Relief Under The Protection of Domestic Violence Against Women in India-Khanna & Associates LLP
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A COMPLETE GUIDE ON DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA
The status of women as depicted in the Manu Smritis is as under:
“Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah” which means Women are honored where, divinity blossoms there, and where women are dishonored, all action no matter how noble remain unfruitful.
Definition
“violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”
- The Protection of Women from Domestic Violence Act 2005 differs from the provision of the Penal Code – section 498A of the Indian Penal Code – in that it provides a broader definition of domestic violence.
- Domestic violence is defined by Section 3 of the Act as[4] “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:
- harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
- harasses, harms, injures or endangers the aggrieved person with a view 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
- has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
- otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”
The Act goes on, through the section Explanation 1, to define “physical abuse”,”sexual abuse”, “verbal and emotional abuse” and “economic abuse”.
Violence against women can take a number of forms:
Physical Abuse:
Hitting, slapping, shoving, grabbing, pinching, biting, hair pulling, etc are types of physical abuse. This type of abuse also includes denying a partner medical care or forcing alcohol and/or drug use upon him or her.
Sexual Abuse
: Coercing or attempting to coerce any sexual contact or behavior without consent. Sexual abuse includes, but is certainly not limited to, marital rape, attacks on sexual parts of the body, forcing sex after physical violence has occurred, or treating one in a sexually demeaning manner.
Emotional Abuse
Undermining an individual’s sense of self-worth and/or self-esteem is abusive. This may include, but is not limited to constant criticism, diminishing one’s abilities, name-calling, or damaging one’s relationship with his or her children.
Economic Abuse
Is defined as making or attempting to make an individual financially dependent by maintaining total control over financial resources, withholding one’s access to money, or forbidding one’s attendance at school or employment.
Psychological Abuse:
Elements of psychological abuse include – but are not limited to – causing fear by intimidation; threatening physical harm to self, partner, children, or partner’s family or friends; destruction of pets and property; and forcing isolation from family, friends, or school and/or work.
Domestic violence can happen to anyone regardless of race, age, sexual orientation, religion, or gender. Domestic violence affects people of all socioeconomic backgrounds and education levels. Domestic violence occurs in both opposite-sex and same-sex relationships and can happen to intimate partners who are married, living together, or dating.
Rape
Rape is a type of sexual assault, usually involving sexual intercourse. Rape is usually perpetrated by men against boys, women, and girls; women are usually assaulted more often than boys and girls and usually all by someone they know.
Victims of rape can be severely traumatized and may suffer from posttraumatic stress disorder; in addition to psychological harm resulting from the act, rape may cause physical injury, or have additional effects on the victim, such as acquiring of a sexually transmitted infection or becoming pregnant.
Violence against victims
Following a rape, a victim may face violence or threats of violence from the rapist, and, in some cultures, from the victim’s own family and relatives. Violence or intimidation of the victim may be perpetrated by the rapist or by friends and relatives of the rapist, as a way of preventing the victims from reporting the rape, of punishing them for reporting it, or of forcing them to withdraw the complaint; or it may be perpetrated by the relatives of the victim as a punishment for “bringing shame” to the family. This is especially the case in cultures where female virginity is highly valued and considered mandatory before marriage; in extreme cases, rape victims are killed in honor killings. Victims may also be forced by their families to marry the rapist in order to restore the family’s “honor”.
Honor killings
Honor killings are a common form of violence against women in certain parts of the world. In honor killings, women and girls are killed by family members (usually husbands, fathers, uncles or brothers) because the women are believed to have brought shame or dishonor upon the family. These killings are a traditional practice, believed to have originated from tribal customs where an allegation against a woman can be enough to defile a family’s reputation. Women are killed for reasons such as refusing to enter an arranged marriage, being in a relationship that is disapproved by their relatives, attempting to leave a marriage, having sex outside marriage, becoming the victim of rape, dressing in ways which are deemed inappropriate.
Acid attack victim
Acid throwing, also called acid attack, or vitriolage, is defined as the act of throwing acid onto the body of a person “with the intention of injuring or disfiguring [them] out of jealousy or revenge”. The most common types of acid used in these attacks are sulfuric, nitric, or hydrochloric acid Perpetrators of these attacks throw acid at their victims, usually at their faces, burning them, and damaging skin tissue, often exposing and sometimes dissolving the bones .The long term consequences of these attacks include blindness and permanent scarring of the face and body. Women and girls are the victims in 75-80% of cases Acid attacks are often connected to domestic disputes, including dowry disputes, and refusal of a proposition for marriage, or of sexual advances. Such attacks are common in South Asia, in countries such as Bangladesh, Pakistan, India; and in Southeast Asia, especially in Cambodia
Forced marriage
A forced marriage is a marriage in which one or both of the parties is married against their will. Forced marriages are common in South Asia, the Middle East and Africa. The customs of bride price and dowry, that exist in many parts of the world, contribute to this practice. A forced marriage is also often the result of a dispute between families, where the dispute is ‘resolved’ by giving a female from one family to the other.
The custom of bride kidnapping continues to exist in some Central Asian countries such as Kyrgyzstan, Kazakhstan, Uzbekistan, and the Caucasus, or parts of Africa, especially Ethiopia. A girl or a woman is abducted by the would be groom, who is often helped by his friends. The victim is often raped by the would be groom, after which he may try to negotiate a bride price with the village elders to legitimize the marriage.
Sexual harassment
Sexual harassment is abusive, uninvited and unwelcome behavior of a sexual nature, typically in the work/studying place, which may include intimidation, bullying or coercion of a sexual nature, or the inappropriate promise of rewards in exchange for sexual favors. It can be verbal or physical, and it is often perpetrated by a person in a position of authority against a subordinate. In the United States, sexual harassment is a form of discrimination which violates Title VII of the Civil Rights Act of 1964. The Council of Europe Convention on preventing and combating violence against women and domestic violence defines sexual harassment as: “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.”
Human trafficking and forced prostitution
A world map showing countries by prevalence of female trafficking
Human trafficking refers to the acquisition of persons by improper means such as force, fraud or deception, with the aim of exploiting them. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children states that:
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.
Because of the illegal nature of trafficking, reliable data on its extent is very limited. The WHO states that: “Current evidence strongly suggests that those who are trafficked into the sex industry and as domestic servants are more likely to be women and children.”A study in Europe on trafficked women found that the women were subjected to serious forms of abuse, such as physical or sexual violence, which affected their physical and mental health.
Forced prostitution is prostitution which takes place as a result of coercion by a third party. In forced prostitution, the party/parties who force the victim to be subjected to unwanted sexual acts exercise control over the victim.
Mistreatment of widows
A widow is a woman whose spouse has died. In some parts of the world, widows are subjected to serious forms of abuse, often fueled by traditional practices such as widow inheritance. The sacrifice of widows (such as sati) has been prevalent historically in various cultures (especially in India). Although sati in India is today an almost defunct practice, isolated incidents have occurred in recent years, such as the 1987 sati of Roop Kanwar, as well as several incidents in rural areas in 2002,
The salient features of the Protection from Domestic Violence Act, 2005 are as follows:
The Act seeks to cover those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or a relationship in the nature of marriage, or adoption; in addition relationship with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with them are entitled to get legal protection under the proposed Act.
“Domestic violence” includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
One of the most important features of the Act is the woman’s right to secure housing. The Act provides for the woman’s right to reside in the matrimonial or shared household, whether or not she has any title or rights in the household. This right is secured by a residence order, which is passed by a court. These residence orders cannot be passed against anyone who is a woman.
The other relief envisaged under the Act is that of the power of the court to pass protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both the parties and causing violence to the abused, her relatives and others who provide her assistance from the domestic violence.
The Act provides for breach of protection order or interim protection order by the respondent as a cognizable and non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both. Similarly, non-compliance or discharge of duties by the Protection Officer is also sought to be made an offence under the Act with similar punishment.
While “economic abuse” includes deprivation of all or any economic or financial resources to which the victim is entitled under any law or custom whether payable under an order of a Court or otherwise or which the victim requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by her, payment of rental related to the shared household and maintenance and disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the victim has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the victim or her children or her stridhan or any other property jointly or separately held by the victim and prohibition or restriction to continued access to resources or facilities which the victim is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household, “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb, or health or impair the health or development of the victim and includes assault, criminal intimidation and criminal force.
Application to the magistrate
An application regarding domestic violence can be presented to the magistrate seeking one or more reliefs mentioned in sections by:
- The aggrieved person,
- Protection officer on behalf of aggrieved person
- Any other person on behalf of aggrieved person
Jurisdiction of court
The first class magistrate court or metropolitan court shall be the competent court within the local limits of which
- The aggrieved person permanently or temporary resides or carries on business or is employed
- The respondent permanently or temporally resides or carries on business or is employed or
- The cause of action arises.
Any order made under this Act shall be enforceable throughout India While disposing application the magistrate shall take in to consideration any domestic incident report received from the protection officer or service provider. The relief sought under this section includes the issuance of order of payment or compensation or damages without prejudice to the right of such person to institute suit for compensation or damages for injuries caused by the act of domestic violence. 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 there is a likelihood of such violence, he may grant following exparte interim order against the respondent on the basis of affidavit of the aggrieved person. Magistrate can issue different orders such as Protection order, residence order, monetary relief, custody order or compensatory orders as per the circumstances of the case.
In case of an earlier decree of compensation or damages passed by any other court, in favour of aggrieved person, the amount if any paid shall be set off against the order of amount payable under this act. The application to the magistrate shall be as nearly possible to the formats prescribed under this Act and Rules. After receiving the application the Magistrate shall fix the date of first hearing within 3 days and the magistrate shall endeavor to dispose of every application be within a period of 60 days of the first hearing. The notice of the date of hearing shall be given by the magistrate to the protection officer who shall get it served to the respondent. At any stage of the application, the magistrate may order, counselling of the respondent or aggrieved person either singly or jointly with any member of service provider. The magistrate may secure the service of suitable person preferably a woman including a person engaged in the welfare of women for assisting the court in the discharge of its function. If the circumstance of the case so warrant and if either party so desires the magistrate may conduct the proceedings on camera.
Right to reside in a shared house hold
Every women in a domestic relationship shall have the right to reside in the shared household, irrespective of the fact that she has right, title or beneficial interest in it. The aggrieved person shall not be evicted from the shared house hold or any part of it by the respondent without the procedure established by the law. The Hon’ble Supreme court in a case, S.R Batra and another V Smt Taruna Batra, held that the exclusive property of mother -in-law of Smt Taruna Batra is not a shared household as defined in S.2 of the Act. shared property means the house belongs to husband or taken rent by him or joint family property. Wherever the couple lived together in the past and treating that property as shared household would lead to chaos and such interpretation would be absurd.
Different kinds of order issued by the Magistrate
Protection orders
After giving an opportunity to the aggrieved person and respondent of being heard and the magistrate is satisfied that a prima facie case of domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person prohibiting the respondent from the following acts such as Committing any acts of domestic violence
- Aiding or abetting in the act of domestic violence
- Entering the place of employment of aggrieved person or if the person is child, its school or any other places
- Attempting to communicate in any form including personal, oral or written, electronic or telephonic contact
- Alienating any assets, operating bank account, bank locker held or enjoyed by both parties jointly or singly by the respondent including her sthridhan
- Causing violence to the dependents, or other relative or any other person who give the assistance to the aggrieved person or
- Committing any other acts specified by the protection officer
Residence orders
The magistrate being satisfied that a domestic violence has taken place, pass residence order-
- Restraining the respondent from dispossessing or in any manner disturbing the peaceful possession of the shared household
- Directing the respondent to remove himself from the shared household
- Restraining the respondent or his relatives from entering any portion of the shared house hold where the aggrieved person lives
- Restraining the respondent from alienating or disposing of the shared house hold or encumbering it
- Restraining the respondent from renouncing his right in the shared household
- Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her or to pay rent for the same if the circumstances so require.
No order shall be made against women under this section. Magistrate may impose additional condition and pass any other order to protect the safety of the aggrieved person or her child. Magistrate is also empowered to order direction the concerned station house officer of the police station to give protection to the aggrieved person r to assist in implementing his order. Magistrate may also impose on the respondent to direct stridhan or any other property or valuabale security she is entitled
Monetary relief
The magistrate may direct the respondent to pay monetary relief to meet the expenses of the aggrieved person and any child as a result of domestic violence and such relief include
- Loss of earnings
- Medical expenses
- Loss caused due to destruction or removal or damage of any property
- Pass order as to maintenance for the aggrieved person as well as her children if any
Including the order under or in addition to an order of maintenance under section 125 criminal procedure code or any other law.
The quantum of relief shall be fair reasonable and consistent with the standard of living to which the aggrieved person is accustomed to. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent.
Custody orders
Magistrate can grant temporary custody of any child or children to the aggrieved person or to the person making application on her behalf and specify the arrangements for visit of such child by the respondent. Magistrate can refuse the visit of such respondent in such case if it may harmful to the interest of the child.
Compensation orders
Magistrate may pass order directing the respondent to pay compensation to the petitioner for injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.
Copies of orders passed by the magistrate shall be supplied free of cost to the parties concerned and police officer and service provider
Any relief available under this Act may also be sought in any other legal proceedings before a civil court,family court or criminal court and such relief may be sought in addition to and along with relief sought for in suit, or legal proceeding before civil or criminal court.
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