Special law focused on victims and giving them relief from domestic violence. You can file an application under this law. This does not stop you from seeking other civil or criminal action against the offenders.
THE PROTECTION OF DOMESTICVIOLENCE ACT” was introduced and came into force in 2005. It guarantees article14,15, and 21 of the Indian Constitution, This law recognizes the right of women to live in violence free home and provided legal remedies if this right is violated, Legal remedies pertain to civil relief such as injunction, compensation and monetary relief. There can be no arrest made on complaint filed under this law, This is a civil law aimed at providing immediate support to women facing domestic violence, It is different from criminal law, which is directed at providing punishment to perpetrators of violence (those who commit violence) through imprisonment or fines, This law also is a victim oriented.
What is domestic violence?
Any form of abuse causing harm or injury to the physical and/or mental health of the women or compromising her life and safety.
Any harassment for dowry or to meet any other un lawful demand
Threat to cause injury or harm.
Sec-3 of the act define domestic violence. Domestic violence under this law can include different kinds of abuse and violence.
Form of abuse recognize under law
Physical abuse (beating, kicking etc)
Sexual abuse (force sexual intercourse, force the women to look the pornography etc)
Verbal or emotional abuse (insult for not being a male child, threat to commit suicide etc)
Economical abuse (not providing money for maintain herself etc)
Any kind of abusive behavior by your husband or male partner or their relatives (includes male and female relatives). It need not be physical abuse. It could also be verbal, emotional, sexual or economic abuse.
WHO IS THE VICTIM ? (AGGRIEVED PERSON)
Every woman (aggrieved person) or a child who is, or has been, in a domestic relationship with the perpetrator (respondent) of the domestic violence can take help of the PWDV ACT, 2005.
Domestic relationship through marriage, blood relationship or other relation like adoption, relationship in nature of marriage etc.
This law aims to protect women who are living in the same house with people who are related through: Marriage | Blood Relationship | Adoption | Relationships in the nature of marriage | Share household is a house hold where the victim lives or at any stage of time have lived with domestic relationship.
What can a women get by filing a complain under the law ?
Under the PWDV Act, 2005 an aggrieved person get the following reliefs/orders
· Protection order u/s 18
· Residence order u/s 19
· Monetary relief u/s 20
· Custody order u/s-21
· Compensation order u/s-22
· Ex-parte or interim order u/s-23
This can also termed as stop violence order through this order the court can direct the other party to immediately stop the act of violence, In this order, the Magistrate can do the following:
preventing the offender from entering the women place of employment and causing harassment.
Can order the offender not to harm anyone who depends on the victim, her relatives and anyone else who has helped her.
Order the offender not to commit or help commit domestic violence.
Can order the offender not to contact the victim personally or through e-mail, telephone or similar means
Can order the offender not to do the following without her permission:
sell or give away their things
use their joint bank account, or
use their joint bank locker.
Even before making the final decision in a domestic violence case, the Magistrate can pass a 'protection order' if she is somewhat convinced that such violence has taken place or can take place in the near future
Basic Features of the Domestic Violence Act, 2005
Apart from the victim herself, the complaint regarding an act or act of domestic violence can also be lodged by ‘any person who has a reason to believe that’ such an act was committed or is being committed. This means that neighbors, social workers, relatives can also take initiative.
The magistrate has been given powers to permit the aggrieved women to stay in her place of adobe and she can not be evicted by her male relatives in the retaliation. This is not all; the aggrieved woman can even be allotted a part of the house for personal use.
The respondent can be prohibited from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of work, if the aggrieved person is a child, the school. Also magistrate can bar the respondent to communicate with aggrieved person by “personal, oral, written, electronic or telephonic contact.”
The magistrate can impose monthly payments of maintenance. The respondent can also be ordered to meet the expenses incurred and losses suffered by the aggrieved person and any child of aggrieved person as a result of domestic violence. It can also cover loss of earnings, medical expenses, loss or damage to property.
Under Sec 22 magistrate can make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by act(s) of domestic violence.
Penalty up to one-year and/or a fine up to Rs. 20,000/- can be imposed under under the act. The offence is also considered cognizable and non-bailable while Sec 32 (2) goes even 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 ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in the court and every case must be disposed off within a period of sixty days of the first hearing.
The act makes provisions for state to provide for protection officers and status of ‘service providers’ and ‘medical facility’.
Chapter 4 Sec 16 allows the magistrate to hold proceedings in camera “if either party to the proceedings so desires”.
One of the orders that the Magistrate can pass in a domestic violence case is a 'residence order'. The residence order can include the following:
She can order the offender not to throw the victim out of their shared home.
She can order the offender to leave the shared home. Please note that she cannot order any female relatives of the offender to leave the house.
She can order the offender and his relatives not enter the victim's portion of the shared home.
She can order the offender not to sell, lease or mortgage the shared home.
She can order the offender not to leave the shared home without her permission.
She can order the offender to pay for or buy another house for the victim if need be.
In order to protect the victim and her children, the Magistrate can impose additional conditions in such residence orders.
Sometimes the Magistrate can order the offender to sign a bond with the court to ensure that he does not commit acts of domestic violence. The Magistrate can choose to require the offender to get sureties (other people who will take up responsibility for his behavior).
The Magistrate can ask the local police to help the victim implement a residence order.If the victim does not have money, the Magistrate can order the offender to pay the rent and other payments in any type of residence order.The Magistrate can ask the local police to help the victim implement a protection order. The Magistrate can order the offender to give back her stridhan or other valuable security to the victim.
Monetary relief u/s 20
To compensate the victim and her children for the injuries and losses they might have suffered as a result of domestic violence, the Magistrate can order the offender to pay for the following:
lost income (for example, if the victim did not receive salary because she was in hospital for a month when her husband hit her);
hospital bills and money for medicines;
damaged property or property which the offender has taken away from the victim;
child maintenance (note that the victim can claim maintenance under this Act even if she has filed a separate maintenance application under criminal law).
The Magistrate should fix the amount according to the standard of living that the victim is used to.The Magistrate can order monthly or lump-sum maintenance.Copies of such orders have to be sent to the parties in the case and to local police station.The offender has to pay money to the victim within the specific time period according to the Magistrate's order.Say the offender does not make the payments, the Magistrate can direct the person who employs the offender or who owes money to the offender to pay the court directly. This will be adjusted against the money that has to be paid by the offender.
Custody order u/s-21
Under this law, the Magistrate has the power to pass a temporary custody order at any stage during the case. She can grant custody of the children to the victim or any person filing the case for her. She can also allow the offender to visit the children. She can choose to refuse such visits if a visit by the offender can hurt the children.
Compensation order u/s-22
The Magistrate can pass another type of order for payment of money - compensatory orders. The Magistrate passes such orders to compensate the victim for mental torture and emotional distress.
Ex-parte or interim order u/s-23
Given the nature of domestic violence cases, the law allows the Magistrate to pass temporary orders (before the final order is passed) or orders in the absence of the offender (if there is an immediate threat of violence).
PROTECTION OFFICER POLICE
You can go to the police station, a Protection Officer, a Service Provider or a Magistrate.
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.
PROCEDURE FOR CLAIMING RELIEF
COMPLAINT (SEC-5 & RULE 5 FORM 1)
PARTY APPEAR BEFORE COURT
INTERIM ORDER PASSED
EVIDENCE AND ARGUMENT
FINAL ORDER PASSED : IF THE ORDER PASSED BY THE APPLICATION FOR APPEAL
COURT IS VIOLATED ALTERATION & DISCHARGE WITHIN 30 DAYS BEFORE SESSION
Duties of police officers, service providers and Magistrate (SEC-5)
The law imposes certain duties on the main authorities responsible for enforcing this law. When a police officer, Protection Officer, Service Provider or Magistrate comes to know that someone is suffering from domestic violence, they must inform the victim of the following rights:
The victim can use the services of certain official Service Providers.
The victim can approach a Protection Officer and ask them for help.
The victim can ask for free legal aid.
The victim can also file a criminal complaint under the general law on crimes (the Indian Penal Code, 1860). Please note that filing a criminal complaint can put the offenders in jail for up to three years. The victim must have suffered a graver degree of abuse (i.e. cruelty) to be able to file a complaint
Application to Magistrate (SEC-12)
What is the procedure for domestic violence cases in court? What kind of orders can a victim expect from the Magistrate?
If you as a victim of domestic violence want a more permanent solution to your problems, you can go to the court. The type of judges who are responsible for this Act are called 'Magistrates'.
The victim need not make the application herself. The Protection Officer or any other person on her behalf can make the application.
One of the things the Magistrate has to keep in mind is the complaint which was first recorded by the Protection Officer or the Service Provider.
In addition to filing a domestic violence case under this Act, the victim can also go to court and file a normal civil case.
When the victim has also filed a normal civil case, the court will deduct the amount paid under the domestic violence case when deciding how much money she gets.
The Magistrate has to start the case within 3 days from the date of the application.
Once the Magistrate has started the case, she has to try her best to finish the case within 60 days.
Who is a Protection Officer?
A Protection Officer is the first point of contact for a victim.
The Protection Officer can help start proceedings before the Magistrate and help with providing a safe shelter or medical help.
Sec-2 (n) says “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8;
According to sec -30 of the act - The Protection Officers shall be deemed to be public servants.
Appointment of Protection Officers
Section-8 relates to the the appointment of Protection Officers and their qualifications.
The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act.
Please note that there is a duty on every State Government to appoint as many women as possible for the Protection Officer posts.
What is the role of a 'protection officer'? What do they do?
Sec-9 deals with Duties and functions of Protection Officers.
The Protection Officer has a general duty to help the Magistrate with her various duties under the Act.
The Protection Officer has a general duty to help the Magistrate with her various duties under the Act
The Protection Officer will first record her complaint in a particular format. This is known as the 'domestic incident report'.
The Protection Officer will then send a copy of this complaint to the local police station and Service Providers.
If aggrieved person wants to approach the courts which can pass orders under this law, the Protection Officer has to make an application on that behalf and present it to the Magistrate.
The Protection Officer has to ensure that she has access to a lawyer who will take up her case for free.
The Protection Officer has to maintain lists of all the NGOs in the area which provide legal help or counsel victims. also has to maintain lists of local shelter homes and hospitals which are designated by the government to provide help in such situations.
The Protection Officer has to find a safe shelter home for her. When she has found a safe shelter for her, PO needs to report this to the local police station and Magistrate.
The Protection Officer has to make sure that a doctor helps victim and has to send a copy of the medical report to the local police station and Magistrate.
The main duties of the Protection Officer are provided in this law. However, the government has imposed additional duties on the Protection Officer under rules.
The Protection Officer is answerable to the local Magistrate and the government
According to sec-33 The Protection Officer can be punished for not performing his duties as per the orders of the Magistrate. can be:
sent to jail for up to one year;
ordered to pay fine of up to Rs. 20,000;
sent to jail and ordered to pay fine.
1) Who is aggrieved person under the said DV Act?
S.2 (a) of the Act defines aggrieved person means any women who is or has been on a domestic relationship with the respondent and who alleges to have been subjected to domestic violence by the respondent.
2) Are Minors/minor male entitled for reliefs under this Act?
Yes, as the term”child”is defined under the law, minors will also be within the ambit of the definition of domestic relationship. Section 2(b)DV Act defines Child.
The mother can make an application on behalf of her minor child(whether male or female).In cases where the mother makes an application to the court for herself , the children can also be added as co-applicants for a relief under the DV Act. The Court can also, whenever appropriate, appoint a guardian or next friend to represent the child.
3)The female who is in” live-in relationship” or “ relationships in the nature of marriage “is entitled for relief under the Said Act?
Yes, Sec 2(f) of the DV Act defines the expression” Domestic Relationship” Relationships in the nature of marriage includes those relationships where there is no marriage between the parties ,in the sense of solemnization of a marriage under any law. Yet the parties represent to the world that they are a couple and there is stability and continuity in the relationships. Such relationships also known as “live-in relationship”
Different court judgments have discussed on different disputes pertaining to live-in relationships. Live-in relationships are now considered at par with marriage under a new Indian law pertaining to domestic violence. The provisions of the Domestic Violence Act, 2005 are now extended to those who are in live-in relationships as well. The amendments intend to protect the victims of domestic abuse in live-in relationships. Section 2 (g) of the aforementioned Act provides that
a relationship between two individuals who live together or have lived together in the past is considered as a domestic relationship. A woman who is in a live-in relationship can seek legal relief against her partner in case of abuse and harassment.
4) What are the features of the live-in relationships?
In Velusamy v/s Patchaiammal (2010) The Supreme Court stated that a ‘relationship in the nature of marriage’ is akin to a common law marriage. For the purposes of claiming benefits under the domestic violence law, the claimant must satisfy four requirements i.e. (a) the couple must hold themselves out to society 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 and (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
5) Does the use of term domestic relationship bring “relationships in the nature of marriage “ at par with marriages?
The law simply provides protection from violence to all women whether they are sisters, mothers, wives or partners living together in a shared household. The law however, does not state anywhere that an invalid marriage is valid. It provides protection from violence, the right to reside in the shared household, temporary custody of children, etc. However, for succession to the property of a male partner or in deciding the legitimacy of children, the general law of the land or the personal laws of parties will have to be relied upon.
6) Against whom the complaint can file?
A women can file a complaint against any adult male perpetrator (S.2 (q))of an act of violence. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband /male partner who have committed the violence.
7) Who fall within the meaning of” relatives” under Section 2(q)?
The word “relative “has not been defined in the DV Act. Hence the ordinary meaning will have to be assigned.i.e. father, mother, sister, uncle, brother of the respondent who may included in the word “relative” in section 2(q).It also include female relatives.
8 ) Can a complaint filed against husbands’ female relatives?
Yes, orders can be passed against the female relatives of the husband except the relief of dispossession against the female relative under Sec.19(1) of the Act.
9) Can mother in law file an application for reliefs against the daughter-in- law?
No, a mother –in –law cannot file an application against her daughter-in –law (Section 2(q))However in cases where a mother-in-law is facing violence at the hands of her son and daughter-in –law as abetting the acts of violence committed by the son.
10) How long does an interim order remain in force for?
Interim orders shall remain in force till such time either of the parties applies for its alteration, modification or revocation. In order to get such an order, a change in circumstances has to be shown (section 25(2)).Interim orders are also vacated on the granting of the final order by the Court.
11) Will a divorced wife have a right to claim relief under this DV Act from her Ex-husband?
The answer to this question depends on the facts of the case. In cases where, at the time of divorce, she has in express terms waived such a right, she cannot claim it in the future.
12) Can there be any appeals from an interim orders?
Section 29 of the DV Act allows appeals to session courts from any orders passed by magistrate. No appeal should lie from an order which have not affected the rights of the parties or is procedural.
13) Only married men are in danger?
No. Domestic Violence Bill extends to live-in relationships too.