India has one of the major numbers of domestic violence application, especially during the period of Covid-19 pandemic. People were restricted to their homes and many lost their jobs, which has led to increase in the rate of domestic violence among the Indian households. For preventing these kinds of situations and granting rights to women, India has adopted the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights (UDHR). Both these conventions focus on providing equal rights to men and women and make sure they are not subjected to any kind of discrimination.
The Constitution of India also guarantees the same under Article 15, that no person should be discriminated on the basis of their caste, colour, creed, sex, place of birth etc. Article 15 (3) provides the legislation with the power to make any specific provision for the upliftment of women and children. In exercise of this provision, the government enacted the Protection of Women from Domestic Violence Act in 2005.
Definition of Domestic Violence
The term “domestic violence” is inclusive of all kinds of abuse or threat that is caused to a woman in her marital household by the husband or his relatives. It includes all forms of actual abuse or even threat of abuse done either physically, verbally, sexually, emotionally or economically, which can harm or cause injury, endanger the safety, health, well-being (physical and mental) or limb of the aggrieved person. The definition of domestic violence has a wide ambit and also incorporates child sexual abuse, harassment caused to women or her relatives by the unlawful dowry demands.
Whenever a woman believes, that she is aggrieved from any kind of domestic violence and believes that it is likely to be committed against her, then she may file a complaint or give the information to the respective protection officer for getting protection against such domestic violence. The aggrieved person may inform the Protection Officer either in writing or orally.
If the woman is unable to reach out to the Protection Officer, then she may even inform the any service provider. A service provider is a registered voluntary association or a registered company, wherein the main aim of the company is to safeguard the rights and interests of women with the help of legal means. They are known as the service providers.
Rights for woman under the Act
There are many rights and reliefs granted to women under the Protection of Women from Domestic Violence Act 2005, some of the common rights that the women should know about are as follows-
- Right to reside in a shared household– the Act states that the woman has right to reside in her matrimonial or shared household, even if she doesn’t have any rights or title in the household. The Court can allot her a part of the house which can be used for her personal use. The Court usually passes a residence order for securing her right of residence in the household.
The Apex Court has recently passed a judgment in 2021 in the case of Satish Chander Ahuja v. Sneha Ahuja in favour of the aggrieved party that an estranged wife can claim for right to reside under shared household which belongs to her husband or his relatives. The Supreme Court overruled its prior judgment laid down in SR Batra v. Taruna Batra wherein the wife could not claim right of residence from the property of her husband’s relatives like house in the name of mother in-law or father in-law.
- Right to receive assistance and protection– when a woman is victim of domestic violence, she has the right to obtain the services and assistance from Police officers, protection officer, shelter homes, service providers as well as she can file a complaint under Section 498A of the IPC against her husband and his relatives for subjecting her to cruelty.
- Right to issuance of orders– the aggrieved can get the following orders issued in her favour once the prima facie of domestic violence is established-
- Protection order- the court may pass a protection order to prevent the accused or respondent from committing any further acts of domestic violence such as deter him from entering the workplace, school or any other place where the aggrieved person has visits regularly, from communicating with her, alienating the assets used by both parties or causing violence to her relatives etc.
- Residence order- this order is passed to ensure that the aggrieved is not homeless, her possessions are not disturbed, if the shared household is not alienated, then she is provided with substitute accommodation by the respondent if she requires. If the woman further wishes then the respondent is removed from the shared household and he and his relatives are not permitted to enter the area allotted to her. Although, an order to remove oneself from the shared household cannot be passed against any woman.
- Custody order- this order grants temporary custody of the child or children to the aggrieved person or any other person making application on her behalf. The order may suggest arrangements for visiting the child or children by the respondents or it may also prohibit such visit if it is harmful for the child.
- Monetary relief- the respondent can be held liable for all the expenses incurred and losses suffered by the woman and her child due to violence committed against her. The relief includes medical expenses, loss or damage of property, loss of earnings, payments of maintenance towards the aggrieved and her child.
- Compensation orders- the respondent can be ordered to pay compensation and damages for causing injuries to the aggrieved person as result of the domestic violence by the respondent. These injuries also include mental torture and emotional distress caused to her.
- Interim and ex parte orders- such orders can be passed by the Court, if the court deems fit and proper on commission of domestic violence or likelihood of such commission of an act by the respondent. These orders are passed when the aggrieved person files an affidavit against the Respondent.
- Right to obtain from other suits and legal proceedings– the aggrieved person can obtain any other reliefs granted by other suits and legal proceedings initiated before the civil court or family court or criminal court.
Restrictions imposed on the Respondent
There are certain liabilities and responsibilities imposed on the respondent by the Court while filing any or all of these above-mentioned orders. Some of the regular restrictions imposed are-
- The respondent is subject to certain limitations as mentioned in the Protection and Residence orders issued against him.
- The respondent can be made responsible for providing financial relief to the aggrieved and her children and even liable for paying compensation and damages as instructed by the Court in the Compensation order.
- The respondent has to follow the arrangements stated by the Court with respect to custody of the child or children of the aggrieved person as mentioned in the Custody order.
- The Act shall not allow any female relative of the husband or male partner to file a complaint against the wife or female partner.
Procedure on How to file domestic violence application
The process of filing domestic violence complaint with the police and court’s duty regarding the same is as follows-
- When the aggrieved person is inflicted by domestic violence, either she or any other witness of the offence can approach the police officer, protection officer or service provider or can also file a complaint directly with the Magistrate for obtaining quick relief order under the Act.
- When the aggrieved person informs the protection officer regarding the domestic violence, the protection officer should get the aggrieved medically examined if she has sustained some bodily injuries.
- The aggrieved can also ask for medical facility or medical aid from the protection officer.
- Once the medical reports come, then it has to be submitted to the respective Magistrate by the Protection officer and also to the concerned police station. The protection officer has to prepare a report describing the domestic incident and submit the same to the Magistrate and sent a copy of the same to the service provider.
- The court is required to take cognizance of the complaint or report and should institute a hearing within 3 days of filing of the complaint.
- The Magistrate will give a notice of the date of hearing to the Protection Officer which needs to be served to the respondent and other persons stated by the Magistrate within a period of 2 days maximum or any further reasonable time as mentioned and permitted by the Magistrate.
- The court is required to dispose of the case within 60 days from the date of first hearing.
- In order to establish the prima facie of the offence committed, the court can use the sole testimony of the aggrieved person against the respondent.
- Once the court has established the offence and finds the complaint genuine, then the Court may pass a protection order which shall be in force till the aggrieved person applies for discharge of the order. On receiving the receipt of application from the aggrieved person or its relatives, the Magistrate is content with the circumstances, which so require then it may alter, modify or revoke the order after recording the reasons in writing.
- Along with this complaint, the aggrieved may also file a complaint under Section 498A of the Indian Penal Code 1860 which prescribes punishment for the offence of matrimonial cruelty committed by husband or his relatives by making unfair dowry demands.
Hence, it can be inferred that women have been subjected to cruelty and many forms of domestic abuse in their matrimonial household, and it is high time that they fight against these kinds of abuse and harassment with the help of these legal reliefs. There are many provisions available for the aid of woman, but due to lack of awareness they are not able to exercise their rights.
It is observed that ignorance often leads to further suppression and harassment whereas many times knowledge of the law leads to misuse of it. This means that our law has to be air tight, such that ones who are in actual need of relief and rights should only be able to exercise it and get the most from it, while the fake complaints should be penalised for harassing the respondent party. Thus, women from rural areas and lower income groups should be made aware of their rights and with the technological advancement, this problem can be solved if used in the appropriate manner.
This article is authored by Rhea Banerjee.