What Women Need To Know To Save Battering

26th October 2006 witnessed the first significant attempt to recognize domestic abuse as a punishable offence. This law extends its provisions to those also who are in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.

What is special about this new law on domestic violence?

Of all forms of criminal behaviour, domestic violence is the one among the most prevalent but which is the least reported.

Till 2005, remedies available to a victim of domestic violence was divorce in the civil courts and a criminal case U/Sec. 498A IPC in criminal courts . the nature and scope of these remedies were very much limited. There was no emergency relief available to the victims; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted. during this period of pendency the victim was invariably at the mercy of the abuser.

And, the relationships outside marriage were not recognized despite the fact that such relationships are in vogue these days.

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 2005 was passed.

Who are going to be benefited by this Act?

Women and children are the primary beneficiaries of this new Act . 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 reads, “"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.

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 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. Sec. 2(b) states that "child" means any person below the age of eighteen years and includes any adopted, step or foster child;

Who is 'respondent' (or the Abuser) under this law?

Section 2 (q) says that "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. It means 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.

Are the benefits of this law available only to the married women?

Significantly, this law has recognized live-in relationships for the very first time. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him.

According to section 2(a), any relationship between two persons who live, or have at any point of time lived together in the shared household, is considered a 'domestic relationship'.

This includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships' are not restricted to the marital context alone.

'Domestic relationships' also cover sisters, mothers, daughters, women in relationships of cohabitation, single women etc. Any widow or unmarried sister or daughter who is harassed within the home can also resort to the new law.

The law also protects women in fraudulent or bigamous relationships, or in marriages deemed invalid in law.

What is the domestic violence in this law?

Section 3 of the law says that 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.

Hence any act/conduct/omission/commission that harms or injures or has the potential to harm or injure will be considered 'domestic violence'.

This law, thus takes into account all or any of 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.

The law says any definition of domestic violence must detail the fact that it is a human rights violation. Further, the law details the different forms of violence faced by women, and ensures that such interpretations are not left solely to the discretion of the judges.

What are the various forms of abuse?

Explanation I to sec. 3 states that 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 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.

Physical Abuse is defined as any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health, or an act that impairs the health or development of the person aggrieved, or that includes assault, criminal intimidation and criminal force.

Sexual Abuse is any conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of the person. The law also covers instances where a woman is forced to have sexual intercourse with her husband against her will.

Verbal and Emotional Abuse has been defined as any insult, ridicule, humiliation, name-calling and such acts. A woman who is insulted and ridiculed for, say, not being able to conceive, or for not having produced a male child, can now take recourse to this law. Any repeated threats to cause physical pain to any person in whom the person aggrieved is interested in other words, if say the abuser were to threaten the children, or relatives, of the aggrieved party will also be covered under this head.

Economic Abuse is a very forward-thinking, important part of this definition. The deprivation of economic or financial resources to which the aggrieved woman or child is entitled under law or custom, or which the person aggrieved requires out of necessity, can be claimed under the provisions of this law; withholding such resources now falls under the category of economic abuse. This provision comes into play in instances of marital disputes, where the husband tends to deprive the wife of necessary money as a weapon. The law also sees a husband who sells off his wife's jewellery and assets as being guilty of economic abuse.

A husband, under this provision, cannot dispose of household effects, cannot alienate her from her assets or any other property in which the aggrieved person has an interest or entitlement by virtue of the domestic relationship. A husband may not sell or use stridhan (dowry) and/or any other property jointly or separately held by the wife.

How this law ensures the compliance of the protection orders?

Sec. 31 of this Act reads as:

31. Penalty for breach of protection order by respondent.-

(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.

The Court can also pass interim protection orders for the relief of residence to the victim, monetary compensation to her and a restraint to the abuser or the respondent further restraining him from committing further acts of Domestic Violence.

An important addition to the law ensures 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 recognized by this law?

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 households' that is, a home or homes 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.

Sec. 2(s) of the act is as follows:

(s) "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;

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, recognizes 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, arranged 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 avenues for an abused woman to get relief. She can get, 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.

Thus, an accused person will be liable to have charges framed under both the old law and the new one. Further, the offences are cognizable 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.

How does the law define 'shared household'?

According to Section 2(s), as above, a household where the aggrieved person lives/lived in a domestic relationship, either singly or along with the respondent, is a shared household.

This applies whether the household is owned or tenanted, either jointly by the person aggrieved and the respondent, or by either of them, where either the person aggrieved or the respondent or both jointly or singly have any right, title, interest or equity.

Shared household also includes a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or person aggrieved has any right, title or interest in the shared household.

However, the ownership pattern of the household cannot be affected by the Act in other words, the fact that a woman lives in a home legally owned by her husband does not under the Act alter the legality of ownership; it does not for instance transfer that ownership in whole or part to the wife.

What new mechanisms have been recommended to implement the law?

Section 8 of the law provides for the setting up and function of Protection Officers.

These officers, to be appointed by state governments, will be under the jurisdiction and control of the court, and will be responsible to the court for monitoring the cases of domestic abuse.

The PO will assist the court in making a Domestic Incident Report or an application for a protection order on behalf of the aggrieved woman and/or child. POs will ensure that aggrieved people are provided legal aid, medical services, safe shelter and other required assistance.

POs will ensure that necessary information on service providers is provided to the aggrieved woman, and that orders for monetary relief are complied with.

Importantly, the PO can be penalized for failing/refusing to discharge his duty, with the proviso that prior sanction of the state government is required.

Service Providers are a vital tool in the implementation of this act. Service Providers, as defined by the law, are private organizations recognized under the Companies Act/Societies Registration Act.

They will have to register with the state government as a service provider to record the Domestic Incident Report and to get the aggrieved person medically examined.

The Service Providers will among other things ensure that the aggrieved person is provided accommodation in a shelter home, if she so requires. A Service Provider is protected for all actions done in good faith, in the exercise of the powers under this Act, towards the prevention of commission of domestic violence they are, thus, protected by law and cannot be sued for the proper exercise of their functions.

The new law, thus, recognizes the role of voluntary organizations in addressing the issue of domestic violence. NGOs working for women's rights can now register as Service Providers under the Act.

The way ahead …

The government has passed the law; it now needs to put in place the mechanism of implementation. To this end, the government has to provide funding to encourage the registration of Service Providers who will need the protections of this new law.

The government will also have to initiate a widespread campaign for public awareness. It will also need to implement training programs to sensitize the police, media and judiciary to the dimensions, scope and functioning of this new law.