Legal Explainer on Domestic Violence

The first step in the right direction is to get a thorough understanding of what domestic violence is and what rights do we have concerning the same. The post intends to give a thorough understanding of the Protection of Women from Domestic Violence Act, 2005, and the procedures therein. Towards the end, we shall also be touching upon IPC section 498A.

What constitutes domestic violence?

The abovementioned act in section 3 explains domestic violence to be an act that injures, endangers life, limb, or health (both mental and physical) of the victim. It also includes any harassment caused to compel the women or her relatives to deliver dowry or any other valuable property or security. The definition under the section includes the following type of domestic abuses

1. Physical abuse includes any injury to causing bodily pain, danger to life and limb, or to the damage that can impair the growth of the concerned victim.
2. Sexual abuse: includes a compulsion to perform any unsafe, degrading, and harmful sexual conduct against the women.
3. Emotional abuse includes name-calling, insulting, wilful neglect, ridiculing with respect to children in the general or male child in particular.
4. Economic abuse means depriving the victim of financial resources and facilities which she enjoys under any custom, law, court order necessary to maintain household, children and herself, it also protects her interest in Stridhan and rent payment. The alienation of assets, securities, properties in which the women have an interest is also prohibited.

The very apparent act of domestic violence is any physical violence irrespective of its frequency and gravity. By the term ‘frequency’ I mean how often it happens and ‘gravity’ as in what exactly is the act of abuse.  It is often pushed out of the purview of abuse when a person gets violent, let’s say, a few times a year, or just once in his/her lifetime. Another factor that is paramount here is that, certain acts of violence are not considered serious enough to be complained against by the victims, for example, an act of slapping will be less grave than an act of burning or cutting. What people fail to acknowledge is that these small and so called “less grave” acts of violence that they ignore set a pavement for more serious and life-threatening acts. Hence, the fact that how much ever infrequent or minor an act is, it is still an act of violence, against which, everyone has a right and remedy.  

Who can institute a proceeding under the act?

As per the section 2(f) of the act, two people bound by the consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family; constitute a domestic relationship. So under the act, not only a wife but live-in partner, daughter other family members related in the blood can claim the relief. 

However, it is important to keep in mind that not all live-in partners can get a relief under the act but only specific relations satisfying criteria laid down in D. Velusamy v. D. Patchiammal falls under the ambit of the act. These criteria are 

1. Both have attained the legal age of marriage and competent to marry.
2. They should live together in a shared household for a substantial time behaving as spouses.

On behalf of the victim, anyone who knows the commission or likelihood of the commission of the act of domestic violence can file a complaint with the protection officer. No liability shall be affixed on such an informant.

Reporting Procedure

 This section shall breakdown the complaint filing procedure under the act-

1. The aggrieved person can approach the Protection Officer (PO) appointed in each district by the state government and tell her about the incident so occurred and also about the relief that she desires. 

The contact details of the protection officers can be accessed at this link http://ncwapps.nic.in/frmListStatePO.aspx. 

• Such PO should then forward the complaint to the Magistrate of first-class or Metropolitan Magistrate having the jurisdiction. A Domestic Incident Report (DIR) is also made. 

3. The aggrieved person has a right to ask for an arrangement of free legal aid under the Legal Services Authority Act, 1956.
4. The PO must get the medical examination of the victim done in cases of physical or sexual abuse. The copies must be forwarded to the police station and the magistrate. 
5. The victim can ask the PO to arrange for the shelter home if she believes that her persona is in any way not safe in her domestic environment. If such shelter home is provided, all the relevant details shall be forwarded to the local police and magistrate having jurisdiction in the area where the shelter home is located. The magistrate can also refer the victim to counselling. 
6. If the protection officer breaches the duties then she can be punished with one year of imprisonment or fine of Rs. 20,000. Complaints can only be made with the state sanction or officer appointed thereunder.

Alternatively, aggrieved women can also approach the service provider for the compliant registration, Service providers are NGOs registered under the Societies Registration Act, 1860 or Companies under the Company Act, 2013 to safeguard the rights of women. These Service Providers should record the complaint and forward the same to the Protection Officers and magistrate. They also have to make arrangements for medical tests and shelter homes. However, it has been observed that service providers usually take more time than the POs to act. Hence, it is preferable to approach the protection officers directly.

The victims can directly approach the magistrate also under section 12 of the act but it is better to follow the channels to be on the safer side as subsection 1 of the above-mentioned section 12 indirectly gives more credibility to the report of the protection officer.

What to expect after filing the complaint?

1. After receiving the application, the magistrate shall ideally fix the first hearing within three working days. 
2. The notice shall be given to the protection officer who shall serve it to the spouse or the relative before the hearing.
3. As per section 14 of the act, the magistrate may refer the matter for counselling by an expert welfare officer and fix the next hearing accordingly.
4. If this fails, the matter is taken to the court where framing of the issues is done and arguments and evidence are presented by both the parties which leads to the final decision by the court. An option of appeal is given in case one feels like the court has not been successful in delivering justice. 
5. Camera proceedings can be held if the magistrate believes that it is in the best interest of the victim to do so.
6. During the pendency of the proceedings, a victim may ask for any interim order, and magistrate shall grant it as he deems fit. Usually, such interim order is in the shape of a restraining order, residential order or the maintenance order. 
7. It is provided in the act that the cases under this act are to be resolved within 60 days. But usually, 1-1.5 years are taken to dispose of these cases.

Type of Reliefs under the act

The victim in her application may ask for the following types of reliefs from the court. One needs to put the relief they want from the court in the initial complaint itself

1. Protection Order– protection order is an order which prohibits any attempt to enter the place frequented by the victim, attempts to contact the victims, attempts to alienate, or charge the assets. The order intends to stop commission or abetment of domestic violence.

2. Residence order– under this relief, the magistrate may direct the respondent to vacate the household, restricts him and his relative from getting into the area used by the women, restrict him from alienating, renouncing the household, or charging the same. If the magistrate believes that wellbeing of the women can only be ensured outside the common household, he may direct the respondent to make accommodations for the women or pay the rent for the same. In some cases, a right to reside in a shared household can also be provided. Stridhan can also be asked to be returned. 
3. Monetary relief- the court shall provide for loss suffered by the aggrieved person due to the domestic violence including loss of earnings, medical expenses, losses, and damage of the property. The relief also includes the maintenance order for the petitioner and her children under and above the relief under section 125 of CrPC. It can either be monthly maintenance or lump sum payment. the relief has to be given taking in view the lifestyle of the women.
4. The magistrate can also grant during the pendency of the case, the temporary custody of the children to women.
5. The act also provides for the compensation orders for mental injury, shocked suffered by the victim.

 The Magistrate can send a copy of orders to the in-charge of the police station to implement the order. It is also the duty of the Protection Officer to ensure that the order and reliefs are properly implemented.

If the respondent fails to abide by the above-mentioned orders, it shall be a cognizable and non-bailable offence; he may be punished for one year and/or fine of Rs. 20,000. Section 32 of the act provides that the sole testimony of the aggrieved shall be the conclusive evidence of the breach. 

So far we have discussed, the domestic violence act, 2005. The complaint under the act is quasi-civil in nature. Arrest cannot be made under the same. The aggrieved party has another avenue under the criminal law which shall briefly be discussed in the next section. 

FIR under IPC 498A

Section 498A has a narrower ambit compared to the Protection of Women from Domestic Violence Act, 2005. Only the legally wedded wife can claim relief under this section. The FIR can be filed against the Husband or relative of the husband. The section defines cruelty as a wilful act that can drive the victim to commit suicide or causes grave injury to life, limb, and health (both mental and physical) of the wife. It also includes such harassment done with the intent of compelling the wife or her relatives to deliver dowry or any other valuable possession to the bridegroom side. It is to be noted there, that the threshold of injury is comparatively more 

“grave” being a keyword. 

The limitation period for filing the case under the section is three years since the day of the actual act. The aggrieved party can file an FIR in the police station where the act is committed, or where her matrimonial home is or where she goes after leaving the matrimonial home. The police have to register the FIR as it is a cognizable case. If he refuses so, the aggrieved may directly approach the magistrate or the superintendent of police. After the FIR is registered, the police officer must conduct a medical examination if the circumstances so require. After  recording of the FIR, the officer has to decide whether to make an arrest in the case or not. The usual practice is to arrest the accused in such cases. 

It is to be noted that the police officer cannot deny the registration of FIR on the grounds that the wife is not resorting to her remedies under the Domestic Violence Act. This can be located in section 5 of the Domestic Violence Act itself. The same also provides that the police officer must make the complainant aware of her rights to resort to the remedies with the Protection Officer, Service Providers, etc.

Complaint with National Commission of Women

Along with the remedies mentioned above, the aggrieved party can also make an online complaint with the NCW. To make an online complaint, the complainant has to access the link http://ncwapps.nic.in/onlinecomplaintsv2/frmPubRegistration.aspx. By providing simple information about the complainant and the respondent, like name, address, contact details, and details of the act, the complaints can be registered in a matter of seconds. The NCW usually responds within ten days with regards to further actions on the complaint. Alternatively, the commission also has 7217735372 as their WhatsApp number specifically dealing with the complaints of domestic violence. The complainant can make the complainant there as well.