Domestic Violence Act, 2005 – An Aid to Battered Women

By Prachi Chindarkar

The Protection of Women from Domestic Violence Act, 2005 (the DV Act), was enacted to address abuse suffered by women and children below the age of eighteen years. The DV Act provides welcome relief to victims of domestic violence. In addition to addressing forms of domestic violence common to all cultures, the DV Act includes provisions addressing the unique socio-cultural elements of abuse and violence in marital and household relationships in India, making it a particularly powerful aid to battered women and children. This article reviews the salient aspects of the DV Act.

The DV Act protects women and children who fall prey to violence of any manner either within the family or in a shared household (i.e. in a domestic relationship). “Domestic violence” under the DV Act includes actual, or threat of, abuse, including physical, sexual, verbal, emotional, and economic abuse. It also includes harassment, such as unlawful dowry demands from a woman or her relatives. A domestic relationship under the DV Act includes the relationship between any woman who lives or has lived together in a shared household by virtue of kinship, marriage, a relationship in the nature of marriage, by adoption, or a joint family. Even women who are sisters, widows, mothers or single women living with the perpetrator of the violence are entitled to protection under the DV Act. All children, including adopted, step, and foster children below the age of eighteen years, are protected under the DV Act.

Enforcement of the DV Act is entrusted to state governments and each state is required to appoint one or more protection officer(s) in each district with clearly notified jurisdictional rights within which the protection officer(s) shall exercise their powers and perform the duties conferred on them under the DV Act. The protection officer(s) shall as far as possible be women with specified qualifications and experience. Any person who has reason to believe that an act of domestic violence is being, has been, or is likely to be committed can inform the local protection officer. To encourage people to come forward and report domestic violence, the statute provides that the informer will not be subject to any civil or criminal liability. An aggrieved person, any person on behalf of an aggrieved person, or a protection officer may present an application directly to the local magistrate seeking relief under the DV Act.

Judicial relief under the DV Act is available in many forms. The court may enjoin the abuser from committing any further act of abuse, communicating with the victim, and entering the victim’s place of employment or school. The court may award compensation or damages for losses suffered by the victim of abuse. The magistrate may, at any stage of the proceedings, direct the respondent or the aggrieved person, either singly or jointly, to undergo counseling. The magistrate may conduct the proceedings in camera, if the circumstances of the case warrant. 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. The courts are authorized to pass restraining orders so that the abused woman may continue to reside in the same house. The DV Act also provides that the aggrieved person shall not be evicted or excluded from the shared household or any part of it. Before the DV Act was passed, a complainant faced the risk of eviction by the abuser.

The magistrate may grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf. The magistrate also may provide for visitation between the child and respondent, unless he is of the opinion that visitation by the respondent may be harmful to the interests of the child, in which case visitation shall not be permitted.

Before the DV Act was passed, domestic violence victims sought relief from the courts under the Indian Penal Code (IPC). The DV Act is more expansive than the IPC because the DV Act broadly defines (a) abuse subject to judicial sanction and, (b) the range of victims subject to protection. The IPC does not use the term domestic violence; instead, it addresses offences similar in nature to the offences described in the DV Act, but restricted to cruelty to married women. All other cases of household domestic violence had to be addressed under the offences of that respective act of violence under the IPC.

Before the DV Act was passed, those abusing women and children could only be prosecuted under the IPC. Victims who were dependent on their abusers often faced legal hurdles because the IPC is not gender specific. For example, section 498A of the IPC provides that a husband (or a relative of the husband) who subjects his wife to cruelty shall be punished by imprisonment for a term which may extend to three years and subject to fine. For the purpose of this section, “cruelty” means (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. This provision did not adequately safeguard domestic violence victims. The victim would most likely have to move out of her marital home to ensure her safety or face further violence in retaliation. There was no provision that would permit her to continue living in her marital home and raise her voice against the violence committed against her. The DV Act also deals with different types of abuses that were not addressed earlier. For instance, it provides relief against sexual abuse, including marital rape which is excluded under the IPC. Thus, the DV Act remedied many deficiencies in the law.

An offence under the DV Act is cognizable, that is, the police may arrest the suspected abuser without a warrant or investigation. The DV Act makes the offense non-bailable and provides for imprisonment for a term that may extend to one year or a fine up to twenty thousand rupees, or both. These provisions help bring the perpetrator to justice in a speedy manner. Importantly, on March 23, 2010, in an, as yet, unreported ruling, the Delhi High Court gave retroactive effect to the DV Act so that women who were subjected to domestic violence before the DV Act was passed in October 2006 may seek judicial relief.

The DV Act was crafted to directly and forcefully address family and household violence, taking into account the unique socio-cultural aspects that surround it in India. Together with the court’s decision to give the DV Act retroactive effect, battered women and children now have significant legal protections to combat abusive treatment.

Prachi Chindarkar is an associate with LawQuest and is admitted to the Bar Council of Maharashtra and Goa. She can be reached at prachi@lawquestinternational.com.

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