Consentia on Multidisciplinary Research

Failing of Domestic law in India

        In our society, violence is bursting. It is present almost everywhere and nowhere is this eruption more intense than right behind the doors of our homes. Behind closed doors of homes all across our country, people are being tortured, beaten and killed. It is happening in rural areas, towns, cities and in metropolitans as well. It is crossing all social classes, genders, racial lines and age groups. It is becoming a legacy being passed on from one generation to another. The term used to describe this exploding problem of violence within our homes is Domestic Violence. This violence is towards someone who we are in a relationship with, be it a wife, husband, son, daughter, mother, father, grandparent or any other family member. It can be a male‘s or a female‘s atrocities towards another male or a female. Anyone can be a victim and a victimizer. This violence has a tendency to explode in various forms such as physical, sexual or emotional.

        Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence (IPV), is defined as a pattern of abusive behaviours by one partner against another in an intimate relationship such as marriage, dating, family, or cohabitation.

      Domestic violence, so defined, has many forms, including physical aggression or assault , or threats thereof; sexual abuse, emotional abuse; controlling or domineering; intimidation; stalking; passive abuse (e.g., neglect); and economic deprivation, Alcohol consumption and mental illness can be co-morbid with abuse, and present additional challenges in eliminating domestic violence. Awareness, perception, definition and documentation of domestic violence differ widely from country to country, and from era to era. Domestic violence and abuse is not limited to obvious physical violence. Domestic violence can also mean endangerment, criminal coercion, kidnapping, unlawful imprisonment, trespassing, harassment, and stalking.

     Domestic violence against women is most common of all. One of the reasons for it being so prevalent is the orthodox and idiotic mindset of the society that women are physically and

Emotionally weaker than the males. Though women today have proved themselves in almost

every field of life affirming that they are no less than men, the reports of violence against them are much larger in number than against men. According to United Nation Report[1] , around two-third of married Indian women are victims of domestic violence and as many

as 70 percent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 percent of the women suffer from domestic violence, especially in the states of Bihar, U.P., M.P. and other northern states.

Domestic Violence Act for Women’s Empowerment in India

 

      Domestic Violence Act 2005[2] is the first significant attempt in India to recognize 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. 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[3] and criminal courts[4] 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 recognized. 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.

 

Salient Features of the Protection of women from Domestic violence Act

      This law was seen as a landmark step in improving the situation of women in India, broadening existing definitions of domestic violence to include not only physical but verbal, emotional, sexual, and economic abuse, and allowing women civil and/or criminal recourse for violations of the Act.

      The remedies  under the special Law consist of ex parte, interim, and permanent orders including protection orders[5], residence orders [6] to  remove the abuser(s) from the shared household,restrain the abuser(s) from entering premises of the shared household in which the victim resides, restrain the abuser(s) from alienating the victim from or disposing of the shared household,and/or direct the abuser(s) to secure equal and alternate accommodations for the victim if stayingin the residence is not a viable option; , monetary relief [7] including medicalexpenses and loss to property as well as maintenance for the victim and her children; and custody orders[8]  whereby the court can grant custody of children tothe victim while an application for relief is pending, and can deny visitation rights to theabuser(s) if deemed harmful.

       Apart from this, the PWDVA provides protection officers[9] in each state district to assist women victims through the court process by filing domestic incident reports to inform the magistrates deciding the cases of their circumstances, helping prepare complaints, informing and assisting victims with their right to obtain free legal and medical aid, counseling, and option of staying in shelter homes for safety, and ensuring compliance of the orders passed in their favour and the relief granted, Service providers[10] consisting of various governmental and non-governmental organizations registered under the PWDVA can play a supportive role in offering these services to domestic violence victims.

        While criminal law provides for prosecution of perpetrators, it does not take into account the woman’s immediate needs of protection, shelter and monetary relief. Also, criminal law alone does not fully recognise the responsibility of the state towards the victims of violence. On the other hand, existing civil law remedies of divorce and maintenance were unable to provide effective reliefs to women facing violence and the proceedings under the civil law were time consuming. Even when injunction orders were available, the enforcement of the same was weak due to absence of penalties for violation.

      The PWDVA was thus enacted with the objective of protecting women from all forms of domestic violence. In defining domestic violence, the Act went beyond mere physical forms of violence, to include mental, sexual and economic violence. In its written form, its distinctive feature is that it provides a civil remedy to the woman. It also prescribes strict penalties for the breach of protection orders. Moreover, the role of the Protection Officer as a primary link between the victim and the court has emboldened women to initiate legal action against the perpetrators.

Who Are The Primary Beneficiaries of This Act?

Women and children  are the main beneficiary of the Act. Section 2(a) [11]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.

     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.

 

     The law is so liberal and forward-looking that it recognizes 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.

Implementation of PWDVA

      Under the Act, the role of the various stakeholders such as the Protection Officers, Service Providers s and Medical Facility is complementary. However, even after 6 years, the Medical Facilities have still not become visible in the implementation of the Act. For this year, an interesting observation is that the referral system, whereby the Protection officers, Shelter Homes and Medical Facilities  refer relevant cases to each other, has more or less started working in some of the states

     There seemed to be complete misinterpretation of the role of counselling under the law. Service Providers were not registered in most states, which was further evidence that qualified counsellors were yet to be identified. In cases where the court directed the parties to undergo counselling and attempt settlements, it was found that in some cases, Protection officers or the Magistrate were directed to render counselling or take on the role of a counsellor or mediator. Women, therefore, were being compelled to take decisions that were perhaps not reflective of their needs. It was recommended that the parties should be ordered to undergo joint counselling only when they so desire, and that too by qualified counsellors.

            The primary objective of the PWDVA is to ensure that a woman leads a life free from domestic violence. To this effect, the Act envisages a multi-agency response system for supporting a victim of domestic violence. The Act places specific onus on the central and state governments to provide appropriate infrastructure for the effective implementation of the Act.

STAKEHOLDERS UNDER THE PWDVA

  • Protection Officers
  • Service Providers
  • Medical Facilities and Shelter Homes

 Protection Officers

    Protection Officers are considered as a crucial link between the women seeking relief under the PWDVA and the agencies that facilitate and/or provide such relief. The Protection Officer on one hand assists the woman in availing support services and on the other, acts as a coordinator between the court and the woman. The Protection Officers, therefore, has been mandated to perform a role not only through his or her own initiative but also in close coordination with the Service Providers, Medical facilities, Shelter Houses and under orders of the court.

         Under the PWDVA, the Protection Officer is one of the first official persons to whom an Aggrieved Party can turn to for assistance. Upon being approached, the Protection Officer’s duties are to minimise the exposure of the Aggrieved Party to additional violence and provide for her safety; to facilitate her access to support services such as Shelter Homes and Medical Facilities; and to assist in the preparation of the ‘Domestic Incident Report’ and applications to the court. After the Aggrieved Party files an application under the PWDVA, the court assumes supervision and directs the Protection Officer to perform various functions stipulated under the PWDVA.

 

Appointment and profile of Protection Officers

      The state governments have been made responsible for the appointment of the Protection Officers. Much discretion has been given to them to determine the number of Protection Officers to be appointed, the jurisdiction of such appointed Protection Officers, and any notification required to that effect. The detailed guidelines regarding the qualifications and experience of Protection Officers have been provided in the rules[12] It has been laid down that the appointment of   Officers may be from among government officials or members of NGOs and that preference should be given to women for such appointments. It further states that the Protection Officers  must have at least three years of relevant work experience, and should be appointed for a minimum term of three years. Furthermore, the state governments have been directed to provide necessary office support to the Protection Officers.

Submission of Domestic Incident Report

      The Domestic Incident Report (DIR) has been defined as a “report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person”[13].Form I provided in the PWDVR, 2006 is the prescribed format. It provides for a convenient and detailed format for recording all incidents of domestic violence. The DIR is looked upon as a public record of a complaint and is somewhat similar to a First Information Report (FIR). Upon receipt of a complaint, the Protection Officer is required to fill in a DIR irrespective of whether the woman wants to proceed under Section 12 of the PWDVA. This is laid down clearly in Rule 5(1) of the PWDVR.[14]

      However, it was noticed last year that the proviso to Section 12(1) of the PWDVA, which

states that “before passing any order on such application, the Magistrate shall take

Into consideration any DIR received by him from the Protection Officer or the service

Provider”, has caused considerable confusion amongst the Magistrates. While some courts

Interpreted the proviso as making the DIR a mandatory requisite for every application,

Others continued to accept applications without DIRs. In certain states, there was no

Uniform practice where the Magistrate sometimes accepted applications without DIRs and

at other times they did not.

Suggestions and recommendations:

 

  • The pre and post litigation role of the Protection Officers must be outlined through guidelines. It must be clearly stated that these will be in accordance with the Act. Guidance should be provided on the method of recording the DIR; the nature of the documentation that is required to be annexed to the DIR; and assisting the woman in approaching the Police, Service Providers, Medical facilities and Shelter Homes.
  •  It must be clarified that at the stage of recording DIRs, a home visit is not required since the data is recorded primarily on the basis of the statement of the woman and relevant documentary evidence. Further it should be specified that the Protection Officer should not enter into mediation or counselling with the woman, and if the woman so desires, she should be referred to a Service Provider for the same.
  •  If, however, the woman indicates that she wants to move the court, a DIR must be recorded   without delay. In this context, it must be clarified that a Protection Officer cannot refuse to record a DIR and instead divert the woman to counselling or mediation, and the failure to record a DIR would result in disciplinary action against the Protection officer. If the woman needs assistance in filing an application under Section 12 of the Act, the Protection Officer must proceed to draft the application and refer her to a legal aid lawyer.
  •   By way of issuing practice directions, the High Courts should clarify the role that is expected of the Protection Officers, Service Providers, State Legal Aid Lawyers, Medical facilities  and Shelter Homes so that all of them may be better utilised by the courts in discharge of their functions.
  •   A record of every visit of a woman who comes to the Protection Officer or the Service Provider, similar to a diary entry made in a police station, should be maintained so that it indicates the date, time and purpose of visit. As discussed earlier, if the woman does not want mediation or counselling, the record must indicate whether or not a reference has been made. The reference must be made in writing in duplicate, with one copy each for the Service Provider and the woman. The Service Provider to whom the reference is made must keep a corresponding record of the visit and the name of the person who referred the woman. Thereafter, the Service Provider should maintain a complete record of the steps taken to mediate or counsel, which can be adduced in court at any time as evidence and may assist the woman in getting a protection order.
  •   The judicial officers should be provided with a list of Protection Officers, Service Providers, Shelter Homes, Medical Facilities and State Legal Aid Lawyers comprising of their contact details for effective co-ordination.
  •  The Ministry of Health and Family Welfare should issue practice directions to all the state run, and Municipal Corporation hospitals for its Medical Facilities to intervene in domestic violence cases, fill in the DIR, and send a copy to the POs so that they can take appropriate action.
  •  Certain practice directions should be issued by the Director General of Police of each state. It must be made clear that the Police are to inform the woman of her rights under the Act. It should be further clarified that the Protection Officers are public servants, and therefore, the Police are bound to give assistance to them in the discharge of their public duties .All the practice directions regarding the role of the Protection Officers, Service Providers and Police must be disseminated among the judiciary for their consideration while dealing with cases under the PWDVA.
  • While it is important for the State Governments to make allocations, it is imperative that some support is provided by the central government. A policy can be successful only when it takes into account the local needs. Therefore, on the lines of the Flexible Pool under the National Rural Health Mission (NRHM), the Union Ministry of Women and Child Development could provide funds to the states. This would enable the states to draw up plans as per their requirements. It must be noted that the funds by the central government would be to supplement and not substitute the funds provided by the states. The MWCD, being the nodal agency, must also monitor the allocations made under the Flexible Pool
  • A clear and consistent tracking system of judicial orders and making them accessible must be put in place. All orders that are passed under the Act must be digitised and put up on the official website, which would enable M&E of the implementation of the Act.
  • The Supreme Court must lay down clear guidelines on the basis of which maintenance should be awarded. While drafting these guidelines, the contributions made by the woman as a homemaker, and the other non-monetary contributions to the relationship should be considered. Since the enforcement of orders is difficult, guidelines should be issued for incorporating mechanisms within the orders to enforce them. The provisions of CrPC[15] that for every  breach of order, the Magistrate should issue warrant for levying the amount due in the manner provided for levying fines, and may sentence the defaulting party to a minimum of one month imprisonment, should be incorporated.
  • Enough number of protection officers must be appointed in ratio of state population, so as to address the issue more fruitfully.

 

    Conclusion

          Unless sufficient money is allocated and an efficient infrastructure is put in place in the states, the implementation of the Act would be far from satisfactory. There have been significant improvements from the first year, but as previously mentioned, several gaps remain. The tracking of implementation itself is largely compromised due to lack of a comprehensive and uniform data collection and compilation system. The Act has laid down specific duties to be performed by the central and state governments. Indeed the complete lack of initiative by the central government to ensure effective implementation of the Act reveals its reluctance to follow up on legislation after enactment.,

⃰⃰ Asst. Professor in Law, Aligarh Muslim University, Malappuram Center,Malappuram.

[1] United Nation Population Fund Report,2005 p.47.

[2] The Protection of Women from Domestic Violence Act, 2005, [13th September, 2005.]

[3]The Special Marriage Act-1954, S.27. Divorce.-(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-

(a) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other

than his or her spouse; or (b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

[4] The Indian Penal Code,1860, s. 498A- Husband or relative of husband of a woman subjecting her to cruelty:  Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

[5] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005,s18. Protection orders.-The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from-

(a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection order.

[6]Id.,s.19

[7]Id., s.20

[8]Id.,s.21

[9] Id.,s. 8. Appointment of Protection Officers.-(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act. (2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed. (3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may be prescribed.

[10]Id.,s.10, 10. Service providers.-(1) Subject to such rules as may be made in this behalf, any

voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a

company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time

being in force with the objective of protecting the rights and interests of women by any

lawful means including providing of legal aid, medical, financial or other assistance shall

register itself with the State Government as a service provider for the purposes of this Act.

[11] Id.,s.2. Definitions.-In this Act, unless the context otherwise requires,-

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent; (b) “child” means any person below the age of eighteen years and includes any adopted, step or foster child.

[12] Protection of Women from Domestic Violence Rules, 2006

[13] The Protection of Women From Domestic Violence Act,2005, S.2(E)

[14]The Protection of Women From Domestic Violence Rules (2005),R.5(1) “Upon receipt of a complaint of domestic violence, the Protection Officer, shall prepare a DIR in Form I and submit the same to the Magistrate and forward copies thereof to the police officer in charge of the police station within the local limits of jurisdiction of which the domestic violence alleged to have been committed has taken place and to the service

providers in that area”

[15] Code of  Criminal Proceure,1973, S.125(3)

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