REMEDIES AGAINST DOMESTIC VIOLENCE UNDER PROTECTION OF DOMESTIC VIOLENCE ACT,2005

Author-Choppali Venkata Kalyani, Dr. B.R. Ambedkar College of Law, Andhra University

INTRODUCTION:

Simply, this act is called (DV) Domestic violence. It is not a social issue; doubtlessly, it considered as a violation of fundamental rights. Here, Right to life and personal liberty, ,Right to speech and expression  of the Indian Constitution are infringed. This act has 37 sections; it came into force on 26 October 2006. From Ancient days, it has existed in society. Women from every social background, disregarding of their religion, caste, or class, are victims of domestic violence. Most people think that it was not there in the society, but it is invisible. Mostly victims are coming from villages when compared to cities, a tiny of cases are reported. Married women face this kind of violence more than normal women. Lack of education and poverty are the main causes. In India, 30% of people are facing this Issue .The Vienna Accord of 1994 and Beijing Declaration of 1995 have suggested.

When a woman is experienced to cruelty by her husband or relatives, it is considered an illegal/unlawful act. In order to protect women from domestic violence in society, the United Nations recommended the Committee on Convention and Elimination of all forms of Discrimination Against Women (CEDAW) suggested the act. It is responsibility to every state to safeguard female from this act. Then government introduced this act. This act provides remedies, medical facilities, shelter homes, and protection to the victims. It appoints service providers and protection officers to take care of the petitioners. It is a civil law. sections 18,19,20,21,22,23 speaks about remedies.

Keywords(Minimum 5):

Domestic Violence

Women

Fundamental rights

Physical abuse

Remedies

Husband

cruelty

Human Rights

Meaning of Domestic violence:

When a woman is experienced to cruelty by her husband or relatives of her husband, it is called as domestic violence. It refers when one mate tries to take control of the other spouse, telling them what to wear, how to wear it, and where to go. It is also called as ‘intimate partner violence.’ It is a forcibly  action that happens inside the home  can apply to women, mothers, daughters, women those who are  in living relationships, and those in long-standing relationships with sex workers.

Definition of Domestic violence:

(a)Section 3 of the Domestic violence Act, 2005 defines as follows-

Section 3 of DV speaks about it forms:

  • PHYSICAL ABUSE:

Any act which is done by a defendant against petitioner which must cause bodily pain, harm, endanger the life of the aggrieved person /likely to do it includes assault, criminal intimidation, criminal force.

  • SEXUAL ABUSE:

If anything done by a respondent against the petitioner which insults the character of women or violates the dignity of a woman it comes under sexual abuse.

  • VERBAL ABUSEAND EMOTIONAL ABUSE:

If any action done by the respondent /humiliates the woman and repeatedly he spoke about not to having a male child, if he creating any threat against petitioner /any person whom the petitioner is intrested.

  • ECONOMICAL ABUSE:

Destitution of all or economic, financial to which the aggrieved person is entitled. Throwing away the household effects any property whether it is movable /immovable, shares, fixed deposits which are belongs to the aggrieved person. Banning to continued access to facilities which are available to the aggrieved person which includes the shared house hold.

  1. Historical Background / Evolution:

In ancient days there is no separate act, remedies, legislations it is considered as a criminal law in previous days there is a relief in Indian Penal Code 1860 Section 498A speaks about cruelty by husband, it is considered as a civil law.

  1. Comparison with other Countries :

It is a universal problem faced by all over the world regardless their caste, creed, religion etc. The UN conducted a survey and revealed that it exists in 71 countries. It is a common problem in the United States, with one in four women and one in nine men meet domestic violence with their spouses. The US government has enacted the Violence Against Women Act (VAWA) for the protection of women from this social Evil .In the UK, two million adults experienced per year. They have also implemented laws for protection. The main causes of this are poverty, lack of education, and lack of understanding between partners.

Causes :

The main causes of DV are lack of education, poverty, misunderstandings between the spouses, societal attitude towards gender roles, mental health issues, substance abuse, lack of stringent punishments, cultural and social factors, dowry, alcoholism, historical causes, low IQ, etc.

  1. Forms :

 Section 3 of DV speaks about it forms:

  • PHYSICAL ABUSE:

Any act which is done by a defendant against petitioner which must cause bodily pain, harm, endanger the life of the aggrieved person /likely to do it includes assault, criminal intimidation, criminal force.

  • SEXUAL ABUSE:

If anything done by a respondent against the petitioner which insults the character of women or violates the dignity of a woman it comes under sexual abuse.

  • VERBAL ABUSEAND EMOTIONAL ABUSE:

If any action done by the respondent /humiliates the woman and repeatedly he spoke about not to having a male child, if he creating any threat against petitioner /any person whom the petitioner is intrested.

  • ECONOMICAL ABUSE:

Destitution of all or economic, financial to which the aggrieved person is entitled. Throwing away the household effects any property whether it is movable /immovable, shares, fixed deposits which are belongs to the aggrieved person. Banning to continued access to facilities which are available to the aggrieved person which includes the shared house hold.

  1. Legal Provisions and interpretations:

According to section 5 of the this act the aggrieved person can file a suit to claim which type of remedies are available to her like compensatory orders, monetary reliefs , protection orders, custody orders, residence orders.

Section 18 protection order: If the court is satisfied that domestic violence has taken place, then the forum issues the protection order in favour of the aggrieved person. The magistrate gives a warning to the respondent that they are banned from certain actions:

(a) performing any type of domestic violence,

(b) assisting in acts of domestic violence,

(c) the respondent does not have a chance to enter the  victims home,

(d) the respondent should not communicate with the petitioner,

(e) the respondent should not separate the property, bank lockers, or cheques that belong to the aggrieved person, and

(f) the respondent should not cause any harm to the petitioners relatives

.Case law: Smt.Rinamukharjee&Ors.v.state of West Bengal &Anr.AIR 2009(NOC)2841 (cal)[1]

Section19 Residence orders:The magistrate can grant a residence order in favour of the aggrieved person.

(a) stop the respondent from depriving the property which belongs to both.

(b) The court commanded respondent to remove himself from the shared household.

(c) The court directed the respondent should not enter the premise[2]s of the victim’s home or any relatives of the victim.

Not only this, the court imposes additional directions prohibiting certain actions against the petitioner as mentioned in the above section.

Case law:Rakesh vs Rajnesh @Manto,2011(4) WLC (Raj) 21

Section 20 Monetary reliefs:

The court may directed the respondent to pay monetary relief to meet the expenses which are occurred due to the act of domestic violence by the respondent, He should pay the compensation in the following cases:

  • if the petitioner lost their employment because of the domestic violence caused by the respondent, the replier should pay the expenses,
  • The petitioner should pay the medical expenses,
  • The loss happened because of the petitioner,
  • The respondent should pay the maintenance according to the section 12 of CRPC.
  • The monetary relief granted by the court it should be sufficient, equitable and reasonable.
  • The payments should pay by monthly basis, lumpsum, yearly basis.
  • The respondent should pay the expenses /maintenances under sub section(1).
  • If the respondent failed to pay the monetary relief which was granted by the court then the forum, ordered the employer of the replier and the salary was given to the aggrieved person/magistrate.

Case law:Rajesh kumarvs.safurabai&ors.AIR2009(NOC)813(chh.)[3]

Section 21 Custody orders:

The court provides the custody order for the child. If the respondent requests the magistrate during the hearing, then the magistrate may pass the order for visitation with the children. If such meet is dangerous to the children or petitioner, the forum can refuse such visits at any time.

Case law:oliver Menezes v.Seritatheresemathias (2021)

Section 22. Compensation orders:

Furthermore the compensation order should be granted by the court application being made by the petitioner , the respondent should pay compensation, damages and injuries which are caused by the respondent.

  1. Power to grant interim and ex parte orders.—(1) “In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

 (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 section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent”.[4]

What is said in Section 23? If the court is satisfied that the application being made under Section 12 is proper, then the court can pass the interim order/ex parte order. If the court is satisfied that an act of domestic violence has really been done, then the court can pass the ex parte order/interim order against the respondent.

Case law: Abhijit Bhikaseth Auti vs. state of maharastra&Anr.AIR 2009 (NOC) 808 (bom.)[5]

  • Essentials :

There should be control over the other spouse.

(2) It includes a pattern of abusive Behaviour over the spouse by the respondent.

(3) The respondent tries to gain power over the other spouse in a domestic relationship.

(4) Both spouses should be in a domestic relationship; what type of  requirements are included in section 2(f) of the DV Act, 2005.

Case Laws :

(1)V.D. Bhanot vs. Savitha bhanot ,(2012):

In the above case, they got married in the year 1980. The   wife ran off from her marital home. The respondent filed a suit under Section 12 of the DV Act. The magistrate granted interim relief to the replier, and the forum passed protection orders under Section 18. Again, the husband filed a suit to remove his wife from his quarters. The court room said that she has to reside on the 2nd floor while she is living on the 1st floor. The opinion of the bench did not satisfy the respondent. Therefore, she went for an appeal in the High Court, but the application was denied by the Sessions Court because the marriage was solemnized in 1980, while this act came into effect in 2005, and it does not have retrospective effect. Finally, the court of law held that the main intention of the act was to protect women from domestic violence, so the judgment was given in favour of the litigant.

(2) Bibi parwanakhatoon vs. State of bihar,(2017)

In this case, the wife died by being set on fire by her husband and her in-laws due to dowry demands. The suit was filed by the wife’s family members against the husband and in-laws. According to the circumstances of the case, the High Court ruled in favour of the husband and in-laws. Again, the victim’s sister-in-law appealed to the Supreme Court. Can “Neither it be proven, based on circumstantial evidence, that the Appellants had any common intention with the deceased’s spouse in the commission of the crime.formerly resided in a separate village.” Furthermore, it is abundantly obvious from the documented evidence.”

(3) Inder raj malik vs. Sunitha  Malik(1986)

Here, the wife has been ill-treated by her husband and mothers-in-law during festival days. They ordered the appellant to bring more and more money and items as dowry, and they tortured her especially during festivals. They demanded that she sell her property. The victims’ relatives then filed a petition, and the court decided that, according to Section 4 of the Dowry Prohibition Act, 1961, and Section 498A of the IPC, the respondent is held guilty.

Amendments:

The Protection of Women from Domestic Violence Act was enforced by the parliament on October 26, 2006. Later, it was introduced by the parliament in the year 2022 but it remains as a bill. So, there have been no amendments to this act.

Statistical Analysis :

In India, 32% of married women are victims of domestic violence (sexual abuse 6%, verbal abuse, emotional abuse 14%) by their husbands during their lifetime. West Bengal state reported the highest number of cases of cruelty against women by their husbands in 2021, according to the NCB.

Future Implications:

There should be implications and formulations in the Domestic Violence Act of 2005. Even though we have stringent punishments, domestic violence is happening in society. We need to amend certain provisions in the DV Act of 2005. The punishments should be more stringent. There are many unreported cases; therefore, there should be a committee/commission to scrutinize the rural areas, because most domestic violence cases are reported in rural areas compared to urban areas.

CONCLUSION& COMMENTS:

I think this act has been working well in both rural and urban areas. When compared to urban areas, it must be formulated better in the rural areas. The remedies available to women, like monetary, compensatory, custody, should be implemented properly. The duties of the protection officers were not adequate; in fact, they are working really hard. The service providers’ duty was very good. But the provisions of this act have been misused by some women in society, so I would like to determine if there are real victims or not. Some of the women are seeking revenge on their husbands by using the provisions of this act.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. bare act published  by the commercials law publishers (INDIA) pvt.ltd
    2. Crimes against women and children.
    3. Editors: Asha Shukla
    4. Jaya phooka
    5. Publications serials publications Pvt ltd.newdelhi ( India)
    6. 2015
    7. Law relating to women
  2. Online Articles / Sources Referred:
    1. https://blog.ipleaders.in/the-protection-of-women-from-domestic-violence-act-2005/
    2. https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf
    3. https://thelawcommunicants.com/domestic-violence-in-the-uk-usa-russia/v
    4. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10403108/#:~:text=In%20India%2C%2032%25%20of%20ever,%2C%20and%20sexual%20(6%25)
  1. Cases Referred:
  • rinamukharjee&Ors.v.state of westbengal&Anr.AIR 2009(NOC)2841 (cal)
  • Rakesh vs rajnesh @Manto,2011(4) WLC (Raj) 21
  • Rajesh kumarvs.safurabai&ors.AIR2009(NOC)813(chh.)

(4) oliver Menezes v.Seritatheresemathias (2021)

  • AbhijitBhikasethAuti vs. state of maharastra & Anr.AIR 2009 (NOC) 808 (bom.)
  • d. bhanot vs. savithabhanot ,(2012):
  • rajeshkumar&others vs.The state of up,2017.

(8) Bibi parwana khatoon vs. State of bihar,(2017)

  • inder raj malikvs.sunita malik(1986)

Statutes Referred :

    1. Domestic Violence Act,2005.
    2. Domestic Violence rules,2006.
    3. Code of Criminal procedure,1973.
    4. Indian Penal Code,1860.

[1]AIR 2009(NOC)2841 (cal)[1]

[2] 2011(4) WLC (Raj) 21

[3] AIR 2009(NOC)813(chh.)[3]

[4]https://indiankanoon.org/doc/207919/

[5]AIR 2009 (NOC) 808 (bom.)[5]

 

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