Laws Relating to Domestic Violence
Even in the twenty-first century, there has been no decrease in crimes against women in India. The agony is that far out, women become victims of crimes even in the walls of their homes. Domestic violence cases against women are increasing day by day. Prior to the year 2005, women had the right to register criminal cases against domestic violence. In such cases, proceedings under Section 498A of the Indian Penal Code, 1860 were conducted. In 2005, the ‘Protection of Women Suffering from Domestic Violence Act’ was passed, in which many new rights were given to women. The purpose of section 498A is to punish the offender, whereas the purpose of the Domestic Violence Act is to provide the victim a place to live, alimony, etc.
What is domestic violence?
Domestic violence has been given a very detailed definition under Section 3 of the Protection of Women from Domestic Violence Act. The following functions fall under the definition of domestic violence:-
- Physical Violence – Any act or conduct which causes physical pain, health or body danger or harm to the health or physical development of a woman shall be considered as physical violence of the woman. Attack on women or use of criminal force will also be considered as physical violence. For example – beating the woman, not treating the sick woman, etc.
- Sexual Violence – Any act or conduct that is insulting or insulting the woman in a sexual way or harming the dignity of the woman will be considered as sexual violence. Forced sex and marital abuse will also come under the purview of sexual violence.
- Verbal and emotional violence – Insulting or ridiculing or deriding a woman and insulting or ridiculing her for not having a boy or child will be considered verbal and emotional violence. Abusing a woman, using abusive language or threatening to harm her relatives will also come under this purview.
- Economic misuse– Any financial or economic resource which the woman is legally entitled to or deprived of the woman or jointly owned property etc. will be considered as economic violence. If it is understood in easy terms, then selling any property in which the woman owns the property or to terminate the ownership of a woman will also come under this ambit. To deprive the woman of any such resource or facility or to obstruct the use of which the woman is entitled to use, such works also fall under this scope. For example– in a common household, a woman should be prevented from using water, electricity etc.
- Demand for dowry- Dowry or illegal demand of any valuable property also comes under the purview of domestic violence. In this regard, harming or harassing women also comes under the purview of domestic violence. In this regard, harassment of women with the view of threatening women relatives also comes under the purview of domestic violence.
- To cause mental or physical harm to a woman in any other way is also subject to domestic violence.
Who is the victim woman?
Any woman who is or has been in a domestic relationship with any man and is a victim of domestic violence can seek any solution or relief under this Act. Domestic relationship under the Act means that two persons who live or have lived in the same house and have relationship of blood relation, marriage or adoption will be considered as domestic relationship. A joint family who lives in the same house will also fall under this definition. Women living in a live-in relationship can also demand their rights under this act against domestic violence.
The Supreme Court has confirmed this in the 2010 D. Velusamy vs. D. Patchayammal case.
- Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage’.
- In our opinion a `relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In our opinion a `relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household’ as defined in section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship’.
Against whom can a complaint be filed?
Under the Act, the aggrieved woman can lodge a complaint against any adult man with whom she has been or is living in a domestic relationship. A married woman or a woman living in a live-in relationship can file a complaint against her husband or live-in partner or her relatives. Relatives include both male and female relatives. The person involved in the domestic violence is called the defendant or respondent.
Sandhya Wankhede vs. Manoj Bhimrao Wnakhede 9. that a wife or a female living in a relationship in the nature of marriage can, not only file a complaint against her husband or male partner but also against relatives of the husband or male partner. The term “relative” not having been defined in the Act, it could not be said that it excluded females from its operation.
By whom and who should register a complaint?
It is not only the victimized woman who has the right to complain of domestic violence. Any person can file a complaint on behalf of the victim. Apart from the victim woman, any of her relatives, social workers, NGO, neighbors, etc. can also file a complaint on behalf of the woman. It is not necessary to register a complaint that an incident of domestic violence has already taken place. If anyone fears that domestic violence can be done against a woman, then a complaint can also be filed.
The redressal process starts with the complaint. Complaints of domestic violence can be made before any police officer, protection officer, Magistrate and service provider. Service providers are those voluntary organizations and companies registered to act in the interest of women and registered as service providers under the Act. The service provider has the right to make a domestic violence report, conduct medical examination of the victim and provide shelter to the victim woman. Magistrate means any judicial magistrate first class under whose jurisdiction the person committing the violence resides or under whose jurisdiction the incident of violence has occurred. Conservation Officers are appointed under this Act and generally there is a Protection Officer in every district.
Relief available to the aggrieved under the Protection of Women from the Domestic Violence Act
- Section 17 Right to reside in a shared household.
The Supreme Court in S.R Batra vs. Taruna Batra held that 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.
- Section 18 Protection Order – Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman.
- Section 19 Residence Order- It states that a Magistrate may on being satisfied that domestic violence has taken place pass a residence order.
In Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors. The Supreme Court held that Domestic Violence Act provides for a higher right in favor of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.
It was furtherheld that when it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoption and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother-in-law can neither be subject matter of attachment nor during the life time of husband can his personal liability to maintain his wife be directed to be enforced against such property
4. Section 20 Monetary Relief– Section 20 of the Act empowers the court to order for monetary relief to the “aggrieved party.
5. Section 21 Custody orders- Under the Domestic Violence Act, 2005; the Magistrate is empowered to pass appropriate Orderswith respect to the custody of any child or children of the parties before it. He may also allow or refuse visitation right to the other party
6. Section 22 Compensation orders.—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
7. Section 23 Ex-parte order-(2) 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 that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”
The Hon’ble Delhi High Court in Bharat Bararia vs Priyanka Bararia, CRL. MC. 4936 of 2015, held that:“22. Sub-clause 2 of Section 23 of DV Act empowers the Magistrate to pass such interim order as he deems just and proper therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte relief, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.”
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