Domestic violence Act: Law Against Unbearable Atrocities Involving Women

Domestic violence involves inflicting physical, verbal, emotional, psychological harm, etc., on the opposite gender (i.e. women).

Women get abused in many forms, and these acts of continuous abuse have a severe mental effect on women, children and other family members. These forms of abuse get defined under section 3 of The protection of women from Domestic violence (PWDV) Act, 2005.

These are:-

1. Physical abuse
2. Sexual abuse
3. Verbal abuse
4. Emotional abuse
5. Economic abuse

Domestic violence gets defined in section 3 of the protection of women from domestic violence act, 2005.

The act states domestic violence as the conduct of the respondent in case it:-

1. harms or endangers the health, life, safety, limb or well‑being, of the aggrieved person or tends to do so and includes causing physical, sexual, verbal, emotional and economic abuse; or
2. harasses, injures, harms, 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 a threatening effect on the aggrieved person or any person related to the women by any conduct mentioned in clause (a) or clause (b); or
4. otherwise injures or causes harm, whether mental or physical, to the aggrieved person.

Domestic Violence Act

The 2005 Protection of Women from Domestic violence Act consists of 37 sections in 5 chapters.

• Chapter I consist of its year of establishment with its jurisdiction and definitions of legal terms under this act.
• Chapter II consists of the definition of domestic violence.
• Chapter III consists of the powers and duties of the protection officers, service providers, etc.
• Chapter IV consists of the procedure for obtaining orders of relief.
• Chapter V consists of miscellaneous provisions.

The act’s primary objective included protecting women(whether wife or live-in partner) against the atrocities by the men or the live-in partner of the opposite gender.

Domestic violence under the act means abuse like sexual abuse, physical and mental abuse, economic abuse, verbal abuse, and emotional abuse.

The law ensures the protection of women against unlawful dowry demands resulting in harassment of women or their relatives.

In addition, the PWDV act, 2005 (Protection Of Women from domestic violence act) ensures protection to mothers, daughters, sisters, or single women living with the abuser etc.

The PWDV act, 2005 also ensures women’s right to secure housing. The act provides women with the right to reside in the shared household or matrimonial household, whether she has any name on the property or not.

The right gets secured by the residence order passed under section 19 of this act.

• The court can also pass a protection order if it is satisfied on being prima facie that domestic violence has taken place to ensure the protection of the aggrieved party under section 18 of the PWDV act.

  So, it prohibits the respondent from committing any act of domestic violence or abetting it against dependant or relatives of the aggrieved person.

• The act forbids respondents from entering the place of employment or education of the prescribed person or from attempting to contact the aggrieved person personally, orally, in written form, or through telephonic or electronic means.
• Section 18 also prohibits the respondent from alienating assets operating bank lockers and bank accounts having titles or rights of both parties.
• The PWDV Act prescribed provision for appointment of a protection officer, Ngo’s, to assist the aggrieved party and provide legal aid, safe shelter, medical examination, etc
• This act in chapter II prescribed the duties and functions of the police officers, service providers, shelter homes, medical facilities, protection officers and magistrates.

The duties and functions of protection officers get mentioned under section 9 of the PWDVA act, which includes the following:

1. To assist the magistrate in the discharge of this act
2. To prepare a domestic investigation report (DIR) in prescribed form upon receiving a domestic violence complaint.

   Then forward its copies to the police officer in charge of the police station under whose local limits the domestic violence incident allegedly occurred and to the service providers.

3. To make an application to the magistrate if the aggrieved person claims relief by issuing a protection order.
4. Ensure that the aggrieved person gets legal aid free of cost under the legal services authority act, 1987.
5. To maintain a list of all the service providers providing free legal aid, safe shelter homes, and medical facilities in the local area within the magistrate’s jurisdiction.
6. To make available a shelter home and forward the copies of the report of having the aggrieved person in a shelter home to the police station and the magistrate in the jurisdiction.
7. Medical examination of the aggrieved person if sustained bodily injuries. Then forward copies of the medical report to the police station and magistrate in the jurisdiction the domestic violence allegedly took place.
8. Ensure that the order for monetary relief gets obeyed and executed under section 20 of the Code of criminal procedure, 1973 and performs such duties as prescribed.

The protection officer appointed under PWDV Act’s section 8 shall be under the magistrate’s control and supervision. And perform the duties on him by the magistrate and the government.

Under section 20 of the act, it provides provisions for monetary relief to the aggrieved person to meet the needs and losses incurred in medical expenses, loss of earnings and damage caused by destruction,

Domestic violence is a cognisable and non-bailable offence. So, the domestic violence act provides punishment for a breach of a protection order as imprisonment up to one year or with a fine that may extend to twenty thousand rupees or both.

Penalty for not discharging duty by a protection officer is similar punishment under this act.

Domestic Violence Laws in India

Domestic violence in India gets governed by many laws like the Indian penal code,1860, the dowry prohibition act, 1961, the PWDV act, 2005, etc.

Section 498A,1860

The Indian Penal code’s section 498A deals with a woman subjected to cruelty by her husband and relatives. The section also prescribed punishment which is imprisonment of up to three years and a fine.

Section 304B, 1860

The Indian Penal code’s section 304B deals with dowry death. It states

“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death”.

The punishment for dowry death is imprisonment for seven years or more, extending to imprisonment for life.

The primary objective of the dowry prohibition act, 1961 is to prohibit the practice of dowry.

It defines dowry under section 2 of the dowry prohibition act. Dowry incorporate any property or valuable security given or agreed to give directly or indirectly-

1. By one party to another party, or
2. by parents or any other person of one party to parents or any other person of another party.

The offence under this act will be cognisable and be bailable and non-compoundable.

The burden of proof is on the accused to prove that he had not committed a crime under those sections.

• The punishment prescribed under section 3 of this act for giving or taking dowry will be imprisonment minimum of five years and fine not less than 15 thousand rupees,
• And under section 4 of this act, the punishment for demanding dowry will be imprisonment not less than six months and up to two years and a fine extending to ten thousand rupees.

  In exceptional circumstances, if the court deems fit can impose a judgement of imprisonment for less than six months

  Any contract for giving or taking of dowry will be void under section 5 of the dowry prohibition act, 1961.

Now, the PWDV act, 2005 safeguards women in the household from abusive partners.

The law protects married women and ensures protection for women in live-in relationships and other women family members like mothers, sisters, grandmothers, etc.

Case Study Involving Domestic Violence Act

This question arose many times, “What is the status of a shared household and which property doesn’t come under the definition of shared household under section 2(s) of PWDVA?”

S.R. BATRA Vs. SMT. TARUN BATRA 2007 (3) SCC 169

In a recent case of S.R. BATRA Vs. SMT. TARUN BATRA 2007 (3) SCC 169, the supreme court held that the definition of the shared household in section 2(s) of the PWDVA, 2005 is not perfectly defined and is required to be interpreted sensibly.

The court held that the wife is entitled to the shared household under section 17(1) of the act, and she can claim a right to it.

A “shared household” means “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

In Batra’s case, the property in question neither belonged to the husband nor was he taken on rent nor a husband’s joint family property.

It was the exclusive property of the husband’s mother and not a part of a shared household.

Often it’s noticed that there’s conflict about the relationship nature in terms of marriage when it’s about a live-in relationship or the status of a keep. So, a partner in a live-in relationship can claim the benefits of the provisions of the women protection from the PWDV act,2005 or not.

D. Velusamy vs D. Patchaiammal, (2010) 10 SCC 469

In a recent case of D. Veluswamy vs D. Patchaiammal, (2010) 10 SCC 469, the apex court enumerated five ingredients of a live-in relationship as follows:-

1. Both the parties must behave like husband and wife. So, they should get recognised as husband and wife in society.
2. The couple must be of a valid legal age of marriage
3. They should qualify to enter into marriage, e.g. None of the partners should have a souse living when entering into a relationship.
4. They must have voluntarily lived together for a significant period
5. They must have lived together in a household

The supreme court also held that all live-in relationships would not amount to a relationship like marriage. These ingredients need to be satisfied and proved by evidence to get the benefit of the PWDV act.

In this case status of a ‘keep’ was also defined as if a man has a keep whom he maintains financially and uses mainly for sexual purposes or as a servant would not be a relationship like marriage.

Apex court also referred to the term “palimony”, which means a woman who has lived with a man for a substantial period and later deserted by him is entitled to maintenance.

Now, an estranged partner or a partner in a live-in relationship is entitled to maintenance under section 125 CRPC, 1973?

Lalita Toppo vs the state of Jharkhand

In the case of Lalita Toppo vs the state of Jharkhand, criminal appeal nos. 1656/2015, if the claimant is not a legally wedded wife, she is not entitled to maintenance under section 125 of the code of criminal procedure, 1973. Still, she is entitled to maintenance under the protection of women from the DV act, 2005.

The bench explained that the definition of domestic violence under section 3(a) of the act includes economic abuse. The court further held that under the provision of this act, an estranged wife or a live-in partner is entitled to more relief than section 125 of the CrPc, i.e. to a shared household also.

So, the question arises, “whether a complaint against a woman is maintainable under PWDV, Act?”

Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors

In Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors, Ct. 28 CRR 1795 of 2017, Bombay HC also held that a complaint of DV is maintainable against a daughter-in-law, sister, sister-in-law. But, they should be co-respondents in a complaint against the adult male member who lived in a domestic relationship with the complainant and co-respondents.

And, if the complaint not gets filed against the adult male member of the family, then it’s not maintainable against the daughter-in-law, sister-in-law, or sister.

The apex court set aside the high court’s order. It held that word “adult male” in section 2(q) of the PWDV Act stands deleted as it is violative of Article 14 of the constitution of India and the proviso to section 2(q) being rendered otiose stand deleted.

So, a complaint by an aggrieved party against a woman respondent is maintainable under PWDV Act.

Conclusion

Crimes against women are on rising in India, and women protection is a necessity.

There is a profound history of domestic violence on women and a continuous rise in domestic violence cases that led to the Protection of Women from Domestic Violence Act (PWDV), 2005.

The courts ensured protection to them by passing judgements and checking the compilement of the orders.

Women should be aware of their rights and duties and know the application of domestic laws in the country.

The male counterpart should also be aware of the after effects of domestic violence and the punishments associated with it.