Domestic Violence Against Women And Its Consequences

Table of Contents

• Introduction
• Definition
• Objectives of the Act
• Historical Background
• Types of Abuse Covered by the Act
  • Physical Abuse
  • Emotional Abuse
  • Psychological Abuse
  • Economical or Financial Abuse
  • Sexual Abuse
• Key Definitions Under the DV Act
  • Aggrieved Person
  • Domestic Relationship
  • Shared Household
  • Shelter Home
  • Duties of Shelter Home
  • Protection Officer
  • Duties and Functions of Protection Officer
  • Service Providers
  • Protection Orders
  • Residence Orders
  • Monetary Relief
  • Custody Orders
  • Compensation Orders
  • Magistrate’s Power to Grant Interim and Ex Parte Orders
• The Procedure of Filing a DV Offense and Court Duty
• Jurisdiction of the Court
• Laws Against Domestic Violence  
• Who Is Covered Under the Act?
• Statistical Data of DV Complaints During COVID-19 Pandemic
• Can a Man Lodge a Case For Domestic Violence?
• What Acts Constitute Violence Against Men?
• Consequences of Domestic Violence
  • Post-Traumatic Stress Disorder
  • Depression
  • Disassociation
  • Impact on Children
• Important Case Laws
• Criticism Of the Act
• Conclusion
• References

Introduction

Since time immemorial, Domestic violence is not a new issue. Generally, Domestic Violence refers to violence against women, especially in matrimonial homes. The Domestic Violence Act, 2002 (hereinafter called DV Act) has been succeeding in fulfilling the requirements of adequately defining all forms of domestic violence and providing redressal and protection to its victims. The aforesaid enactment introduces into the Indian legal system important steps in terms of the concepts, the issue which has been tackled on conceptual and practical grounds, and the viability of the implementation may be contested on certain grounds.

The Protection of Women from DV Act, 2005 is very promising legislation, which was implemented in October 2006, that combines civil remedies and criminal procedures to provide effective remedies to the women who become victims of domestic violence. The Government has taken many steps in the form of various policies and programs to promote the status of women and to realize women’s rights. Researchers’ view is that, despite some improvement,  India is unlikely to meet the sustainable development Goal (SDG-5), which focuses on gender equality and the elimination of all forms of violence against women and girls by 2030. But despite all the efforts, the basic issue that threatens and endangers the very existence of women is the issue of domestic violence against women.

Domestic Violence affects women from every social background irrespective of their age, religion, caste, or class. Women are the most vulnerable to domestic violence cases and are often targeted, but that does not mean men are not targeted. India is a patriarchal or male-dominated society. So it is often hard to believe that even males can be victims of domestic violence.  According to Aristotle “Women may be said to be inferior to men”. In the Journal of Epidemiology & Community Health Research has been published that ‘One in three women in India’ is likely to have been subjected to intimate partner violence of a physical, emotional, or sexual nature. The findings showed only one in 10 of these women formally reports: the offense to the police or health care professionals. Recently, since 2020 due to the Covid-19 pandemic, during the lockdown period, an alarming increase in the cases of Domestic Violence in India, has become a great matter of concern.

Definition

Domestic Violence can be described as violent or aggressive behavior within the home typically involving the violent abuse of a spouse or partner. The Black’s Law Dictionary defines Domestic Violence as “violence between members of a household, usually spouses, an assault or other violent act committed by one member of the household against another.” 

Domestic Violence has been recognized as an inhume and brutal crime by most nations. In General terms ‘domestic’ means ‘familial’ or something regarding home and ‘violence ‘ implies harm, therefore the term ‘domestic violence’ ordinarily means violence taking place at home. Other means of Domestic Violence are ‘Domestic Abuse’, and ‘Family Violence.”

Section 3 of the Protection of Women from Domestic Violence Act 2005, (hereinafter called PWDV Act) defines Domestic Violence: –- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) 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

(b) 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

(c) 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

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.—For the purposes of this section,—

(i) “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 aggrieved person and includes assault, criminal intimidation, and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman;

(iii) “verbal and emotional abuse” includes—

(a) insults, ridicule, humiliation, name-calling, and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes­—

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person 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 the aggrieved person, payment of rental related to the shared household and maintenance;

(b) 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 aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission, or conduct of the respondent constitutes “domestic violence” under this section, the overall facts, and circumstances of the case shall be taken into consideration.

The PWDV Act, 2005 has come into force on 26th October 2006. Widened the term ‘Domestic Violence in a meaningful manner to recognize domestic violence as a punishable offense. Also recognizes a Woman’s right to a violence-free home, bringing Women’s human rights into the sphere of the ‘home’ which has been an important site of violence. In India, Domestic Violence typically means violence suffered by an individual at the hands of their biological relatives but specifically covers the violence suffered by women from the male members or relatives in her family.

Objectives of the Act

The objective of the PWDV Act, 2005 lays down “An Act to provide for more ‘effective protection of the rights of Women’ guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”

In Vandhana v T Srikant 2007 SCC Online Mad 553

In one of the early cases since the enactment of the DV Act, Madras High Court observed that the Act was formulated to implement Recommendation No, 12 of the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and which was ratified by India in June 1993. Interpretation of the DV Act should confirm International Conventions and International Instruments and Norms.

In Ishpal Singh Kahai v Ramanjeet Kahai 2011 SCC Online Bom 412

The Bombay High Court reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for the security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and the prevention of the recurrence of acts of violence.

The main object of the Act is to provide more effective protection to the Constitutional rights of Women and to protect them against the violence of any kind occurring within the family. It provides an evil remedy for the enforcement of the rights of a woman i.g. Right to Residence, Maintenance, Custody, Protection, and Compensation.

Historical Background

The great Indian history shows that violence against women was prevalent in ancient times. It was believed that after the death of the husband, a wife had no meaning in her life and so with his dead body she too was forced to die as a ‘Sati.’ Later, the Britishers abolished the heinous practice of Sati on the advice of Raja Ram Mohan Roy. Today instead of making a woman die, she is forced to live an isolated life as a helpless and harassed widow in the scarcity of food, making her living by begging for food. The Indian Women’s movement from the 1920s until the 1970s was heavily influenced and directed by the external economic and political forces of the nation to the effect that Women’s issues were effectively sidelined, never occupying central concern in the minds of people.

Violence against Women was not considered an issue worthy of international attention or concern thirty years ago. Victims of violence suffered in silence, with little public recognition of their plight. Since 1980, Women’s groups have organized locally, nationally, and internationally to demand attention to the physical, psychological, and economic abuse of women. Violence against women especially violence within households has been recognized as a legitimate human rights issue. 

Ultimately, it touched the conscience of our legislation and the Indian Parliament came out with landmark legislation, PWDV Act, 2005. The legislation proved the Constitutional promise of equality, non-discrimination, and the right to life and liberty for women. It also marks compliance by the Indian State with its international obligations, under the Convention Against Elimination of all Forms of Discrimination Against Women (CEDAW)

Types of Abuse Covered by the Act

Physical Abuse

Is the most recognizable, horrific, most heard, and visible form of domestic violence. It has been defined in the Domestic Violence Act to include any act that causes bodily pain or danger to the life, limb, or health or development of the victim. Physical abuse is one of the first forms of violence people think of when they hear the words ‘domestic violence.’

Emotional Abuse

Emotional abuse includes verbal abuse, the perpetrators often give verbal threats to the victim such as yelling, name-calling, blaming, intimidation, and controlling behavior.

Psychological Abuse

Violence may be triggered by confining or reducing the victim’s social connections, preventing a victim from seeing friends and family, deliberately sabotaging the social connection of a victim, and segregating the victim from personal interactions.

Economical or Financial Abuse

Economic / Finance abuse occurs when one partner controls the financial independence and freedom of the other partner. The abuser does not provide the victims with the expenses, the victim is completely dependent on the abuser. The term ‘Economic Abuse’ introduced in the categories of abuses under the DV Act by the Government has been a remarkable step.

Sexual Abuse

According to DV Act, “Sexual Abuse is any abuse of sexual in nature that abuses, humiliates, degrades or otherwise violates the …the dignity of a Woman.” Generally, marital rape is considered a form of domestic violence and sexual abuse.

Key Definitions Under the DV Act

Aggrieved Person

According to the definition provided under the DV Act in Section 2(a), an “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.

Domestic Relationship

Section 2(f) in The Protection of Women from Domestic Violence Act, 2005

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.

Respondent

Section 2(q) in The Protection of Women from Domestic Violence Act, 2005

“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

Shared Household

Section 2(s) in The Protection of Women from Domestic Violence Act, 2005

“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

Shelter Home

Section 2(t) in The Protection of Women from Domestic Violence Act, 2005.

“shelter home” means any shelter home as may be notified by the State Government to be a shelter home for the purposes of this Act.

Duties of Shelter Home

Section 6 in The Protection of Women from Domestic Violence Act, 2005

6. Duties of shelter homes.—If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.

Protection Officer

Section 2(n) in The Protection of Women from Domestic Violence Act, 2005

“Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8

Duties and Functions of Protection Officer

Section 9 in The Protection of Women from Domestic Violence Act, 2005

 Duties and functions of Protection Officers.—

(1) It shall be the duty of the Protection Officer—

(a) to assist the Magistrate in the discharge of his functions under this Act;

(b) to make a domestic incident report to the Magistrate, in such form, and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;

(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;

(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;

(e) to maintain a list of all service providers providing legal aid or counseling, shelter homes, and medical facilities in a local area within the jurisdiction of the Magistrate;

(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;

(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and

(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

(i) to perform such other duties as may be prescribed.

(2) The Protection Officer shall be under the control and supervision of the Magistrate and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.

Service Providers

Section 2(r) in The Protection of Women from Domestic Violence Act, 2005

“service provider” means an entity registered under sub-section (1) of section 10

Section 10 in The Protection of Women from Domestic Violence Act, 2005

10. Service providers.—

(1) Subject to such rules as may be made on 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.

(2) A service provider registered under sub‑section (1) shall have the power to—

(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;

(b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place;

(c) ensure that the aggrieved person is provided shelter in a shelter home if she so requires and forwards a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.

(3) No suit, prosecution, or another legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.

Protection Orders

Section 18 in The Protection of Women from Domestic Violence Act, 2005

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 favor 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 gives the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

Residence Orders

Section 19 in The Protection of Women from Domestic Violence Act, 2005

 Residence orders.—

(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of the such aggrieved person.

(3) The Magistrate may require the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 197(3 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under subsection (1), subsection (2), or subsection (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under subsection (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

Monetary Relief

Section 20 in The Protection of Women from Domestic Violence Act, 2005

 Monetary reliefs.—

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage, or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable, and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

Custody Orders

Section 21 in The Protection of Women from Domestic Violence Act, 2005

Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for a protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for the visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

Compensation Orders

Section 22 in The Protection of Women from Domestic Violence Act, 2005

Compensation orders.—In addition to other reliefs as may be granted under this Act,    the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

Magistrate’s Power to Grant Interim and Ex Parte Orders

Section 23 in The Protection of Women from Domestic Violence Act, 2005 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 section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

The Procedure of Filing a DV Offense and Court Duty

1. The Aggrieved/Victim of domestic violence or any other witness of the offense on her behalf can file an FIR/Complaint with the Local Police Officer or Service Provider or directly to the Magistrate for obtaining orders or reliefs under the Act.
2. The Magistrate shall upon receiving the complaint, commence the hearing of the case within three days of the complaint being filed.
3. The Magistrate shall give notice of the date of hearing to the Protection Officer to be served on the Respondent and such other persons as directed by the Magistrate within a maximum period of two days or such further reasonable time as allowed by the Magistrate.
4. The Court shall as far as possible dispose of the case within a period of sixty days from the date of the first hearing.
5. The Court to establish the offense by Respondent can use the sole testimony of the aggrieved person.
6. The Court can pass a Protection Order upon finding the complaint genuine, which shall remain force till the aggrieved person applies for discharge.
7. The magistrate may alter, modify or revoke an order if he satisfies the receipts of an application from the aggrieved person after recording the reason in writing.
8. A Complaint can also be filed under Section 498 A of the Indian Penal Code, which defines the offense of matrimonial cruelty and prescribes the punishment for the husband of a woman or relative who subjects her to cruelty.
9. The aggrieved person can file an appeal to the Court of Session against any order passed by the Magistrate within thirty days from the date of order being served on either of the parties.

Jurisdiction of the Court

Section 27 of the DV Act provides that the First Class Magistrate Court or Metropolitan Court shall be the competent Court within the local limits of which:

a) Where the Aggrieved Person permanently or temporarily resides or carries on business or is employed or

b) Where the Respondent permanently or temporarily resides or carries on business or is employed or

c) Where the cause of action has arisen; Where the incident of domestic violence has taken place, 

Any order made under this Act shall be enforceable throughout India.

In Shyamlal Devda v Parimala (2020) 3 SCC 14

The Supreme Court held that a petition under DV Act can be filed in Court where the ‘person aggrieved’ permanently or temporarily resides or carries on business or is employed. 

In the case of Nasir Khan son of Shri Haji Hasan Raja v Smt. Rizwana Sheikh wife of Shri Nazir Khan 2018 3 RLW (Raj) 1842

The Honourable Rajasthan High Court held that for seeking the reliefs provided by the Act of 2005, victims of domestic violence cannot be compelled to invoke the jurisdiction of the Family Court.

One of the big challenges of effective implementation of the DV Act would therefore be to ensure that relief is sought by women facing violence not just before the Magistrate Court but in all Courts. 

In Sudhannya K N v Umashanker Valsan and Venugopalan v Jayashree V Nair

In this case, the Court held that DV Act guarantees larger rights in favor of the Woman by giving her the option to approach either the Family Court or Magistrate at her convenience. The Court further held that the Family Courts have the power under Section 26 to pass interim Protection Orders as well as Interim Residence Orders.

The Bombay High Court has upheld the contentions of the above case in 

Pramodini Vijay Fernandes v Vijay Fernands and Rajkumar Rampal Pandey v Sarita Rajkumar Pandey stated that if a legal proceeding is already filed in a Civil or Criminal Court affecting the aggrieved person and the Respondent relief under Sections 18, 19, 20, 21 and 22 of DV Act Could be granted by such Civil or Criminal Court.

The Bombay High court held that under Section 31 of the DV Act Family Court could even take cognizance of breach of interim orders. 

Laws Against Domestic Violence

1. Dowry Prohibition Act is the earliest legislation against domestic violence. Section 3 defined as “ any property or valuable security given or agreed to given, directly or indirectly one party to a marriage to the other, by parents of a party to a marriage to the other at or before to a marriage to the other at or before or anytime after the marriage.” 

2. Under Section 5 (iii) of the Hindu Marriage Act ..defines Section 5(iii) in The Hindu Marriage Act, 1955” The bridegroom has completed the age of twenty-one year and the bride, the age of  eighteen years at the time of the marriage.”

3. Section 498 A Indian Penal Code defines the Husband or relative of the 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 explanation.—For the purposes of this section, “cruelty means”—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”.

4. Section 304 B of the Indian Penal Code defines

 (1) “Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purpose of this subsection, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life”.

5. Section 3 of Prohibition of Child Marriage Act, 2006 defines  “Child marriages to be voidable at the option of the contracting party being a child.-

(1) Every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.

(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.

(3) The petition under this section may be filed at any time but before the child filing, the petition completes two years of attaining a majority.

(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts, and money: Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.”

6. The Prohibition of DV Act, 2005 defines  Domestic Violence and the parties involved. Section 3 defines “ physical, verbal, sexual abuse and even economic abuse. It also lays down the duties of Service Providers, Police Officers, Magistrate, Shelter Homes, and Medical Facilities while handling cases of domestic violence (Section 5,6, and 7). It appoints Protection Officers in each district to assist the Magistrate (Sections 8 & 9). It lays down the duties of the Government as well (Section 11”).

Chapter IV entirely deals with the procedure for obtaining orders and reliefs which includes amongst other things Counselling, Camera Proceedings, Protection Orders, Residence Orders, Monetary Reliefs, Child Custody, Compensation Orders, etc.

Who Is Covered Under the Act?

All women who may be mothers, sisters, wives, widows, or partners living in a shared household are covered under the Act. The relationship may be in the nature of marriage or adoption, and family members living together as a joint family are also included. However, female relatives of the husband or the male partner cannot file a complaint against the wife or female partner.

E.g: the mother-in-law cannot file an application against a daughter-in-law, but she can file an application against her daughter-in-law for abetting her son to commit violence against her. 

Statistical Data of DV Complaints During COVID-19 Pandemic

Over 5000 Women had complained to the National Commission for Women (NCW) of facing domestic violence in 2020 due to the effects of the lockdown during the 2020-21 pandemic, as compared to 3,369 domestic violence complaints during 2019-2020. As per the reports of NCW, the number of complaints had risen to 6049 during 2020-21. The complaints were raised during the lockdown period due to more women being forced to abuse and violence as they were confined to their homes and their abusers. Less than 40% of Women could seek help for relief Globally. Institutional response to domestic violence had become a serious issue, as women were trapped with their abusers in their homes with no place to move or even get in touch with their family and friends.

More than 70% of Women who experienced physical violence in major States could not seek help or tell anyone about it. Less than 20% of Women who experienced physical violence sought help.

Can a Man Lodge a Case For Domestic Violence?

Domestic Violence is primarily Welfare Legislation and has no provision for men to lodge cases against domestic violence against Women. Indian Domestic Violence is silent as the protection required for men from domestic violence. An aggrieved man can file for Divorce/Judicial Separation on the ground of cruelty i.e: Section 13 (1), 13 (a) of the Hindu Marriage Act 1955.

What Acts Constitute Violence Against Men?

Due to the different manifestations, violence against Men is not considered as serious. Violence against Men is more mental, verbal, and emotional, violence occurs as compared to physical violence in most cases. The impact of violence against men is less apparent and is less likely to come to the attention of others.

The law only offers relief to women. Men cannot avail of a similar legal remedy to protect themselves in India. This discrimination was removed by the Supreme Court, the bench of Justices Kurian Joseph and Rohinton F Nariman ruled on 6th October 2016, that this provision frustrated the objective of the  ‘perpetrators and abettors of domestic violence can be legislation since women too. The word ‘adult male’ has been struck down by the domestic violence Act. However, this new legislation still did not include Men as victims and was later changed back to the original. The offense under Section 498 A as per the Committee on 243rd Law Commission Report is cognizable and non-bailable, further acting as a big deterrent in society. In regards to men being victims, making the definitions and provisions wider and its ambits would be beneficial. 

In the case Hemant Baburav Basante v The State of Gujarat & Anr SLP (Crl) 5806/2018 

In the Supreme Court, three Judges expressed concern regarding the multiplicity of proceedings that will ensue in matrimonial disputes if a man cannot visitation rights in a proceeding initiated by a woman under the DV Act.

Submission made by AG, application for visitation rights under Section 21 of the DV Act, is for temporary Custody only and can be filed by the aggrieved Woman. A Man cannot be an aggrieved person under the DV Act.

The CJI said ”The question is that already there are enough Acts. There is the Maintenance Act, the Guardian and Wards Act and the Protection of Women from Violence Act, Four, Five Acts are there and they are moving from one Court to another…This is the time for the legislature to look into these things.

The divisional Bench also said “why don’t the legislature look at it with this angle…why don’t you bring all this under one umbrella in one go”

In Mohammed Zakir v Shabana & Ors Crl Petition2351 of 2017

The High Court of Karnataka held that a petition filed by the husband or an adult male (as an aggrieved person) can be entertained, later the verdict was withdrawn by Justice Anand Byrareddy by an Order.

Sandhya Wankhede v Manoj Bhimrao Wankhede and Others (2011) 3 SCC 650

In this case, the Supreme Court held that females can be respondents in Domestic Violence complaints. The Appeal was allowed with a direction to the Trial Courts to consider the Respondents in the proceedings that the provision under Section 2 (q) of the DV Act does not exclude female relatives of the husband or male partner, putting to rest the issue holding from the ambit of complaint that can be made under the provisions of the DV Act. Therefore, the complaint is maintainable against the female relative, but not just maintainable against the adult male person.

Previously, Men were seen as protectors of their families. But nowadays, both Men and Women work, raise and manage their households, contributing equally to their incomes. These days, Men are no longer superior to Women in terms of strength. They have begun to open up about the Domestic Violence they face, and share their pain, agony, and struggles.

Through effective legislative changes, public awareness campaigns, and the dismantling of stereotypes and preconceived notions, Domestic Violence against Men can be recognized.

Consequences of Domestic Violence

The violence affects not only Women but Children, Families, and sometimes Communities as well. The major consequences of domestic violence are:

Post-Traumatic Stress Disorder

This disorder occurs when the mental health condition is triggered when you go through a terrifying level. The common symptoms include anxiety, nightmares, flashbacks, and uncontrollable thoughts.

Depression

Depression is the major effect of domestic violence. It is more than just temporary sadness. One can get indulged in prolonged sadness, changes in appetite, unexplained crying, feeling hopeless, and loss of energy, pleasure, and interest in something. In severe cases, it can result in suicidal attempts too.

Disassociation

The person seems to be disconnected when he isolates himself from the world and even if he is in a social gathering. He often daydreams. It can get chronic and it impairs the ability of a person to function in real work. 

Impact on Children

Children who witness domestic violence may develop serious emotional, behavioral, developmental, or academic problems. With domestic violence, children and teens who grow up in the household are more likely to use violence at School or Community in response to perceived threats, more likely to use drugs, more likely to commit crimes, especially sexual assault, and more likely to become abusers in later life. Even if children are not themselves abused, living in a family in which there is violence between their parents puts children at risk. These children have been found to exhibit high levels of aggressive and antisocial as well as fearful and inhibited behaviors. Studies have shown that children who have experienced parental violence have more deficits in social competence and higher levels of depression, anxiety, and temperament problems than children in non-violent homes.

Important Case Laws

Multiple cases including Madras High Court case Vandana v T, Srikanth Krishnamachari, and Anr. (2007) 6 MLJ 205 Mad and Bombay High Court case Ishpal Singh Kahai v Ramanjeet Kahai (2011) SCC Online Bom 412 have reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic or family sector who had no proprietary rights.

Gajanan Ram Rao Kanegaonkar v State of Maharashtra & Ors. Criminal Revision Application No.341/2014

In this case, the Court held that when only a domestic relationship is in existence the provision of the DV Act can be invoked not in the case when a domestic relationship ceases. When the complaint has been filed only with a view to harassing the other side of the complaint was an abuse of the process of the court.

Anurag Gupta v Swati Mishra Crl Appeal No. 22/2015

High Court of Rajasthan (Jodhpur Branch) held that the definition of aggrieved person under Section 2 (a) of the DV Act, 2005 would include any Woman including a foreign citizen, such a Woman who is subjected to Domestic Violence is very much entitled to get the protection of Section 12 of the Act.

Krishna Bhattacharjee v Sarathi Chaudhury (2016) 2 SCC 705)

The Supreme Court observed that judicial separation does not change the status of the wife as an ‘aggrieved person under Section 2 (a) read with Section 12 and does not end the domestic relationship under Section 2 (f) of the DV Act. It stated that judicial separation is not the complete severance of a relationship that happens in divorce, but is the mere suspension of the husband-wife relationship.

Vikas Bhutani v State & Anr Crl Rev P No. 579/2017 & Crl M.A No. 12671/2017 (Stay)

The Delhi High Court held that maintenance awarded to a wife is not a bounty and it is awarded to her for her survival. 

In the light of the objective of ‘maintenance’ provision for Women and observed

“The object of the grant of maintenance is to afford a subsistence allowance to the wife, who is not able to maintain herself, then the award normally should be from the date of the application. For the Court to award maintenance from the date of the order there have to be compelling circumstances for the Court to take such a view.”

Sadhana v Hemant Cr Revn Application (Revn) No, 121/2018

The Bombay High Court observed that a divorced wife cannot be entitled to the protection under DV Act. If at the time of filing a petition, the wife has already been divorced, there cannot be any domestic relationship.

Ajay Kumar v Lata alias Sharuti (2019) SCC Online SC 726

The Supreme Court observed that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner under Section 2 (q) of the PWDV Act, 2005

Shivanand v Basavva Crl Petn No, 101378 (2009)

The Dharwad Bench of the Karnataka High Court held that the maintenance awarded under the PWDV Act cannot be enhanced under the provisions of the CrPC. The issue arises in this case “whether the maintenance awarded under the DV Act can be sought to be enhanced under the CrPC?”

The Court observed that “ maintenance that is awarded under Section 125 of the CrPC can be varied in an application filed under Section 127 of CrPC. What is the sine qua non is that an order of maintenance should precede a petition under Section 127 of the CrPC, failing which a petition under Section 127 of the CrPC seeking enhancement of maintenance is not available.”

The fact that provisions of the Act were invoked for the grant of maintenance and provisions of CrPC are invoked seeking enhancement of maintenance and provisions of CrPC are invoked seeking enhancement of maintenance cannot be countenanced in law. 

Shamshada Akhter v Ajaz Parvaiz Shah 3722349/2019

The Court fined the applicant for misuse of provision. The Court held that the PWDV Act, 2005 was enacted to protect women from violence and not to harass the spouse or aggravate marital discord.

The Court observed “It is quite obvious that the object of Protection of Women from Domestic Violence Act, is to give protection to Women from the violence which takes place when they live in such domestic relation. This is to protect legitimate and genuine cases where the aggrieved person does not indulge in acts that defeat the purpose and object of the legislation. Domestic Violence Act has not been enacted to cause harassment to the other spouse or to further aggravate the matrimonial discord to the extent of throwing the respondent out of his own house.”

The Court said that the Act cannot be allowed to be used in a manner that spoils the lives of Couples living peacefully.

Satish Chander Ahuja v Sneha Ahuja Crl Appeal No. 2483/2020

The High Court observed that the question is whether the suit could be simply decreed by the Trial Court on the basis of the title without weighing the effect of the statutory right in favor of the Appellant.

The following observations made by the High Court

“….Thus, I find that the DV Act has aspired to bring in a sea change in the rights of persons affected by domestic violence by ensuring that irrespective of the ownership of the suit premises where the aggrieved person resided, she would still retain the right to reside therein as long as she was able to prove that she had endured domestic violence while being in a domestic relationship with the owner of such premises.”

Kanaka Kedar Sapre And Anr v Kedar Nahar Sapre Civil Appeal No. 2790/2021

Bombay High Court ruled that an application cannot be filed for monetary relief under the PWDV Act, 2002 on behalf of the aggrieved person if such person is not alive. The petition was dismissed. The court observed “The right to claim compensation and monetary relief under DV Act are personal statutory and inalienable rights of an aggrieved person. But as the aggrieved person dies, these rights just end. Hence these rights were not enforceable by the legal representatives of the aggrieved person.” 

Surendra Kumar v The State of Jharkhand & Ors. 2022 Live Law (Jha) 24

In this case, the petition was filed for quashing the Order passed by the Judicial Magistrate Ist Class, whereby cognizance of offence under Section 31 of the PWDV Act, 2005 was taken against the petitioner.

Jharkhand High Court held that taking cognizance, holding a person guilty and imposing penalty all on the same day is unknown to the law. The impugned Order was accordingly set aside. The Court said “It is an admitted fact that the condition precedent of Section 31 of the Act has not been taken care of by the learned Court by passing Order under Section 31 of the Act. Thus invoking this Section without jurisdiction moreover on the same day cognizance has been taken without hearing the petitioner and penalty has been imposed which is unknown to the law”

Criticism Of the Act

The lack of access to support systems and reduced opportunities in India to complain about Domestic Violence has led to an increase in Secondary Victimisation of many Women. Law does not consider the protection of Women victims as an essential service in respect of implementation. The Preamble of the Act itself suggests that protection must be effective for immediate relief as well as compensation and for rehabilitation of Women victims. 

NGO filed the case in May 2021, ‘We the Women of India argued that for the successful implementation and execution of the 2005 Act, it is necessary that the contact details of the concerned ‘Protection Officers’ or the ‘Service Providers’ as well as ‘Shelter Homes’ are made easily available and accessible to the aggrieved Women for necessary and timely assistance.’

Though the Supreme Court has sent the notice to the Central Government seeking the implementation of the mandatory provisions of Chapter III of the DV Act, discusses the powers, duties, and appointment and functioning of the Protection Officer. This case is still pending. However, it is not easy to find a Protection Officer. There was a shortage of Protection Officers as per the news published in the Times of India, Ahmedabad Edition, 2012,

 The Gujarat High Court in Suo Moto v State of Gujarat

Protection Officers will not be able to adequately and quickly address the needs of those Women who want to file a complaint when they are given multiple roles. The PWDV Act does not reach the Women Victims despite the legislative measures and consequential arrangements.

The following are the reasons for the non-implementation of the DV Act are:

Firstly,

Community level awareness is demonstratively low about the protection as per the Research Studies, particularly the Institutional Measures, which are provided under the Act.

Secondly,

Wherever there is little awareness exists about the institutions for prevention of domestic violence these Institutions are not easily accessible.

Thirdly,

The Institutions established for the Protection of Women from Domestic Violence are not adequately equipped to effectively serve the Victims of violence due to inadequate funding for converting legal provisions into practical actions.

Fourthly,

The perspective of prerogative, the Violence by Male on Women, hence it is bound to take place.

Lastly,

Women continue to suffer violence within the domestic sphere and their Fundamental Human Rights are manifestly violated due to unorganized and no systematic approach undertaken by the State to make the system effectively function for Women.

Conclusion

PWDV Act, 2005 has helped several Women the protection from domestic violence, but it is still a major issue faced by a majority of Women in India. Appropriate provisions should be incorporated to deal with Domestic Violence for proper implementation and for the removal of certain lacunas. Though the World has achieved millions and reached Zeniths, Domestic Violence still has not vanished from the surface of the earth. It is important to adopt a more inclusive and holistic legal response to cater to the developing, modern Societies to protect Women’s rights against exploitation and violence.

The times have changed significantly, there is a dire need to make certain changes in order to make the Act more inclusive of the current times. To protect the interests and dignity of Women, we need a systematic and coordinated legal system. And it must also apprise itself of the social realities of a Woman’s life to effectively deliver justice in cases of violence and exploitation experienced by the Women.

Today, Domestic Violence is one of the most horrendous kinds of abuse suffered by Women in our Society. We need to stand together and make tougher laws to eradicate this type of abuse, which will protect the victims from this abuse.

References

1. https://wwwlatestlaws.com Critique-Domestic Violence Act: A Ray of Hope? By Smera Sarnath Sonker
2. Aditi Singh, Critical Examination of the Domestic Violence Act, 2005-Lexforti https://lexforti.com
3. The Black’s Law Dictionary, 1564 (8th ed.) 2004
4. Diva Rai, Protection of Women from Domestic Violence Act-i Pleaders Blog https://blog.ipleaders.in https://ncadv.org/statistics National Statistics Violence Fact Sheet
5. https://shodgangotri.inflibnet.ac,in/bitstream/123456789/5574/2/02-synopsis pdf
6. https://en.m.wikipedia.org. Domestic Violence
7. Kaamila Patherya, 2017, vol.9 No. 11/PG 1/1 Domestic Violence and the Indian Women’s Movement A Short History http://www.inquiriesjournal.com
8. https://www.Myadvo.in What is Domestic Violence? What are its types, causes, and effects
9. https://www.hindustantimes.com Domestic Violence Complaints against Women spiked in the year of lockdown
10. Malavika Rajkumar, Explainer: Steep rise in domestic violence complaints, but Where are the Protectors?
11. Prof. Prabir Kumar Pattnaik, Siddharth Das Domestic Violence Laws in India, PalArch’s Journals https://archives.palarch.nl
12. Ravneet Kaur and Suneela Garg- Addressing Domestic Violence Against Women: An unfinished Agenda https://www.ncbi.nlm.nih.gov/pmc/articles/PMC 2784629
13. https://www:helplinelaw.com Domestic Violence in India
14. Sharmeen Hakim, Domestic Violence Act-Legal Representatives cannot seek Monetary reliefs on behalf of Deceased Woman