A BRIEF ABOUT PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005

This article is written by Bhaskar Joshi of 9th semester of BA.LLB(H) of Amity Law School, Amity University, Noida

INTRODUCTION

Domestic Violence, a form of Social Evil that has been prevalent in our society for ages. As a social construct, it is the ill-treatment (mostly focused on physical abuse) of the wife by the husband. In a much broader sense, it is any physical, sexual, mental, emotional, or financial abuse of the woman by the partner or any of his family members. Domestic violence is a worldwide phenomenon that spreads across all boundaries of, race, caste, culture, ethnicity, etc. It is not just a form of abuse but a pattern of coercive control that one tries to maintain over their intimate partner, it is the use of power to maintain authority. This practice is passed down in our society by generations as the practice of one man reverberates through a family into the future. In modern times though the increase in awareness amongst the masses and the strict legislation for the same has led to a slight improvement in the condition of women. Over the last decade, the deep study on this topic has led to the recognition of this issue as a public health problem. However, the problem of domestic violence is very much prevalent in our country irrespective of rural-urban differentials. Women made 1,477 complaints of domestic abuse between March 25 and May 31, 2020, which was greater than the amount of complaints reported in the previous ten years for the same time period. This is after considering that 86% of women who experience domestic abuse do not seek any professional help, and 77% of the victims did not even mention the incidents to anyone^[1]. While the demand for Dowry remains as the source of the problem, factors such as order, income, illiteracy, and having a partner who drinks are also major contributors.

Section 498A Of the Indian Penal Code(IPC) is the Criminal Law that deals with the abuse of a married woman. Introduced in the Criminal Law Amendment Act 1983, Section 498A was inserted in the provisions of the IPC to safeguard women against abuse and empower them. According to a 2019 report by The National Crime Records Bureau (NCRB), Almost 30.9% cases of all the cases of crimes against women were registered under Section 498A of the IPC^[2]. Many provisions for women’s welfare have been established since then, one such provision is the Protection Of Women From Domestic Violence Act 2005.

KEYWORDS: Domestic Violence, PWDVA, Relief, Protection order, Live-In relationships.

Protection Of Women from Domestic Violence Act 2005

The Act was enacted by the parliament of India on 26 October 2006 to protect women from domestic abuse. Unlike the IPC (Section 498A) that focuses primarily on penalizing the accused this act provides for a protection order rather than a punishment order which means that the act focuses primarily on providing remedies to the victim. The act provides Civil remedies as well as comprehensive legislation for combining them with criminal procedures to provide immediate relief to the victim. Prior to the passing of the Act, there was no established definition of Domestic violence in the Indian Law therefore this act provided for the definition of Domestic violence. The act provides for the protection of women from their husband’s abuse and also extends to any female member of the victim’s family. It gives the Magistrate power to pass a protection order in favor of the victim to prevent the abuser from committing an act of domestic violence also establishes provisions for the appointment of Protection Officers.

Domestic Relationships and Violence

Domestic relationship” is defined in Section 2(f) of the Act as a relationship between two people who live or have lived together in a shared household at any point in time, and are related by consanguinity, marriage, or through a relationship like marriage, adoption, or are family members living together as a joint family.

In other words, Domestic relationships are relationships between a man and a woman living in a shared household [defined under Section 2(s)]. Domestic relationships can be a marriage, a blood relationship, or any other form of relationship formed through adoption, or any ‘relationships like marriage’ like a live-in-relationship. The act recognizes the rights of women in various domestic relationships, including marriage, a relationship resembling marriage (like a live-in relationship), or a familial relationship. While the act does not explicitly mention live-in relationships, the definition of a “domestic relationship” can include relationships “in the nature of marriage.” This implies that the scope of the act can extend to provide protection to women in live-in relationships under certain circumstances. To avail the protections under the PWDV, a woman in a live-in relationship needs to establish that she was in a relationship with the abuser and that they lived together in a shared household. The concept of a shared household is significant here, as it refers to a household where the aggrieved woman and the respondent (the abuser) lived together or have at any time lived together in a domestic relationship. Therefore, if the couple lived together in a shared household, the woman can seek protection under the act. But not all live-in relationships are considered relationships like marriage. As found in the case of INDIRA SARMA vs VKV SARMA (2013) (15 SCC755)^[3]. The Court in this case gave a list of guidelines that are required to test the concept of live-in-relationship which included duration of the relationship, domestic arrangements, sexual relationship, children, intention, and conduct of the parties, etc.

Also, Section 2(q)defines the respondent as an adult male who has been in a relationship with the aggrieved person and against whom the complaint is filed. It also states that the woman can file a complaint against any relatives of the partner.

Section 3 of the act defines Domestic violence as the following:

• Any form of abuse in the form of physical, sexual, verbal, or emotional abuse and economic abuse that causes harm to the physical or mental health of the woman or endangers her life and safety or,
• Any harassment or injury to the woman to meet any unlawful demand such as Dowry from her or any person related to her or,
•  Any threat of causing harm or injury

PROTECTION OFFICER

Protection officer is defined under Section 8 of the Act. A Protection Officer (PO) is an officer (preferably a woman) appointed by the Government in each district. The job of a protection officer is to help the aggrieved in making complaints, filing an application before the Magistrate for orders, helping her in getting support like medical aid, counseling, etc., as well as making sure that the orders passed by the court are enforced.

Duties of Protection Officer as per Section 9 of the Act are as follows:

• To make a Domestic Incident Report and present it in front of the magistrate. A ‘Domestic Incident Report, according to Section 2(e) is the report of the complaint made by the aggrieved woman which is then forwarded to the magistrate and a copy to the police station having the jurisdiction over the matter.
• To ensure that the aggrieved person is provided with the necessary legal aid and to make sure that the person is provided with shelter home if required.
• The protection officer is also required to get the aggrieved person medically examined in case of any bodily injury. He is required to forward the report of the same to the magistrate.
• The protection officer ensures that the orders passed by the Court are complied with and executed. He is also required to do anything prescribed by the Magistrate.

SERVICE PROVIDERS

A Service Provider is a voluntary organization (usually an NGO) registered with state governments aimed at protecting the rights and interests of women. They help in providing assistance and support to the woman facing domestic violence. A woman can approach a registered Service Provider for making a complaint under this Act. They assist her by providing legal aid, medical care, counseling, or any other support as they have the power of making the Domestic Incident report which they can then forward to the Protection Officer and the Magistrate. Just like the Protection Officer they can also get the aggrieved person medically examined and also provide them with a shelter home. They are defined underSection 10of the Act.

APPLICATION TO MAGISTRATE

An application seeking relief under this Act can be filed to the Magistrate by the woman, or the Protection Officer, or any other person on behalf of the aggrieved person (like Service providers). The Magistrate then takes into consideration the Domestic Incident Report filed by the Protection Officer or the Service Provider before passing on order. The Magistrate fixes the date of the first hearing within three days of the filing of the application. This notice is served to the respondent by the Protection Officer.

It is the duty of the Magistrate to dispose of any application within 60 days from the date of the first hearing. The Magistrate can at any stage of the proceeding consult both the parties to undergo counselling by someone who possesses such qualifications and experience in counselling.

RELIEFS

Section 18-22 of the Act provides for various reliefs that can be granted under this Act. They are as follows:

• Protection Order (Section 18):  If the Court is satisfied that Domestic violence has taken place, then the court can pass Protection Order. A protection order protects the aggrieved person and prohibits the respondent from committing any act of violence. This includes physical, sexual, verbal, emotional, or economic abuse, as well as any other forms of harassment or harm. Not only that the court also prohibit the respondent from:
• Entering the place of employment of the woman and causing harm or harassment.
• Attempting to contact the aggrieved in any form
• Providing any financial hardship by tampering with any asset that it conjointly owned by the respondent and the aggrieved, or any other way     
• Causing harm to the dependencies or any relative of the aggrieved, etc.
• Residence order (Section 19): This relief aims to ensure that the aggrieved has a safe place to reside. Not only that but the respondent may be restrained from dispossessing or disturbing the woman from the shared household.  Under this section, the court can pass a residence order:
• To restrain the respondent from disposing of the aggrieved from the shared household or
• To restrain the respondent or any of his relatives from entering any portion of the shared household where the aggrieved resides or
• To Direct the respondent to leave the shared household himself or
• Direct the perpetrator to provide an alternate accommodation for the aggrieved person

               The Magistrate can also order the officer in charge of the police station having 

               jurisdiction to ensure the proper execution of the order and can also pass protection

               order for the safety of the victim.

• Monetary reliefs (Section 20): This order can be imposed by the Magistrate to meet any expenses the woman may have incurred as a result of the violence faced. This may include any loss of earnings, any medical expense as a result of an injury caused, any loss of belongings, or maintenance for the aggrieved and her children. This relief should be adequate, fair and should be enough to maintain the same standard of living as before. In case of failure of the payment or maintenance, the Magistrate can order the deduction of the same from the respondent’s wages.
• Custody Order (Section 21): Under this Section, the Magistrate can grant an order directing the Custody of the children to the aggrieved person. This is done to prevent the woman from being separated from her children. The Magistrate if deems necessary may allow the respondent to pay visits to their children. It is to be noted that this is a temporary order and cannot affect the rights under any guardianship laws.
• Compensation orders (Section 22): Under this Section, an order can be passed by the Magistrate to compensate for any physical, mental, or emotional injuries sustained by the woman due to domestic violence. This compensation is granted on top of any other relief (such as Section 20) under this Act.
• Any Other Relief: The protection order may include any other measures necessary to provide effective protection to the woman based on the specific circumstances of the case. The court has the authority to determine the appropriate relief based on the individual situation.

During the proceeding, the court can at any point of time pass an interim order to prevent the exploitation of the aggrieved during proceedings. This Act also provides punishment for the breach of Magistrate order by the respondent. According to Section 31, if the respondent violates a Protection Order or any interim order then he is liable for punishment with imprisonment for a term that may extend up to 1 year, or a fine which may extend up to 20,000 rupees, or both. And the court can also initiate proceeding under criminal law under Section 498A of IPC. This section ensures that the court has the power to intervene promptly and take necessary steps to protect the rights, safety, and well-being of the aggrieved woman, especially in situations where there is an urgent need for action. However, it is important to note that the punishment established by Section 31 of the Act would apply only to violations of protection orders issued under Section 18 of this Act and would not apply to maintenance orders issued under Section 20 of the Act.^[4]

THE PROBLEM WITH LIVE-INs

Although the act recognizes live- in relationships, the application of the Protection of Women from Domestic Violence Act (PWDV) of 2005 to live-in relationships in India has been marked by challenges and inconsistencies. Live-in relationships are legally not recognized as marriages in India. As a result, the interpretation and application of the PWDV to live-in relationships have been inconsistent across different courts. Some courts have recognized the rights of women in live-in relationships under the act, while others have taken a more restrictive approach. As found in the 2021 ruling of the Punjab and Haryana high court where they refused to grant protection to a young couple who moved to court fearing threat to life from the girl’s family, stating that “the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable”^[5]. Furthermore, the definition of a “shared household” under the PWDV has led to ambiguity in cases of live-in relationships. The act defines a shared household as a place where the aggrieved woman and the respondent live or have lived together in a domestic relationship. However, the lack of clarity on the criteria for determining the existence of a shared household in live-in relationships has caused challenges in applying the act to such situations. On top of that, Establishing the existence of a domestic relationship in a live-in arrangement can be challenging. Unlike marriages, which have legal documentation, live-in relationships often lack formal proof of the relationship. This can make it difficult for women in live-in relationships to provide evidence required to seek protection under the PWDV. One of the biggest problems is that the Live-in relationships still face social stigma and are not widely accepted in traditional Indian society. Due to this stigma, women in live-in relationships may face reluctance or fear in seeking legal protection under the PWDV. Additionally, lack of awareness about legal rights and remedies available to women in live-in relationships further hampers their ability to access the provisions of the act. Additionally, PWDV acknowledges economic abuse as a form of domestic violence. However, in the context of live-in relationships, establishing economic dependence on the part of the woman can be challenging. The act’s provisions for monetary relief and maintenance may not be easily applicable in cases where there is no formal legal or financial commitment between the partners.

SOME IMPORTANT JUDGEMENTS

1. Sou. Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade and Ors. (2011) (SCC650)

Any adult male who is or has been in a domestic relationship with the aggrieved woman and against whom the aggrieved woman has sought any remedies under this Act is referred to as a “respondent” under Section 2(q) of the Domestic Violence Act. but this case was the one that challenged the notion of excluding female relatives of the husband from coming under the ambit of this Act.

FACTS: Sandhya Manoj Wankhade after her marriage, moved in with Manoj Bhimrao Wankhade and his mother and sister in 2005. About a year later, she began experiencing abuses from the three of them therefore she filed complaints under several articles of the Protection of Women from Domestic Violence Act, 2005. The High Court however ruled in the favor of the in-laws and freed them of all charges. Therefore an appeal was filed in the Supreme Court for the same.

JUDGEMENT: The Apex Court held that Although Section 2(q) defines a ‘Respondent’ only as an adult male person, this provision widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship like marriage. Hence making, the complaints not just maintainable against the adult male person but also the female relative of such adult male.^[6]

2. Binita Dass vs Uttam Kumar (2019) (262 DLT 368)

Section 23 of the Act provides provisions for interim orders that can be passed by court for the welfare of the aggrieved woman; this can even extend to interim maintenance by the husband to the wife. This case argues if the wife’s capability to earn a living on her own relieves the husband from paying maintenance.

FACTS:  The appellant had filed an application under the Protection of Women from Domestic Violence Act, 2005 along with this application she also had filed an interim application under Section 23 seeking interim maintenance.

The application was then rejected by the Magistrate on the ground that the petitioner was qualified and was previously employed nor did she have any disability that may disable her to earn her living. This decision was later challenged in the high court by the petitioner.

JUDGEMENT: The High Court held that the capacity to earn and actually earning are two different things. It is not the case of the respondent, that petitioner is employed or earning.  Qualification and the capacity of the wife to earn cannot be a ground to deny interim maintenance to a wife who is dependent and has no source of income.^[7]

CONCLUSION

Domestic violence is one of the most widespread crimes against women. But until 2005, there was no legal definition for domestic violence. While provisions in Criminal Law did exist which dealt with similar offenses, the introduction of this Act led to the legal recognition of the crime. The PWDVA 2005 is a progressive legislation that seeks to protect women’s rights and address the issue of domestic violence comprehensively. It aims to provide immediate protection, support services, and legal remedies to women facing violence within domestic relationships, promoting their empowerment and well-being. Though the act has progressed a lot and helped many aggrieved women, the sad reality is that in many parts of the country there exists no Protection Officer or any Service providers that can help women deal with such atrocities. There is also a lack of proper infrastructure facilities (shelter homes). Women also tend to remain in the abusive environment and not take any action, most of whom are unaware of the legal remedies available. If remedied, this can lead to the liberation of women from the bondage of abusive relationships.

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^[1] Data | Domestic violence complaints at a 10-year high during COVID-19 lockdown”. The Hindu, E-paper, available at https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece, last seen on 21.06.2023

^[2] “Decoding the Extent to Which Domestic Violence Is Under-Reported in India”. The wire, available at https://m.thewire.in/article/women/domestic-violence-india-underreported#:~:text=Comparing%20these%20estimates%20with%20the,or%2070%25%20of%20the%20states, last seen on 21.06.2023

^[3] Indra Sarma vs V.K.V. Sarma on 26 November, 2013, Indiankanoon.org, available at https://indiankanoon.org/doc/192421140/, last seen on 21.06.2023

^[4] Kerala High Court| Section 31 of Domestic Violence Act only applies to breach to protection orders; No penalty can be imposed for failure to pay maintenance, scconline.com, available at https://www.scconline.com/blog/post/2022/12/15/legal-update-legal-news-no-penalty-under-section-31-domestic-violence-act-on-failure-to-pay-maintenance/, last seen on 23.06.2023

^[5] In Garb Of Protection Petition, Live-In Couple Seek Seal Of Approval On Socially And Morally Unacceptable Relationship: P&H High Court, livelaw.in, available at https://www.livelaw.in/news-updates/punjab-and-haryana-high-court-denies-protection-live-in-couple-socially-morally-unacceptable-174285, last seen on 22.06.2023

^[6] Sou. Sandhya Manoj Wankhade vs Manoj Bhimrao Wankhade & Ors on 31 January, 2011, Indiankanoon.org, available at https://indiankanoon.org/doc/134989405/, last seen on 23.06.2023

^[7] Binita Dass vs Uttam Kumar on 9 August, 2019, Indiankanoon.org, available at https://indiankanoon.org/doc/92763076/, last seen on 23.06.2023