Domestic Violence Act, 2005

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Introduction

In societies worldwide, domestic violence stands as an issue that casts a shadow over the well-being of individuals and the progress of communities. It can be defined as a pattern of ‘abusive behavior within intimate relationships’. Our constitution serves as a guardian, protecting our individual rights. Beyond individual suffering, the societal impact of domestic violence undermines the foundations of a healthy and thriving community. This article delves into the legal provisions in India aimed at combating domestic violence, shedding light on the rights of victims and the responsibilities of law enforcement agencies. 

What is Domestic Violence?

Domestic violence refers to one person seeking to gain power and control over another through physical, emotional, sexual, verbal, or economic means. It is a form of violence that occurs within the context of a domestic setting, such as a marital or cohabiting relationship. Domestic violence can manifest as physical assaults, threats, intimidation, coercion, isolation, and manipulation, causing significant harm to the victim’s physical, psychological, and emotional well-being. It also includes child abuse, honor-based abuse such as female genital mutilation, honor killing, and all other forms of abuse by an intimate partner. Domestic violence is a violation of human rights and reflects the unequal power dynamics and gender-based inequalities that persist in society. 

In India, matters related to domestic violence are governed by the Protection of Women from Domestic Violence Act, 2005. Section 3 of the Protection of Women from Domestic Violence Act provides the definition of Domestic violence, which states that “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it,

1. Harms or injures or endangers the health, safety, life, limb, or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or
2. Harasses, harms, injures, or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
3. Has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clauses (a) or (b); or
4. Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

Through this, the question “What is covered in domestic violence?” can easily be answered that is: Domestic violence generally includes Physical (beating, rape), Mental, Emotional, Economic, or Financial abuse.

What are the objectives of the Domestic Violence Act, 2005?

The Protection of Women from Domestic Violence Act was enacted by the Parliament on September 13, 2005, and extends to the whole of India. The main objective of enacting this Act is “to provide for more effective protection of the rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.” Some other objectives of the Act include,

• To prevent domestic violence by creating awareness about the issue and promoting a societal shift towards non-violence.
• To ensure that those who commit acts of violence are brought to justice and face appropriate legal consequences.
• To establish a comprehensive legal framework to address domestic violence that provides survivors of domestic violence with legal remedies, protection orders, and access to support services.
• To provide medical assistance, counseling, shelter, and rehabilitation facilities to help survivors rebuild their lives and regain their independence.

Eligibility for remedies under the Constitution

The remedies under the Domestic Violence Act of 2005 can be availed by an aggrieved person whereas the meaning of the same is mentioned under Section 2(a) of the Act. It means “any woman who is, or has been, in a domestic relationship with the respondent (perpetrator) and who alleges to have been subjected to any act of domestic violence by the respondent (perpetrator).” If the woman is no longer in a relationship with the perpetrator, the remedies under the Act can still be pursued by her. 

Scope of the Domestic Violence Act of 2005

The Domestic Violence Act, 2005 has a wide scope and applies to all women who have experienced domestic violence, regardless of their marital status. Along with this, the Act also highlights the definition of respondents or perpetrators under Section 2(q), meaning “any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband of the male partner.” On the contrary, the Supreme Court in the Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & ors. case stated that the word ‘relatives’ in Section 2(q) of the Act does not specify only male relatives. 

It observed “It is true that the expression “female” has not been used in the proviso to section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.” the bench further ruled that “In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.” 

Important provisions of the Domestic Violence Act, 2005

Some of the important provisions of the Act are mentioned as follows:

Section 5: Duties of Police Officers, Service Providers, and Magistrate

This section mandates Police Officers and Magistrates to inform the aggrieved person of her right to make an application to obtain relief by way of a custody order, a protection order, a residence order, a compensation order, an order for monetary relief, and others. It also gave the right to file a complaint against the respondent under Section 498A of the Indian Penal Code. Section 5 of the Act mandates Police Officers, Service Providers, and Magistrates to promptly respond to complaints of domestic violence and facilitate the process of obtaining protection orders. It emphasizes the importance of sensitizing law enforcement agencies and judicial authorities about the Act's provisions.

Sections 6 and 7: Duties of Shelter Homes and Medical Facilities

According to Section 6 of the Act, if an aggrieved person or a Protection Officer or a Service Provider, on her behalf, requests the person in charge of the shelter homes to provide shelter to her then they should provide shelter to her. Section 7 of the Act states that if an aggrieved person or a Protection Officer or a Service Provider, on her behalf, requests the person in charge of the medical facilities to provide any medical aid to her then they should provide medical aid to her in the medical facility. 

Section 8: Appointment of Protection Officers

This section empowers the government to appoint Protection Officers in each district and notify the area or areas within which they should exercise the powers given to them. As per Section 8(2) of the Act, “the Protection Officers shall as far as possible be women and shall possess such qualifications and experience as prescribed.” These officers assist and support survivors of domestic violence by acting as a link between them and the court. 

Section 9: Duties and Functions of Protection Officers

• To assist the Magistrate in the discharge of his functions under this Act.
• To make a DIR (Domestic Incident Report), “a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person,” to the Magistrate.
• To make an application, as prescribed in the Act, to the Magistrate, if the aggrieved person seeks a protection order.
• To ensure that legal aid is provided to the aggrieved person under the Legal Services Authorities Act, 1987.
• To list out all the service providers providing various services such as legal aid, counseling, shelter homes, and medical facilities to the aggrieved person.
• To provide shelter home and medical aid to the aggrieved person.
• To make sure that benefits under Section 20 of the Act are provided to the aggrieved person. 

The duties performed by Protection Officers are controlled by the Magistrate.

Section 10: Service Providers

This section recognizes the vital role played by various institutions and organizations in providing support and assistance to survivors of domestic violence. It mandates the government to notify and designate service providers, including medical facilities, counseling centers, and shelters, to extend necessary services to survivors. Service providers are required to comply with the provisions of the Act and cooperate with Protection Officers in facilitating medical examinations, counseling, shelter, and other support services. This section ensures that survivors have access to a network of service providers to meet their specific needs and aid in their recovery and protection.

Section 11: Duties of Government

The Central and State Governments should take appropriate measures to ensure that proper periodic sensitization and awareness training on the issues addressed by this Act are provided to the Central and State Governments officers. Moreover, awareness regarding the provisions of the Act should be given at regular intervals to the public via television, print media, and radio. Also, Governments should also ensure effective coordination between services provided by the concerned Ministries and Departments.

Section 12: Application to Magistrate

Under this provision, the aggrieved person on any other person, Protection Officer or Service Provider, on her behalf can file an application to the Magistrate claiming relief under the Protection of Women from Domestic Violence Act, 2005. The application should be filed in the same format including all necessary details as prescribed by the Act. Along with this, it is the duty of the Magistrate to fix the first date of hearing within 3 days from the date of receipt of the application by the Court and the same should be disposed of within a period of 60 days from the date of its first hearing. 

Section 17: Right to reside in a shared household

This Section states that “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.” It also illustrates that the respondent cannot evict or exclude the aggrieved person from the shared household or any part of it.

Section 18: Protection Orders

According to this Section of the Act, protection is provided to the aggrieved person by prohibiting the respondent from entering the place of employment of the aggrieved person, committing any act of domestic violence, attempting to communicate either personal, oral, written, telephonic, or electronic contact with the aggrieved person, causing violence to aggrieved person’s relatives or any other known person, and committing any other act of violence. 

Section 19: Residence Orders

This section addresses the issue of a woman's right to reside in her shared household, even if she does not have any legal ownership or title. It prohibits the eviction of the woman from her shared household and grants her the right to reside there. It also enables the Judicial Magistrate to 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.” 

Section 20: Monetary Reliefs

This section recognizes the economic aspect of domestic violence and provides for monetary relief to meet the expenses incurred by the survivor, including medical expenses, loss of earnings, and damages for mental trauma. It seeks to alleviate the financial burden and empower survivors to rebuild their lives.

Section 21: Custody Orders

It recognizes the importance of ensuring the safety and well-being of the aggrieved person (the survivor) and any children involved in cases of domestic violence. This Section empowers the court to pass custody orders in favor of the aggrieved person, granting temporary custody of the children to her if necessary. The court considers the best interests of the child while making such decisions and may impose conditions or restrictions on the visitation rights of the respondent (the accused). Section 21 aims to protect children from witnessing or experiencing further harm and to provide a safe environment for their upbringing.

Section 22: Compensation Orders

According to this Section, compensation orders are passed by the Magistrate in favor of the aggrieved person. It states that “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.”  

Penalty or Punishment

• Section 31 of the Domestic Violence Act, 2005: It deals with the ‘Penalty for breach of protection order by respondent’. If the respondent breaches the protection order, he/she is punished with imprisonment for a term which may extend to 1 year and with a fine which may extend to 20,000 rupees or both. 
• Section 28 of the Domestic Violence Act, 2005: It states that the proceedings arising under this Act should be governed by the provisions of the CrPC (Code of Criminal Procedure).
• Section 498A of the Indian Penal Code: It deals with the act of cruelty against women by their husband or their relatives. As per this Section, “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.”   

Related Case Laws

• Arvind Singh vs. State of Bihar (April 26, 2001)
• Chanmuniya vs. Virendra Kumar Singh Kushwaha (October 07, 2010)
• V. D. Bhanot vs. Savita Bhanot (February 07, 2012)
• Indra Sarma vs. V.K.V. Sarma (November 26, 2013)
• Hiral P. Harsora and Ors. vs. Kusum Narottamdas Harsora and Ors. (October 06, 2016)
• Satish Chander Ahuja vs. Sneha Ahuja (October 15, 2020)

Conclusion

Domestic violence is a critical concern that demands attention and action. In conclusion, it must be added that the domestic violence term is not limited just to physical abuse, it also includes other forms of domestic abuse such as economic, emotional, socio-economic, and financial abuse as well. Every person has self-respect and it should be preserved by the people around them. By understanding the legal landscape surrounding domestic violence, one can appreciate the ongoing efforts to safeguard the rights and dignity of those affected and work toward a society where such violence has no place.