Domestic Violence Act, 2005

OCT 21

Mains   > Social justice   >   Human Resources   >   Women and Child issues

IN NEWS:

  • In a recent judgement, the Supreme Court has termed the Domestic Violence Act 2005 for protection of women from domestic violence as a "milestone". It has also stated that under the Act, women can claim residence in the shared household that belongs not only to the husband but his relatives also.

DOMESTIC VIOLENCE ACT, 2005:

  • It is an act to provide for more effective protection of the rights of Women who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.
  • Domestic Violence Act 2005 was the first significant attempt in India to recognise 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.

                                          

BACKGROUND:

Till the year 2005, remedies available to a victim of domestic violence in the civil courts on grounds of divorce and in criminal courts (vide Section 498A of the IPC) were limited. There was no emergency relief available to the victim and the remedies that were available were linked to matrimonial proceedings. The court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser. The relationships outside marriage were not recognised. 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.

FEATURES:

  • Definition:
    • Any act/conduct/omission/commission that harms or injures or has the potential to harm or injure will be considered ‘domestic violence’.
    • The law considers 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. Hence, women do not have to suffer a prolonged period of abuse before taking recourse to the law.
  • Beneficiaries:
    • Any woman who is or has been in a domestic relationship with the ‘respondent’ in the case.
    • 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.
  • Respondent:
    • Any adult male member who has been in a domestic relationship with the aggrieved person is the ‘respondent’.
    • 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.
  • Right to residence:
    • During the pending disposal of the case, respondent cannot prohibit/restrict the wife’s continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship.
    • In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.
  • Other Rights of women:
    • 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 can claim through the courts Protection Orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation Order and Interim/ Exparte Orders.
    • She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.
  • Remedial measures:
    • Victims should be provided with adequate medical facilities, counselling and shelter homes as well as legal aid when required.
    • Counselling, as directed by the magistrate should be provided to both the parties involved or whichever party requires it.
    • The respondent has to provide relief to the victim to compensate for loss, including loss of earnings, medical expenses, any expenses incurred due to loss of property by destruction, damage or removal, and maintenance of the victim and her children.
  • Protection Officers should be appointed by the government in every district who preferably should be women and should have the necessary qualifications and experience.
  • Fixed timeline: All complaints are required to be heard and disposed of within 60 days.

ISSUES:

  • Social conditioning: The nurturing in a castist-patriarchal society like India does not factor in the elements of gender sensitivity. Women are usually considered second-class citizens and subordinate to men. Hence, reporting assaults often risks inviting stigma on the victim and dents the chances of victim to lead a normal married life.
  • Under reporting: Data provided by the National Family Survey (NFHS-4) showed that around 76% of the women who faced physical or sexual violence never sought help or informed anybody about it. This increases the chances of repeated offences.
  • Unempowered women: Many consider domestic violence as part and parcel of married life. Financial dependence, lack of education and little or no social support are some of the reasons for women choosing to suffer in silence.
  • Weak enforcement: In many occasions, the police urge the families to sort out the matter amongst ourselves. There have also been instances of humiliation and degrading treatment by the police.  
  • Delayed justice: The mounting pendency of cases in court does not allow timely disposal. Also, Protection officers are often overloaded with work and are not provided with guidelines in implementing certain provisions in the law, which adds to the delay.  
  • Shortage of Infrastructure: The notification of shelter homes and medical facilities has not been done by many states. Also, Shelter homes are far and few and the ones that exist are overcrowded. There have also been several cases of exploitation of women living in these homes.
  • Gender bias: The laws do not recognise abuse against men, nor does our society. Even if a man is sharing his suffering or his experience, he does not have the protection of the law and tend to be belittled by the society.
  • Misuse: There have been several instances where frivolous cases where filed. In the Rajesh Sharma case, the Court had gone a step further in legitimising this argument by laying down guidelines to prevent misuse of law of cruelty against women.
  • Marital rape: Marital rape is not an offence in India. It is neither included under the definition of “rape” under Section 375 of IPC and nor in the domestic violence act. This is despite Justice Verma Committee stating that it a violation of women’s fundamental rights guaranteed by the Constitution.

WAY FORWARD:

  • Behavioural change: Long term strategies are essential to bring about large-scale gender sensitization. Sensitisation should be made a part of the school curriculum from primary school onwards. There should also be a robust conversation around men, be it within their families, public for a or workplaces.
  • Capacity building: The police force and social service institutions have to be better trained to deal with survivors of violence. Also, there is a need to develop support systems for survivors through more swadhar homes, medical facilities and skill training facilities.
  • Community participation: There should be strong community driven measures to address the problem of culture of misogyny and normalised aggressiveness towards women.
  • Awareness measures: NFHS 4 data shows a general fall in the overall percentage of married women who experienced violence at the hands of their partners mostly due to increased awareness. Hence, women must be encouraged to be strong, vocal and intolerant of transgressions, however small they be.
  • Legal reforms: Gender neutral laws are required to address all the facets of domestic violence. Also, a balanced approach is essential to prevent its misuse, while ensuring adequate protection.
  • Faster delivery of justice: The government should look at establishment of courts specializing in crimes against women. Also, adequate infrastructure and man power must be made available to the courts to reduce the huge pendency in cases. We have strict laws. What we need now is the surety of punishment.

PRACTICE QUESTION:

Q. The risks of violence that Indian women face during the current COVID-19 crisis cannot be ignored. Discuss. What measures have been taken in India to prevent such violence?