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Domestic Violence[1]
QUESTION BANK
Q.1. Explain provisions of Domestic Violence Act.
Q.2. What is Domestic Violence? What are the rights conferred upon woman under the Domestic Violence Act 2005.
SHORT NOTES
Q.1 Protection Officer
Q.2 Domestic Violence.
SYNOPSIS
I] Object of the Protection of Woman from Domestic Violence Act. 2005
II] Definition and meaning of Domestic Violence
III] Reliefs under the Act.
1) Protection orders (S. 18)
2) Residence order (S. 19)
3) Monitory reliefs (S. 20)
4) Custody Orders (S. 21)
5) Compensation Order (S. 22)
Notes
Protection Officer (S. 8)
I] Definition
II] Duties
I] Object of the Protection of Woman from Domestic Violence Act. 2005:-
Offences against women are rampant, specifically in domestic relations. The Protection of Women from Domestic Violence Act 2005[2] was passed to protect women’s rights under the Constitution effectively. The women who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto are protected by the Act.
II] Definition and meaning of Domestic Violence:-
- 3 of the Act defines ‘Domestic Violence’ as follows-
For the purposes of this Act, any act, omission, commission or conduct of the respondent shall constitute domestic violence in a case it:-
(a) harms, 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
(b) harasses, harms, injuries or endangers the aggrieved person
-with a view to coercing her or any person related to her
-to meet any unlawful demand for any dowry or other property or valuable security; or
(c) 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
(d) otherwise injures or causes physical or mental harm to the aggrieved person.
Explanation I.– For the purposes of this section, –
(i) “Physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “Sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman;
(iii) “verbal and emotional abuse” includes:-
(a) insults, ridicule, humiliation, name calling and insults or ridicule, especially with regard to not having a child or a male child, and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes:-
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom, whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity, including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets, whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship, including access to the shared household.
Explanation II – For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.
III] Reliefs under the Act[3]:-
The Act from Ss. 18 to 22 provides for different types of reliefs as follows-
1) Protection orders[4] (S. 18):-
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form whatsoever with the aggrieved person, including personal, oral, written, electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who gives the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
2) Residence order[5] (S. 19)
The Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order –
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate, or
(f) directing the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same if the circumstances so require:
‘Provided that no order under clause (b) shall be passed against any person who is a woman.’
(2) The Magistrate may impose any additional conditions or pass any other direction he may deem reasonably necessary to protect or provide for the safety of the aggrieved person or any child of such an aggrieved person.
(3) The Magistrate may require the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-sec. (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-sec. (1), sub-sec. (2) or sub-sec. (3) The court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-sec. (1) the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments regarding the parties’ financial needs and resources.
(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may 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 to.
3) Monitory Reliefs (S. 20)[6] :-
The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence, and such relief may include, but is not limited to, –
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person and
(d) the maintenance for the aggrieved person and her children, if any, includes an order under or in addition to an order of maintenance under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-sec. (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-sec. (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-sec. (1) the Magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
4) Custody Orders (S. 21):-
Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for a protection order or for any other relief under this Act, grant temporary custody of any child or children of the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for the visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such a visit.
5) Compensation Order (S. 22)[7]:-
In addition to other reliefs as may be granted under this Act, 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.
To get the above-mentioned reliefs or any of them, the aggrieved person has to file an application under S. 12 of the Act. Protection Officer or any other person may present such an application on behalf of the aggrieved person.
“Aggrieved person” means ‘any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent (S. 2(a))’.
“Domestic relationship” means a relationship between two or more persons who live, or have at any point of time, lived together in a shared household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family (S. 2 (f)).
The concerned magistrate may pass such interim orders as he deems just and proper (S. 23).
Moreover, any relief available under Ss. 18 to 22 may also be sought in any legal proceeding before a civil court, family court or criminal court affecting the aggrieved person and the respondent, whether such a proceeding was initiated before or after the commencement of this Act (S. 26).
There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent (S. 29).
NOTES:-
Protection Officer[8] (S. 8):-
The State Government shall, by notification, appoint such several Protection Officers in each district as it may consider necessary and notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him or under this Act.
As far as possible, the Protection Officers shall be women and possess such qualifications and experience as prescribed.
I] DEFINITION:-
- 2 (n) of the Act provides that “Protection Officer” means an officer appointed by the State Government under sub-section (1) of S. 8
II] DUTIES:-
Protection officer is a very important post created by the Act to assist and protect an aggrieved woman. It shall be the duty of the Protection Officer:-
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have taken place;
(h) to ensure that the order for monetary relief under Sec. 20 is complied with and executed in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.
The Protection Officer shall be under the control and supervision of the Magistrate and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
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[1] कौटुंबिक हिंसा / घरगुती अत्याचार
[2] for the sake of brevity called as ‘the Act’ कौटुंबिक हिंसाचार/घरगुती अत्याचारां पासुन महिलांचे संरक्षण कायदा
[3] कायदयाअंतर्गत महिलांना दिलेले उपाय / अधिकार
[4] संरक्षणासाठी आज्ञा
[5] वास्तव्याचा / राहण्याचा अधिकार
[6] अर्थिक मदत
[7] नुकसनाभरपाईची आज्ञा
[8] संरक्षण अधिकारी