Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. It was brought into force by the Indian government from 26 October 2006. The Act provides for the first time in Indian law a definition of "domestic violence", with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse. It is a civil law meant primarily for protection orders and not for meant to be enforced criminally.

This article is about Indian law. For other related topics, see Outline of domestic violence.

Protection of Women from Domestic Violence Act of 2005
Parliament of India
CitationAct No. 43 of 2006
Enacted byParliament of India
Assented to13 September 2005
Commenced26 October 2006
Status: In force
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Definitions

The Protection of Women from Domestic Violence Act 2005 different from the provision of the Penal Code - section 498A[1][2] of the Indian Penal Code - in that it provides a broader definition of domestic violence.[3]

Domestic violence is defined by Section 3 of the Act as[4] "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 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 clause (a) or clause (b); or
  4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person."

The Act goes on, through the section Explanation 1, to define "physical abuse","sexual abuse", "verbal and emotional abuse" and "economic abuse".[4]

Scope

Primarily meant to provide protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives, the law also extends its protection to women living in a household such as sisters, widows or mothers. Domestic violence under the act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic.[3] Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.


Application to the magistrate

An application regarding domestic violence can be presented to the magistrate seeking one or more reliefs mentioned in sections by:

  • The aggrieved person,
  • Protection officer on behalf of aggrieved person
  • Any other person on behalf of aggrieved person

Jurisdiction of court

The first class magistrate court or metropolitan court shall be the competent court within the local limits of which

  • The aggrieved person permanently or temporary resides or carries on business or is employed
  • The respondent permanently or temporally resides or carries on business or is employed or
  • The cause of action arises.

Any order made under this Act shall be enforceable throughout India While disposing application the magistrate shall take in to consideration any domestic incident report received from the protection officer or service provider. The relief sought under this section includes the issuance of order of payment or compensation or damages without prejudice to the right of such person to institute suit for compensation or damages for injuries caused by the act of domestic violence. If the magistrate is satisfied that an application prima facie discloses that the respondent is committing or has committed an act of domestic violence or there is a likelihood of such violence, he may grant following exparte interim order against the respondent on the basis of affidavit of the aggrieved person. Magistrate can issue different orders such as Protection order, residence order, monetary relief, custody order or compensatory orders as per the circumstances of the case.

In case of an earlier decree of compensation or damages passed by any other court, in favour of aggrieved person, the amount if any paid shall be set off against the order of amount payable under this act. The application to the magistrate shall be as nearly possible to the formats prescribed under this Act and Rules. After receiving the application the Magistrate shall fix the date of first hearing within 3 days and the magistrate shall endeavor to dispose of every application be within a period of 60 days of the first hearing. The notice of the date of hearing shall be given by the magistrate to the protection officer who shall get it served to the respondent. At any stage of the application, the magistrate may order, counselling of the respondent or aggrieved person either singly or jointly with any member of service provider. The magistrate may secure the service of suitable person preferably a woman including a person engaged in the welfare of women for assisting the court in the discharge of its function. If the circumstance of the case so warrant and if either party so desires the magistrate may conduct the proceedings on camera.

Protection orders

After giving an opportunity to the aggrieved person and respondent of being heard and the magistrate is satisfied that a prima facie case of domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person prohibiting the respondent from the following acts such as Committing any acts of domestic violence

  • Aiding or abetting in the act of domestic violence
  • Entering the place of employment of aggrieved person or if the person is child, its school or any other places
  • Attempting to communicate in any form including personal, oral or written, electronic or telephonic contact
  • Alienating any assets, operating bank account, bank locker held or enjoyed by both parties jointly or singly by the respondent including her stridhan
  • Causing violence to the dependents, or other relative or any other person who give the assistance to the aggrieved person or
  • Committing any other acts specified by the protection officer

Residence orders

The magistrate being satisfied that a domestic violence has taken place, pass residence order-

  • Restraining the respondent from dispossessing or in any manner disturbing the peaceful possession of the shared household
  • Directing the respondent to remove himself from the shared household
  • Restraining the respondent or his relatives from entering any portion of the shared house hold where the aggrieved person lives
  • Restraining the respondent from alienating or disposing of the shared house hold or encumbering it
  • Restraining the respondent from renouncing his right in the shared household[5]
  • Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her or to pay rent for the same if the circumstances so require.

No order shall be made against women under this section. Magistrate may impose additional condition and pass any other order to protect the safety of the aggrieved person or her child. Magistrate is also empowered to order direction the concerned station house officer of the police station to give protection to the aggrieved person to assist in implementing his order. Magistrate may also impose on the respondent to direct stridhan or any other property or valuabale security she is entitled

Monetary relief

The magistrate may direct the respondent to pay monetary relief to meet the expenses of the aggrieved person and any child as a result of domestic violence and such relief include

  • Loss of earnings
  • Medical expenses
  • Loss caused due to destruction or removal or damage of any property
  • Pass order as to maintenance for the aggrieved person as well as her children if any

Including the order under or in addition to an order of maintenance under section 125 criminal procedure code or any other law.

The quantum of relief shall be fair reasonable and consistent with the standard of living to which the aggrieved person is accustomed to. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent.

Custody orders

Magistrate can grant temporary custody of any child or children to the aggrieved person or to the person making application on her behalf and specify the arrangements for visit of such child by the respondent. Magistrate can refuse the visit of such respondent in such case if it may harmful to the interest of the child.

Compensation orders

Magistrate may pass order directing the respondent to pay compensation to the petitioner for injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.

Copies of orders passed by the magistrate shall be supplied free of cost to the parties concerned and police officer and service provider

Any relief available under this Act may also be sought in any other legal proceedings before a civil court, family court or criminal court and such relief may be sought in addition to and along with relief sought for in suit, or legal proceeding before civil or criminal court.

Criticism

Some have criticized the law as having too little force, serving chiefly as a civil, rather than criminal, law—requiring a further offense by the accused respondent (such as violating a Protection Order issued under this law) before triggering criminal law sanctions against the respondent (such as arrest and imprisonment). There are several gaps in the implementation of laws.[6] However, groups involved in drafting the law believed this would provide more rapid and flexible relief for the victim.[7][8]

Men's organizations such as the Save Indian Family Foundation have opposed the law, arguing that it might be misused by women during disputes.[3][9] It has been noticed by women's groups that such claims emerge only when special provisions are made for the marginalised.

Renuka Chowdhury, the Indian Minister for Women and Child Development, agreed in a Hindustan Times article that "an equal gender law would be ideal. But there is simply too much physical evidence to prove that it is mainly the woman who suffers at the hands of man".[10]

Former Attorney General of India Soli Sorabjee has also criticized the broad definition of verbal abuse in the act.[11]

According to the then President of India, Pratibha Devisingh Patil, "Another disquieting trend has been that women themselves have not been innocent of abusing women. Some surveys have concluded that 90 percent of dowry complaints are false and were registered primarily to settle scores. It is unfortunate if laws meant to protect women get abused as instruments of oppression. The bottom-line therefore, is the fair invocation of legal provisions and their objective and honest implementation."[12]

See also

References
  1. "498A A Must Watch Documentary".
  2. "498A A Must Watch Documentary".
  3. Datta, Damayanti (4 December 2006). "The new laws of marriage". India Today. Retrieved 29 March 2013.
  4. "Archived copy" (PDF). Archived from the original (PDF) on 1 March 2013. Retrieved 19 April 2013.CS1 maint: archived copy as title (link)
  5. S.R. Batra v. Taruna Batra, 136 (2007) DLT 1 (SC): 1 (2007) DMC 1 (SC): 2007 (1) UJ 2 (SC). Case no. 5837; Civil appeal. C.A. No.-005837-005837 - 2006. Diary no. 5318-2005. Bench: S.B. Sinha & Markandey Katju. Supreme Court of India. Judgement regarding shared household (original): "It is well settled that any interpretation which leads to absurdity should not be accepted. Learned counsel for the respondent Smt Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a ‘shared household’. No doubt, the definition of ‘shared household’ in Section 2(s) of the Act ... we have to give it an interpretation which is sensible and which does not lead to chaos in society". Judgement regarding shared household (alternate): "In section 2(5) of the Protection of Women from Domestic Violence Act, 2005 the court has to give an interpretation which is sensible and which does not lead to chaos in society". Date of Judgement: 15 December 2006.
  6. Shalu Nigam (2019) Women and Domestic Violence Law in India: A Quest for Justice https://www.amazon.in/Women-Domestic-Violence-Law-India/dp/1138366145
  7. Pandey, Geeta, et. al., BBC News, "100 Women 2014: Violence at home is India's 'failing'", 29 October 2014, BBC News
  8. Hornbeck, Amy; Bethany Johnson; Michelle LaGrotta; & Kellie Sellman; "The Protection of Women from Domestic Violence Act: Solution or Mere Paper Tiger?", Loyola University Chicago International Law Review, Volume 4, Issue 2, Spring/Summer, 2007, pp.273-307, Loyola University, Chicago (also online at: )
  9. Gupta, Monobina (27 October 2006). "Malevolence for women's law – Men go to PM against female 'terrorist activity'". The Telegraph, Calcutta. Archived from the original on 16 October 2012. Retrieved 28 March 2013.
  10. Sandhu, Veenu (5 November 2006). "Men running scared now". Hindustan Times. Archived from the original on 10 October 2013. Retrieved 4 October 2013.
  11. Sorabjee, Soli (5 November 2006). "SUNDAY DEBATE: Is verbal abuse domestic violence? No". The Times of India. Retrieved 4 October 2013.
  12. "Speech of the Hon'ble President of India, at the National Conference of Lady Lawyers and Lady Teachers, at Yavatmal". Press Information Bureau, Government of India. Retrieved 4 October 2013.
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