Protection of Women from Domestic Violence Act (DV Act) 2005
This is the spirit of the new law that was passed to prevent domestic violence, provide immediate relief, and stand firmly by victims.
The Prevention of Domestic Violence Act is a historic step towards a gender sensitive law in India. However, the big question remains, how is it different from other existing laws of the land? Why is this law unique? Most importantly, what are the benefits an aggrieved person can get from this law?
Before the passing of this act, any effort to make a new law for women always faced tough resistance from patriarchal and religious leaders. Needless to say, the process of creating this piece of legislation has gone through the same struggle. However, once enacted, this law provides a historical opportunity to make a path towards gender just laws for all the women of India irrespective of their faith.
The Protection of women from domestic violence act 2005, is unique and different from other existing laws. Some of the salient features are mentioned below:
(1) It provides a civil remedy to the aggrieved person/s. This means that the law does not solely rely on a criminal procedure of guilty and punishment. Niti Saxena of the Association for the Advocacy and Legal Initiatives (AALI) has more to add, ‘also as a civil law it is more survivor driven, unlike criminal law which revolves around state, police and prosecution. Because of the lack of civil remedy options, forced victims took shelter under criminal law, which was not adequate in certain circumstances.’
(2) Experience shows that for the criminal procedure, the aggrieved person has to face immediate exit from the shared household. Also sometimes, the criminal law becomes insufficient to deal with the different and complex forms of violence. Niti also strongly agreed. She said ‘This is the first time under this law that domestic violence and domestic relations have been defined viz. recognition of violence faced by women in natal home and within a marriage like situation. The act also provides for the right to reside in “shared household” which goes beyond “matrimonial household” thus covering mothers and sisters too.’
(3) Its uniqueness can be understood from the provision of the act to provide immediate and emergency relief to victims. The law also designated a new post named as Protection Officer. A protection officer has very crucial role to play in providing relief and justice to the victim. A stop violence order can be issued in form of protection order with the intention of providing safe and secure space for the survivor.
(4) It can be used as a deterrent to the abusive person. The law makes strict provision to stop the abuser to repeat his/her act. It gives an opportunity to males of the household to think over their behavior and change the attitude towards the female members of the family.
(5) As mentioned above, being a civil law, the intention of it is to provide relief and support to the survivor and not to penalize the perpetrator. The law does not necessarily intend to arrest a person for the act of domestic violence. It forces the respondent i.e. the perpetrator to comply with the orders passed by magistrate in favor of the victim (see below for the details). However if the perpetrator continues to commit violence or does not comply with the order (or aggrieved person continues to feel threatened), such violation is seen as a criminal offence under the law and the perpetrator can be arrested. On the non compliance, he can also be given a punishment of a one year jail sentence or a fine of Rs. 20,000.
In keeping with ground reality wherein the legal system and processes have been inaccessible to most of the women, Niti points out, this law has been conceptualized to be more survivor oriented with simple provisions to ensure immediate relief. According to the Act, anyone who has a reason to believe that an act of domestic violence has been, or is being or is likely to have been committed may give information to the PO. The complaint can be from the aggrieved person or anyone on behalf of her. It can also be filed by a doctor who may be treating the victim/s. According to the Act, an aggrieved person can file a complaint to (a) a protection officer, who is appointed by the government under the provision of this law (b) directly to the judge designated for the DV cases (c) directly to the police and (d) or through the service providers. A victim can choose either of these options.
But the big question remains, what are the reliefs an aggrieved person can get? These provisions are dealt in length under article 18 to 22 of the act. These provisions are-
(A)Protection orders- Article 18 of the law states, a magistrate can pass a protection order and prohibit the respondent from-
-committing any act of domestic violence.
-entering the place of employment of the aggrieved person or, if the person aggrieved is a child, her school or any other place.
-attempting to communicate in any form.
-operating to bank lockers or bank accounts.
- causing violence to the dependents or persons who offer assistance to the aggrieved person.
-committing any act of domestic violence.
-entering the place of employment of the aggrieved person or, if the person aggrieved is a child, her school or any other place.
-attempting to communicate in any form.
-operating to bank lockers or bank accounts.
- causing violence to the dependents or persons who offer assistance to the aggrieved person.
( (B)Residence orders- Under article 19, the magistrate can pass a residence order-
-restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household.
-restraining the respondent or any of his relatives from entering any portion the shared household.
-directing the respondent to remove himself from the shared household.
-directing the respondent to secure same level of alternate accommodation to the aggrieved person as enjoyed by her in the share household or to pay the rent for the same.
-restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household.
-restraining the respondent or any of his relatives from entering any portion the shared household.
-directing the respondent to remove himself from the shared household.
-directing the respondent to secure same level of alternate accommodation to the aggrieved person as enjoyed by her in the share household or to pay the rent for the same.
(C)Monetary relief- The magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person. It includes-
-loss of earnings.
-medical expenses.
-loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person.
-maintenance for her and her children.
-loss of earnings.
-medical expenses.
-loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person.
-maintenance for her and her children.
(D) Custody orders- Magistrate may grant temporary custody of any child or children to the aggrieved person.
(E) Compensation order- Uniqueness of this act may be see in this provision. Under this act, magistrate may pass an order directing the respondent to pay compensations and damages for the injuries, including mental torture and emotional distress caused by the act of domestic violence.
The last but not least point is, an aggrieved woman can also file a complaint against the relatives of her husband/male partner including the female relatives. These provisions are much more elaborate in the law itself. Evidently, provisions are made to safeguard and provide essentials for a violence free life of the aggrieved person. In addition to the provision of this act, the aggrieved person can also file a complaint under other criminal laws that already exist.
(The protection of Women from Domestic Violence Act can be downloaded from here:http://wcd.nic.in/domesticviolenceact05.pdf )
By Nasiruddin Haider Khan
