The Protection of Women from Domestic Violence Act, 2005
· Introduction:
Throughout history, women have consistently been the primary targets of domestic violence, and unfortunately, this trend persists even in the modern era. Women of all ages, religions, castes, and social classes are affected by domestic violence. However, domestic violence can affect more than just women; men, children, and elderly individuals can also be victims of such abuse. Domestic violence is present across all social classes and demographic groups.
In India, 30% women have experienced domestic violence at least once from the age of 15, and around 4 percent of pregnant women have even experienced spousal violence during pregnancy.
Domestic violence occurs when someone within the victim's household or family commits the offense. The group consists of family members, relatives, and so on. Domestic violence is frequently referred to in situations where the perpetrator and victim have a close living arrangement. Different types of domestic violence consist of elder abuse, child abuse, honor-based abuse like honor killings, female genital mutilation, and any form of abuse by a romantic partner.
In the 21st century, a range of measures have been implemented to tackle the societal problem of domestic violence. Governments worldwide have implemented proactive strategies to eliminate domestic violence. In addition, the media, politicians, and advocacy organizations have helped raise awareness about domestic violence as a societal problem.
Domestic violence in India is regulated by the Protection of Women from Domestic Violence Act, 2005. It is defined in Section 3 as any action, behavior, or negligence that causes harm or poses a threat to the mental or physical health and safety of an individual. Any act that causes harm, harassment, or injury to an individual or someone connected to them in order to fulfill an illegal request is also considered domestic violence.
· Objectives of the Domestic Violence Act, 2005
1. To identify and determine that every act of domestic violence is unlawful and punishable by law.
2. To provide protection to victims of domestic violence in the cases such acts occur.
3. To serve justice in a timely, cost-effective, and convenient manner to the aggrieved person.
4. To prevent the commission of domestic violence and to take adequate steps if such violence occurs.
- To implement sufficient programmes and agendas for the victims of domestic violence and to guarantee the recovery of such victims.
- To create awareness among the people about domestic violence.
- To enforce harsh punishment and must hold the culprits accountable for committing such heinous acts of violence.
- To lay down the law and govern it in accordance with the international standards for the prevention of domestic violence.
· Legislative intent of the Domestic Violence Act, 2005
The legislative intent of enacting the Protection of Women from Domestic Violence Act, 2005 has been meticulously discussed in the case of Indra Sarma v. V.K.V.Sarma, it was stated that the reason for the legislation to enact such an Act is to provide protection of rights of women who are victims of violence of any type occurring in the family. This Act safeguards women from facing violence within the four walls of their home.
The Madras High Court in the case, Vandhana v. T. Srikanth further stated the Protection of Women from Domestic Violence Act, 2005 “is an Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”.
· Essential provisions of the Domestic Violence Act, 2005
v Appointment of Protection Officers
Protection Officers are appointed by the State Government. The number of Protection Officers may vary from district to district depending on the size and necessity. The powers and duties which are to be exercised by the Protection Officers are laid down in confirmation with the Act. The Protection Officers must be women as far as possible and shall possess requisite qualifications and experience as may be prescribed under the Act.
v Powers and functions of Protection Officers
1. To assist the Magistrate in order to discharge their duties in accordance with the Act.
2. To make a domestic violence incident report to the Magistrate after receiving any such incident of domestic violence and must also forward the copies to the police officer in charge of the police station having jurisdiction over the incident.
3. To make the application in the prescribed order to the Magistrate if the aggrieved person claims relief for issuance of the protective order.
4. To make sure that the aggrieved person is provided free legal aid under the Legal Services Authorities Act, 1987.
5. To maintain a detailed list of all the service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate.
6. To find a safe available shelter home for the victim if she requires and send the details of her lodging in the prescribed manner to the Magistrate and the police station having jurisdiction.
7. To ensure that the order of monetary relief to the victims is complied with under this Act.
v Powers and functions of service providers
Section 10 of the Act, lays down the functions and duties of service providers. Service providers are defined under the Act as any voluntary association registered under the Societies Registration Act, 1860 or a company that is registered under the Companies Act, 1956 which aims to protect the rights of the women lawfully by providing legal aid, medical, financial or other assistance. The powers and duties of service providers are mentioned below.
1. A service provider has the authority to record any incident of domestic violence and forward it to the Magistrate or Protection Officer having jurisdiction where the incident of domestic violence took place.
2. The service provider must get the aggrieved person medically examined and forward such a report to the Protection Officer, Magistrate and the police station within the local limits where the domestic violence took place.
3. It is also the responsibility of the service providers to provide a shelter home to the victim if they require one and forward the report of lodging of the victim to the police station having jurisdiction.
v Duties and functions of police officers and Magistrate
Section 5 of the Protection of Women from Domestic Violence Act, 2005 lays down the duties and functions of police officers and Magistrate. It states that when a police officer, service provider or Magistrate receives a complaint of domestic violence, an incident of domestic violence is reported to him or he is present at the scene of occurrence of domestic violence then they should take the following steps:
1. They are required to inform the victim about her rights to make an application for receiving relief by way of protection order, order for monetary relief, custody order, residence order, compensation order, etc.
2. They should inform the victim of the accessibility of services of the service providers.
3. The victim should be informed about the services and duties of the Protection Officers.
4. They should also inform the victim about her right to free legal services under the Legal Services Authorities Act, 1987 and her right to file a complaint under Section 498A of the Indian Penal Code, 1860.
v Duties of shelter homes and medical facilities
If any victim of domestic violence requires a shelter home then under Section 6 of the Act, the person in charge of a shelter home will provide suitable shelter to the victims of domestic violence in the shelter home.
Further Section 7 of the Act lays down that if an aggrieved person requires medical assistance then the person in charge of the medical facility will be providing such assistance to the aggrieved person.
v Duties of the Government
The Act further lays down certain provisions stating the duties and functions of the Government. Such duties include;
1. The provisions of this Act must be given wide publicity through public media so that the citizens of our country are well aware of such provisions.
2. Both the Central and State Governments officers such as the police officers and the members of the judicial services must be given periodic sensitization and awareness training regarding the provisions of the Act.
3. Both the Central and State Governments must also ensure that the protocols for the various Ministries concerned with the delivery of services to women under this Act are diligently followed.
v Application to the Magistrate
The aggrieved person, the Protection Officer of that locality or any other person on behalf of the aggrieved person shall make an application to the Magistrate claiming one or more reliefs under this Protection of Women from Domestic Violence Act, 2005. The application must contain all the necessary details as prescribed by the Act.
The Magistrate will fix the date of hearing which shall not extend more than three days from the date of receiving the application. Furthermore, the Magistrate must also aim to dispose of all the applications made under Section 12 of the Act within a period of sixty days from the date of its first hearing. Moreover, the Protection of Women from Domestic Violence Act, 2005 authorizes the Magistrate to grant the following orders and reliefs.
A. Monetary reliefs- While disposing of the application the Magistrate may ask the respondent to pay monetary relief to meet the expenses incurred and the 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 the loss of earnings of the victim, medical expenses, the loss caused due to damage or destruction of any property, the maintenance of the aggrieved person and her children as required under Section of the Criminal Procedure Code.
B. Custody orders- Under Section 21 of the Protection of Women from Domestic Violence Act, 2005 when the Magistrate receives an application concerning domestic violence, he has the authority to direct the custody of any child or children to the victim or the person making the application on behalf of the victim.
v Jurisdiction and procedure
The court of Judicial Magistrate of the first class or the Metropolitan Magistrate of the area has the jurisdiction to hear cases under this Act. However, Section 27 of the Act states the following factors;
1. The aggrieved person permanently or temporarily resides or carries out business in that area.
2. The respondent resides, carries on business or is employed within the local limits of the area.
3. The competent court will be liable to grant protection orders or any other orders as the case may be.
Section 28 of the Act states that all the proceedings arising under this Act shall be governed by the provisions of the Code of Criminal Procedure, 1973.
· Loopholes in Act
1. Lack of awareness: Many women are unaware of their rights under the Act, hindering its effective implementation.
2. Understaffed and overburdened protection officers: The lack of sufficient protection officers and their overburdened workload often leads to delays and ineffective implementation.
3. Police apathy: In many cases, the police are reluctant to register complaints under the PWDVA, leading to victims facing further harassment.
4. Financial constraints: The Act mandates the establishment of shelters and other support services, but the lack of adequate funding hampers their development and accessibility.
5. Difficulty in proving emotional and psychological abuse: It can be challenging to gather evidence for emotional and psychological abuse, which often goes unnoticed.
6. Dependency on victim's testimony: The Act heavily relies on the victim's testimony, making it susceptible to manipulation and cross-examination.
7. Temporary measures: The Act primarily provides temporary relief, such as protection orders and residence orders, and does not offer long-term solutions to the problem.
8. Lack of focus on rehabilitation: While the Act addresses the immediate needs of victims, it does not adequately focus on their rehabilitation and reintegration into society.
9. Patriarchal mindset: Deep-rooted patriarchal attitudes and gender stereotypes continue to hinder the effective implementation of the Act.
10. Victim blaming: Societal pressure and stigma often discourage women from reporting domestic violence, leading to underreporting.
It is important to note that while these loopholes exist, the PWDVA, 2005 remains a crucial piece of legislation in protecting women from domestic violence. Continuous efforts are needed to address these issues and strengthen the Act's implementation.
· Amendments for improvement:
1. Mandatory training for police and judiciary: Implement comprehensive training programs to sensitize police and judicial officers about domestic violence.
2. Dedicated fast-track courts: Establish specialized courts to expedite cases of domestic violence.
3. Increased funding for protection officers: Allocate sufficient funds to recruit and train more protection officers.
4. Expanding the definition of domestic violence: Include economic abuse, cyberbullying, and stalking as forms of domestic violence.
5. Mandatory counseling for abusers: Impose mandatory counseling or rehabilitation programs for perpetrators.
6. Long-term support for survivors: Provide comprehensive rehabilitation and reintegration support, including job training and housing assistance.
7. Financial compensation for victims: Establish a mechanism for providing financial compensation to victims of domestic violence.
8. Jurisdiction issues: Clarify jurisdictional issues in cases where the victim and abuser reside in different states.
9. Child custody and guardianship: Include provisions for child custody and guardianship in cases of domestic violence.
· Conclusion and my point of view:
The act is crucial in the Indian legal system for safeguarding women's rights, ensuring they feel safe and protected in their own homes. The legislation is comprehensive, outlining the powers and responsibilities of different authorities, the support options for victims, the process for filing a domestic violence complaint, the assistance available to victims, the authority and scope of the Indian judiciary, and the central government's ability to establish rules.
The legislation offers legal recourse for individuals who have been affected by domestic abuse. Before the act was passed, victims of domestic violence used to seek solutions through civil remedies like divorce, child custody, injunctions, and maintenance by going to civil courts. As a result, the action led to important reforms in the Indian parliament.
Although the law has implemented important measures to protect women from domestic violence, it does not offer any solutions for male family members and does not acknowledge the relationships of LGBTQ+ community members living together or married. Therefore, these actions must be taken to completely eliminate domestic violence as a necessary problem in Indian society.