Post by Zena Costa, sports journalist from Goa:
Domestic Violence Act 2005 is the first significant attempt in India to recognise domestic abuse as a punishable offence, to extend its provisions to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.
Why a legislation for domestic violence?
Domestic violence is among the most prevalent and among the least reported forms of cruel behaviour.
Till the year 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser.
Also the relationships outside marriage were not recognised. This set of circumstances ensured that a majority of women preferred to suffer in silence. It is essentially to address these anomalies that the Protection of Women from Domestic Violence Act was passed.
Who are the primary beneficiaries of this Act?
Women and children. Section 2(a) of the Act will help any woman who is or has been in a domestic relationship with the ‘respondent’ in the case.It empowers women to file a case against a person with whom she is having a ‘domestic relationship’ in a ’shared household’, and who has subjected her to ‘domestic violence’.
Children are also covered by the Act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.
Who is defined as ‘respondent’ by this law?
Section 2 (q) states that any adult male member who has been in a domestic relationship with the aggrieved person is the ‘respondent’. The respondent can also be a relative of the husband or male partner .Thus, a father-in-law, mother-in-law, or even siblings of the husband and other relatives can be proceeded against.
How does the new law define domestic abuse?
Section 3 of the law says any act/conduct/omission/commission that harms or injures or has the potential to harm or injure will be considered ‘domestic violence’.
Under this, the law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of the same.
Even a single act of commission or omission may constitute domestic violence — in other words, women do not have to suffer a prolonged period of abuse before taking recourse to the law.
How does the law ensure that a wife who takes legal recourse in the event is not intimidated or harassed?
An important aspect of this law is that it aims to ensure that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife’s continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.
What are the main rights of a woman as recognised by this law?
The law is so liberal and forward-looking that it recognises a woman’s right to reside in the shared household with her husband or a partner even when a dispute is on .Thus, it legislates against husbands who throw their wives out of the house when there is a dispute. Such an action by a husband will now be deemed illegal, not merely unethical.
Even if she is a victim of domestic violence, she retains right to live in ’shared homes’ that is, a home she shares with the abusive partner. Section 17 of the law, which gives all married women or female partners in a domestic relationship the right to reside in a home that is known in legal terms as the shared household, applies whether or not she has any right, title or beneficial interest in the same.
The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner.
The law, significantly, recognises the need of the abused woman for emergency relief, which will have to be provided by the husband. A woman cannot be stopped from making a complaint/application alleging domestic violence. She has the right to the services and assistance of the Protection Officer and Service Providers, stipulated under the provisions of the law.
A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.
Sections 18-23 provide a large number of options for legal redressal. She can claim through the courts Protection Orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation Order and Interim/ Ex parte Orders.
If a husband violates any of the above rights of the aggrieved woman, it will be deemed a punishable offence. Charges under Section 498A can be framed by the magistrate, in addition to the charges under this Act. Further, the offences are cognisable and non-bailable. Punishment for violation of the rights enumerated above could extend to one year’s imprisonment and/or a maximum fine of Rs 20,000.