 37 sections. Its main features are 1. that the term 'domestic violence' has been made wide enough to encompass every possibility as it covers all forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person. (Ch.II, S.3) This is a genuinely wide definition and covers every eventuality. 2. the definition of an 'aggrieved' person' is equally wide 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. The daughter, mother, sister, child (male or female), widowed relative, in fact, any woman residing in the household who is related in some way to the respondent, is also covered by the Act. (Ch.I, S.2(a)). The respondent under the definition given in the Act is "any male, adult person who is, or has been, in a domestic relationship with the aggrieved person" but so that his mother, sister and other relatives do not go scot free, the case can also be filed against relatives of the husband or male partner. It appears from the Act that the information regarding an act or acts of domestic violence does not necessarily have to be lodged by the aggrieved party but by "any person who has reason to believe that" such an act has been or is being committed. Which means that neighbours, social workers, relatives etc. can all take initiative on behalf of the victim (Ch.III, S4). One great weakness of the previous NDA bill has been effectively removed in the present Act and that is that the magistrate has the powers to permit the aggrieved woman to stay in her place of abode and cannot be evicted by the husband in retaliation. This fear of being driven out of the house effectively silenced many women and made them silent sufferers. The court, by this new Act, can now order that she not only reside in the same house but that a part of the house can even be allotted to her for her personal use (Ch.IV, S.17) even if she has no legal claim or share in the property. S.18 of the same chapter allows the magistrate to protect the woman from acts of violence or even "acts that are likely to take place" in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person's place of work or, if the aggrieved person is a child, the school. The respondent can also be restrained from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral, written, electronic or telephonic contact" (S18d). The respondent can even be prohibited from entering the room/area/house that is allotted to her by the court.

The Act allows magistrates to impose monetary relief and monthly payments of maintenance. The respondent can also be made to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence and can also cover loss of earnings, medical expenses, loss or damage to property and can also cover the maintenance of the victim and her children (Ch.IV, S.20). S.22 allows the magistrate to make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by acts of domestic violence. Ch. V . S.31 gives a penalty up to one year imprisonment and/or a fine up to Rs. 20,000/- for and offence. The offence is also considered cognisable and non-bailable (Ch.V, S.32(i) while S. 32 (2) goes even further and says that "under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused" The Act also ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in court and every case must be disposed of within a period of sixty days of the first hearing (Ch.IV, S.12 (a) (4) and (5)). It make provisions for the state to provide for Protection Officers and the whole machinery by which to implement the Act. After going through the Act with a fine-tooth comb, the only major change I would make to the Act is in S.16 of Chapter IV which allows the magistrate to hold proceedings in camera "if either party to the proceedings so desires". Now, our experience in AIPWA has proven that sometimes in camera proceedings can protect the aggrieved woman from a lot of humiliation and shame especially in cases where explicit acts of sexual abuse and violence are being discussed in an open court and it allows for her dignity and privacy to be maintained. BUT, we have also seen trials where the in camera proceedings only intimidated the aggrieved in favour of the respondent. This is especially so when the aggrieved is the only woman in court facing a completely male phalanx of hostile, sneering magistrates, lawyers, officials, police, male respondent etc. The solution is to change this section to only allow for in camera proceedings NOT when EITHER party so desires but only if the aggrieved party so desires. Also, the aggrieved party should be allowed to be accompanied by any relative/woman social worker etc. of her choice for moral support. Misuse of the act, like all such acts in India , cannot be ruled out. In fact, with a system as corrupt as ours, money, clout and muscle power will always call the shots. And as long as the woman stays a puppet or pawn in the hands of her male relatives, she will always be manipulated and used. However, with this Act, there is at last legal recognition of the scale of domestic violence that actually exists. This Act should also put an end to many of the misuses of the Anti Dowry Act.(4) . But when one sees the dismal record of implementation of Acts related to giving relief to the oppressed, one cannot but be sceptical. For instance, the Rape Act brings only 5% of all rapes committed to court and of those only 5% get convictions! The main beneficiaries of the Act will, of course, be women of the propertied upper classes. But there is no doubt that with this Act a whole Pandora's Box of litigation will be thrown open and all the degradation, brutality and cruelty to women that has been carefully swept under the carpet for centuries in our 'old, rich heritage and civilisation' is all going to be exposed - and about time! For those feminist groups that see the family or the male as the main cause for women's oppression, this Act will open up all sorts of possibilities in their struggles. But for the revolutionary left organisations that see the present system as the cause for women's oppression, these Acts are no solution to the basic problems that women face and are, at best, mere stop-gap measures. The underlying reasons for the violence against women which are her

enslavement under the present system; the double-standards and hypocrisy of monogamy; the fact that she has been effectively 'privatised' for centuries, removed from public production, public decision-making and interaction; has no economic independence, is relegated to domestic drudgery and is virtually the personal property of her husband/in-laws is not remotely understood or tackled. It is like giving a prisoner certain rights to resist torture and abuse but doing nothing for releasing him from his shackles! (1) The capitalist system whereby women, especially poor working women are doubly enslaved, cannot offer any long-term solution for the emancipation of women or their freedom from violence. It is only socialism that can truly emancipate women by not only making her equal under law and giving her every legal protection but, far more important, reversing the injustices of the past thousands of years by socialising the means of production, bringing the woman back into social production and decision-making, freeing her of her domestic enslavement by the state taking responsibility through crches, community kitchens, old-peoples' homes etc. It is only a new socialist system that will free both the man and the woman, make them truly equal partners economically, socially and politically - so that they can enter into a genuine partnership and thus evolve the new type of family where neither will be victim nor villain. Am I against the Act? No, not at all. But its limitations must be kept in mind. Within the existing unjust and unequal bourgeois system here is an act of legislature that gives oppressed women some respite, but a very temporary one as it will not end the hypocrisy of bourgeois monogamy. Hopefully, the contradictions will be so heightened that society will have to go in for more longlasting solutions. However, this Act does ensure that women are not totally at the receiving end but have some weapon to fight back with. As Marx so concisely put it: "You cannot give equal laws to unequal people" (2) Further Reading : 1. 'Origin of Family, Private Property and State' by F. Engels 2. 'The Gotha Programme' by Karl Marx 3. "Home is where the Law is" by Indira Jaisingh, Indian Express, 8 Sept. ;05. . "Reflections on Domestic Violence" by Flavia Agnes, Asian Age, 6 Sept. 05 Protection of Women from Domestic Violence Act 2005 has come into force from 26.10.2006. The Act is aimed at providing protection to wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives. The Law extends protection to women who are sisters including adopted sisters and mothers. Domestic violence under the Act includes actual abuse or threat of abuse, whether physical, sexual, verbal, emotional, or economic. Harassment by way of unlawful dowry demands to the women victim or her relatives would also be covered under the definition of Domestic violence. The Deptt. Of Social Welfare, Government of Delhi is the Nodal Department for the implementation of provisions under the Act. For effective implementation, the Rules provide for Appointment of Protection Officers in each district as per section 8 of the Act and provide them with necessary infrastructure to enable them to start functioning Invite applications from service providers as per Rule 11 and register them after due verification as regards their suitability Publish the names and addresses with telephone number of the Protection Officers and the service providers. Wide publicity to the provisions of the Act.

The Deptt. Of Social Welfare has taken decision to appoint 18 Protection Officers on contract basis for which advertisements in Times of India has also appeared today i.e., 11.12.06. Meanwhile, the Department has designated 9 Welfare Officers as Protection Officers who are currently functioning from their present place of posting in various offices of Deptt. of Social Welfare. The Protection Officers shall be under the control and supervision of the Magistrates and shall perform the duties imposed by the Magistrates {as per Section 9(2)}. The Rules provide for duties and functions of the Protection Officers which shall be as under: 1. to assist the aggrieved person in making a compliant under the Act. If the aggrieved person so desires; 2. to provide her information on the rights of aggrieved persons under the Act. 3. to assist the person in making any application under section 12, or sub-section (2) of section 23 or any other provision of the Act. 4. to prepare a Safety Plan including measures to prevent further domestic violence to the aggrieved person after making an assessment of the dangers involved in the situation and on an application being moved under section 12; 5. to provide legal aid to the aggrieved person, through the State Legal Aid Services Authority; 6. to assist the aggrieved person and any child in obtaining medical aid at a medical facility including providing transportation to get the medical facility; 7. to assist in obtaining transportation for the aggrieved person and any child to the shelter; 8. to inform the service providers registered under the Act that their services may be required in the proceedings under the Act and to invite applications from service providers seeking particulars of their members to be appointed as counselors in proceedings under the Act under sub-section (1) of section 14 or Welfare Experts under Section 15; 9. to scrutinize the applications for appointment as Counsellors and forward a list of available Counsellors to the Magistrate; 10. to revise once in three years the list of available counselors by inviting fresh application and forward a revised list of Counsellors on the basis thereof to the concerned Magistrate; 11. to maintain a record and copies of the report and documents forwarded under section 9, 12, 20, 21, 22, 23 or any other provisions of the Act of these rules; 12. to provide all possible assistance to the aggrieved person and the children to ensure that the aggrieved person is not victimized or pressurized as a consequence of reporting the incidence of domestic violence; 13. to liaise between the aggrieved person or persons, police and service provider kin the manner provided under the Act and these rules; 14. to maintain proper records of the service providers, medical facility and shelter home in the area of his jurisdiction. Similarly, the Service Provider is entrusted with the responsibility to record domestic incident report and get aggrieved person medical aid, legal aid and shelter. The Service Provider should be a registered organization as per Section 10(1) of the Act.

The Protections Officers are to be attached with the Magistrates of the courts for the area notified for each protection officer. Therefore, the Protection Officers are required to function from all the district Courts and needs a premises within the court. For effective implementation, they need to be provided with vehicles for spot visits and making reports, staff to assist in maintaining records and corresponding with the aggrieved person, furniture and fixtures for establishing the office. The implementation of the Act provides for effective coordination and correspondence between Protection Officers, Police aggrieved persons and her family/relatives, district court, there is likely to be a number of cases being registered under the Act. This also requires a great coordination and monitoring among all these stakeholders as all the actions have to be reported within the specified time . Although the rules of the Act provide for appointment of Protection Officers only, there is requirement of a monitoring authority/officer in view of the volume of work in each case, and the number of cases likely to be registered under the Act. Accordingly, it is proposed that a Chief Protection Officer may also be appointed for addressing all the requirements under the scheme for implementation of Protection of Women from Domestic Violence Act 2005. The Chief Protection Officer can function from office in Head Quarters of Department of Social Welfare.
Definition of Domestic Violence (Section 3)
Any form of abuse causing harm or injury to the physical and / or mental health of the woman or compromising her life and safety Any harassment for dowry or to meet any other unlawful demand. Threat to cause injury or harm. The overall facts & circumstances of the case must be considered by the court

What is a Domestic Relationship [Section 2(g)]

Relationship between two persons who live or have, at any point of time, lived together in the shared household Includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family; Note : 1. Domestic relationships are not restricted to the marital context 2. Domestic relationships are meant to cover sisters, widows, mothers, daughters, women in relationships of cohabitation, single women etc. 3. Domestic relationships also protect women of fraudulent or bigamous marriages or in marriages inv

The Protection Of Women From Domestic Violence Act 2005

The Act has been enacted for the protection of women from domestic violence and further for protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The Act has come into effect from 17.10.2006. Taking into consideration existing criminal and civil laws and the statute prevailing in India, it was proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of Constitution of India to provide a remedy for protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Women who are married and staying with husband and his parents, sisters, brothers and are living together, sharing the household can seek remedy under the Act in the event of domestic

violence. Further, even the adopted daughter, or sister or even mother can seek remedy under the act against the person who abused them. The Act defines the expression Domestic Violence to include actual physical abuse, sexual, verbal emotional threat or economic harassment by way of unlawful dowry demands to the women of her relatives would also be covered under the definition. The Act also provides for the protection of women and her rights guaranteed under the contract of marriage or under the relevant statute depending upon each case.

The

kinds of abuse covered under the Domestic Violence Act 2005 are:

1.PhysicalAbuse an act or conduct causing bodily pain, harm, or danger to life, limb, or health; an act that impairs the health or development of the aggrieved person; an act that amounts to assault, criminal intimidation and criminal force. 2.SexualAbuse any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman. 3.VerbalandEmotionalAbuse any insult, ridicule, humiliation, name-calling; insults or ridicule for not having a child or a male child; repeated threats to cause physical pain to any person in whom the aggrieved person is interested. 4.EconomicAbuse depriving the aggrieved person of economic or financial resources to which she is entitled under any law or custom or which she acquires out of necessity such as household necessities, stridhan, her jointly or separately owned property, maintenance, and rental payments; disposing of household assets or alienation of movable or immovable assets; restricting continued access to resources or facilities in which she has an interest or entitlement by virtue of the domestic relationship including access to the shared household. 5. Domestic Relationship: A domestic relationship as under the Domestic Violence Act 2005 includes live-in relationships and other relationships arising out of membership in a family. 6. Beneficiaries under the Domestic Violence Act 2005: Women: The Domestic Violence Act 2005 covers women who have been living with the Respondent in a shared household and are related to him by blood, marriage, or adoption and includes women living as sexual partners in a relationship that is in the nature of marriage. Women in fraudulent or bigamous marriages or in marriages deemed invalid in law are also protected.

 Children: The Domestic Violence Act 2005 also covers children who are below the age of 18 years and includes adopted, step or foster children who are the subjects of physical, mental, or economical torture. Any person can file a complaint on behalf of a child. Respondent: The Domestic Violence Act 2005 defines the Respondent as any adult male person who is or has been in a domestic relationship with the aggrieved person and includes relatives of the husband or male partner. Shared Household: A shared household is a household where the aggrieved person lives or has lived in a domestic relationship either singly or along with the Respondent. Such a household should be owned or tenanted, either jointly by both of them or by either of them, where either of them or both of them jointly or singly have any right, title, interest or equity in it. It also includes a household that 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.