Background:
Remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser. And, relationships outside marriage were not recognized.
The main purpose of the legislation is to provide civil remedies to the victims of domestic violence. The personal laws also offer little help to a spouse who does not wish to separate from her husband. The concept of statutory protection to women who have been living in conditions of violence does not exist in the personal law jurisprudence. The matrimonial laws, prevalent in our country and codified in the personal laws, fail to address the right of residence to the aggrieved person. The awards for maintenance or alimony are improper and inadequate and are mostly granted in the nature of monthly payments or one-time settlements, which are altogether insufficient to address the woman's needs. Hence in all these situations, the woman's basic right to shelter and reside in the house, where she had been living in a domestic relationship, is not addressed. It is these areas that the DV Act means to address.
What the act provides:
A definition of domestic violence for the first time in Indian legislation. The definition of civil wrong of domestic violence in the DV Act conforms to the United Nations framework for model legislation on domestic violence and CEDAW. The definition includes various forms of domestic violence such as sexual abuse including indirectly including child sexual abuse and marital rape, physical abuse, verbal and emotional abuse and economic abuse.
The rights to reside in a shared household and protection against violence are the most important aspects of the law, where the right to reside in the shared household has been recognized for the first time.
The definition of person aggrieved also includes the child along with daughters, widows , 'second wives' or women who believe themselves as 'legally' married to their spouse or women who are thrown out of the matrimonial homes after being told that there was no marriage since the essential ceremonies of marriage were not performed. These were women who till now did not have any legal recourse.
Relief’s provided to the aggrieved person:
• Protection Orders: acknowledges the right to protection from violence which was absent in law till now. The aggrieved person can get orders prohibiting the respondent from committing or abetting in committing violence, entering the workplace, school or residence, alienating any assets, or an other act specified in the order.
• Residence Orders: which guarantees the right of the aggrieved person to reside in the shared household or be provide alternative accommodation.
• Monetary Orders: The court may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the person aggrieved and any child as a result of the domestic violence
• Custody Orders: the court may, at any stage of the hearing of the petition for protection order grant temporary custody of any child or children to the person aggrieved
• Compensation Orders: an order directing the respondent to pay compensation and damages for the injuries caused by the Acts of domestic violence committed by the respondent.
• Interim/Ex parte orders
• Counselling for the respondent
Mechanism: Protection Officers and Service Providers
The Protection 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 and providing assistance to the aggrieved person. The Protection Officer's role has been visualized as officers who are required to perform functions even outside the vicinity of the court room and providing assistance to the aggrieved person in implementing the orders of the court. Its role is also to co-ordinate with service providers for providing shelter, medical aid, assistance in collection of the stridhan of the person aggrieved.
Service providers: This provision is a recognition of the role of service providers especially NGOs who provide basic necessary services of medical aid, shelter, legal assistance etc., to survivors of domestic violence.
The breach of a Protection order can lead to a conviction upto one year and or a fine of Rs. 20,000.
Next Steps:
"…freedom from violence in the private domain still remains a distant dream for women in domestic relationships, a year after this revolutionary law came into the statute books." – Indira Jaising, “Family against woman,” The Indian EXPRESS. Friday, 26 October, 2007.
The passage of law is undoubtedly an important tool for changing the situation of domestic violence in the country. But its efficacy can be undermined if it is not accepted and supported by the community and stakeholders. To reinforce the DV Act legislation, we still must:
• Appoint Protection officers by all states, providing them with adequate resources to fulfill their duties and responsibilities in a meaningful way.
• Register service providers
• Disseminate on a large scale the law and the mechanisms to access it
• Appoint counsellors
• Train police vis a vis their roles and responsibilities
• Ensure adequate referral services such as shelter, medical assistance and legal aid are available in all districts.
Domestic Violence in India
Domestic violence, as defined by the DV Act, constitutes physical or mental harm, including sexual, verbal, emotional or economic abuse by a male member of the family or anyone living under the same roof. Harassment of the victim with a view to coercing her or any other person related to her to meet any unlawful demand for dowry or property is also covered under the law. The following statistics portray the grave problem of domestic violence in India:
• The National Family Health Survey (NFHS-III) carried out in 29 states during 2005 - 2006 and released in 2007 reveals over 37 per cent married women in the country are victims of physical or sexual abuse by their husbands
• It says nearly 45 per cent of women in the country, aged between 20 and 24, are married off before they reach 18, the legal age to marry. The number is over 50 per cent in eight states. See http://nfhsindia.org/
• A report by United Nation Population Fund found that some 70 percent of Indian women believed that wife-beating was justified under certain circumstance, such as refusal to have sex or for not preparing food on time.
• According to the National Crime Records Bureau, of 155,553 crimes committed against women in 2005 -- 68,810 were domestic violence cases
• Its statistics also show one dowry death every 77 minutes and one case of cruelty by husband and relatives every nine minutes
• A nationwide survey by the International Center for Women's Research shows that 52 per cent of women suffer at least one incident of physical or psychological violence in their lifetime
• A 2006 UNICEF report says 69 million children witness violence within homes in India
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