Protection of Women from Domestic Violence Act, 2005

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Protection of Women from Domestic Violence Act of 2005 .
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Parliament of India
  • 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.
Citation Act No. 43 of 2005
Enacted by Parliament of India
Assented to13 September 2005
Commenced26 October 2006
Status: In force

The Protection of Women from Domestic Violence Act 2005 [lower-alpha 1] is an Act of the Parliament of India enacted to protect women from domestic violence. The law came into force on 26 October 2006. For the first time in Indian law, the Act defines "domestic violence", with the definition being broad and including not only physical violence, but also other forms of violence such as emotional, verbal, sexual and psychological abuse. [1] It is a civil law meant primarily for protection orders, rather than criminal enforcement.

Contents

Definitions

The Protection of Women from Domestic Violence Act, 2005 is different from the provisions of the Indian Penal Code in that it provides a broader definition of domestic violence in what it covers and who it protects. [2]

Pursuant to the Act, the aggrieved person is defined as "any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to domestic violence by the respondent." [3] This law protects not only women from violence within their husband-wife relationships, but women living in the same home with people with whom they are in a domestic relationship with. This protects women from violence within their relationships by marriage (ex: husband-wife, daughter-in-law with father-in-law/mother-in-law/etc), relationships by blood (ex: father-daughter, sister-brother), relationships by adoption (ex: adopted daughter-father), and even relationships in the nature of marriage (ex: live-in relationships, legally invalid marriages). [4] This Act was considered to be the first piece of legislation to provide legal recognition and protection to relationships outside of marriage. [5]

Domestic violence is defined by Section 3 of the Act as [6] "any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:

  1. 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
  2. harasses, harms, injures or endangers the aggrieved person 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
  3. 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
  4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person." [6]

The Act includes and defines not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse through the section Chapter 1 - Preliminary. [3] [7]

Scope

Primarily meant to provide protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives, the law also extends its protection to women living in a household such as sisters, widows or mothers. [8] Domestic violence under the act includes actual abuse, whether physical, sexual, verbal, emotional or economic, or the threat of abuse. [2] This definition also includes harassment by way of unlawful dowry demands to the woman or her relatives. [8] Recently a District court in Mumbai has observed that Domestic Violence is not limited to mere physical injuries or abuse, but includes sexual, verbal, emotional and economical abuse Read more

Options of aggrieved person

Rights

Pursuant to Chapter III of the Act, the aggrieved person has the right to: [9]

  1. "Apply for a protection order, an order for monetary relief, a custody order, a residence order, and/or a compensation order;
  2. "Free legal services under the Legal Services Authorities Act, 1987;
  3. "File a complaint under section 498A of the Indian Penal Code."

The aggrieved person also has the right to reside in the shared home regardless of whether or not she has any title or ownership over the home.

Shelter homes

The Act recognizes the aggrieved person's right to reside in the shared household; however, the Act also establishes the aggrieved person's right to reside in a shelter home as a form of relief. A Protection Officer or a service provider may also request this shelter on behalf of the aggrieved person. [6] The Ministry of Women and Child Development in each State or Union Territory is required to recognize and notify of shelter homes available to aggrieved persons.

Medical facilities

Medical facilities are bound to provide free medical aid, even if the aggrieved woman requests aid without any prior recommendation either from the Protection Officer or the service provider. The obligations of the medical facility are independent of, and shall be fulfilled regardless of the fulfillment of, those of the Protection Officer and service provider. [3]

Implementation

According to Shalu Nigam, there are several gaps in the implementation of laws intended to protect women from domestic violence, including the 2005 Protection of Women Against Domestic Violence Act. [10] Lack of awareness of the law, and therefore the accessibility and awareness of services, types of relief, and legal rights, prevents proper implementation of the law. [11] Some of these implementation issues revolve around some districts, such as Odisha, giving these new regulation responsibilities to existing officers rather than employing new Protection Officers. This implementation gap results in duties pertaining to the Act being unfulfilled as PO responsibilities fall secondary to the officers' prior duties. [12] [11] Another barrier to the implementation of the law is the lack of meaningful immediate relief for survivors of domestic violence, such as "practical remedies in terms of medical aid, short-stay homes, creche facilities, psychological support, shelter homes or economic or material assistance", according to Shalu Nigam. [10] In most districts, shelter homes are the only available form of immediate relief; survivors of domestic violence often also need "medical treatment, trauma counseling, clothes and ready cash, which are not provided in the shelter homes." [11]

Beyond enforcement, implementation is also dependent on the slow-moving social acceptability of reporting these cases. [13]

Criticism

India's Committee on Reforms of Criminal Justice System wrote a report on offenses against women, in which the committee sought to expand the definition of "wife" to include women who lived with a man as his wife for a long period of time "during the subsistence of the first marriage". [14] This specification implicated this expanded definition of "wife" refers to relationships between a woman and an already married man, rather than non-marital relationships. When Maharashtra attempted to follow the recommendations in the committee's report, the legal status of non-marital, live-in relationships was brought into public discussion. [5]

The protection of women in non-marital live-in relationships in the same law applied to marital relationships was construed as an effort to legalize secondary marriages or non-marital live-in relationships. [5] The committee's recommendations were in fact cited in a legal case, Chanmuniya vs Virendra Kumar Singh Kushwaha and Another (2010), to support an interpretation of the definition of "wife" to include relationships where a marriage is "presumed" due to a long period of cohabitation. [15]

One criticism revolves around the law's lack of effective force in responding to the criminal act of domestic violence. As the law serves chiefly as a civil law, a further offense (such as violating a Protection Order issued under this law) is required before triggering criminal law sanctions against the respondent, such as arrest and imprisonment. However, groups involved in drafting the law believed this would provide more rapid and flexible relief for the victim. [16] [17]

Men's organizations such as the Save Indian Family Foundation have opposed the law, arguing that it might be misused by women during disputes. [2] [18]

Renuka Chowdhury, the Indian Minister for Women and Child Development, agreed in a Hindustan Times article that "an equal gender law would be ideal. But there is simply too much physical evidence to prove that it is mainly the woman who suffers at the hands of man". [19]

Former Attorney General of India Soli Sorabjee has also criticized the broad definition of verbal abuse in the act. [20] Global health expert & Director of Edward & Cynthia Institute of Public Health, Dr Edmond Fernandes has talked about how educated women use this as a tool of legal exploitation to harass men. [21]

According to the then President of India, Pratibha Devisingh Patil, "Another disquieting trend has been that women themselves have not been innocent of abusing women. Some surveys have concluded that 90 percent of dowry complaints are false and were registered primarily to settle scores. It is unfortunate if laws meant to protect women get abused as instruments of oppression. The bottom-line therefore, is the fair invocation of legal provisions and their objective and honest implementation." [22]

See also

Notes

  1. ↑ hindi घरेलू हिंसा से महिला संरक्षण अधिनियम 2005

Related Research Articles

Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and doesn't always involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely classified as rape by many societies around the world, and increasingly criminalized. However it is repudiated by some more conservative cultures.

<span class="mw-page-title-main">Violence against women</span> Violent acts against women and girls

Violence against women (VAW), also known as gender-based violence and sexual and gender-based violence (SGBV), is violent acts primarily committed by men or boys against women or girls. Such violence is often considered a form of hate crime, committed against persons specifically because they are of the female gender, and can take many forms.

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.

Save Indian Family Foundation (SIFF) is a men's rights group in India. It is a registered, non-funded, non-profit, non-governmental organization (NGO) and works with various like-minded NGOs in India.

The Bahamas Crisis Centre is a private, non-profit organization located in Nassau, New Providence, Bahamas that is dedicated to treating victims of physical, sexual, and emotional abuse.

<span class="mw-page-title-main">Men's rights movement in India</span>

The men's rights movement in India is composed of various independent men's rights organisations in India. Proponents of the movement support the introduction of gender-neutral legislation and repeal of laws that are biased against men.

<span class="mw-page-title-main">Domestic violence</span> Abuse of members of the same household

Domestic violence is violence or other abuse that occurs in a domestic setting, such as in a marriage or cohabitation. Domestic violence is often used as a synonym for intimate partner violence, which is committed by one of the people in an intimate relationship against the other person, and can take place in relationships or between former spouses or partners. In its broadest sense, domestic violence also involves violence against children, parents, or the elderly. It can assume multiple forms, including physical, verbal, emotional, economic, religious, reproductive, financial abuse, or sexual abuse, or combinations of these. It can range from subtle, coercive forms to marital rape and other violent physical abuse, such as choking, beating, female genital mutilation, and acid throwing that may result in disfigurement or death, and includes the use of technology to harass, control, monitor, stalk or hack. Domestic murder includes stoning, bride burning, honor killing, and dowry death, which sometimes involves non-cohabitating family members. In 2015, the United Kingdom's Home Office widened the definition of domestic violence to include coercive control.

Criticisms of marriage are arguments against the practical or moral value of the institution of matrimony or particular forms of matrimony. These have included the effects that marriage has on individual liberty, equality between the sexes, the relation between marriage and violence, philosophical questions about how much control can a government have over its population, the amount of control a person has over another, the financial risk when measured against the divorce rate, and questioning of the necessity to have a relationship sanctioned by government or religious authorities.

<span class="mw-page-title-main">Women in Malaysia</span>

Women in Malaysia receive support from the Malaysian government concerning their rights to advance, to make decisions, to health, education and social welfare, and to the removal of legal obstacles. The Malaysian government has ensured these factors through the establishment of Ministry of National Unity and Social Development in 1997. This was followed by the formation of the Women's Affairs Ministry in 2001 to recognise the roles and contributions of Malaysian women.

The following outline is provided as an overview of and topical guide to domestic violence:

<span class="mw-page-title-main">Domestic violence in India</span>

Domestic violence in India includes any form of violence suffered by a person from a biological relative but typically is the violence suffered by a woman by male members of her family or relatives. Although men also suffer domestic violence, the law under IPC 498A specifically protects only women. Specifically only a woman can file a case of domestic violence. According to a National Family and Health Survey in 2005, total lifetime prevalence of domestic violence was 33.5% and 8.5% for sexual violence among women aged 15–49. A 2014 study in The Lancet reports that although the reported sexual violence rate in India is among the lowest in the world, the large population of India means that the violence affects 27.5 million women over their lifetimes. However, an opinion survey among experts carried out by the Thomson Reuters Foundation ranked India as the most dangerous country in the world for women.

Domestic violence in Pakistan is an endemic social and public health problem. According to a study carried out in 2009 by Human Rights Watch, it is estimated that between 10 and 20% of women in Pakistan have suffered some form of abuse. Women have reported attacks ranging from physical to psychological and sexual abuse from intimate partners. A survey carried out by the Thomson Reuters Foundation ranked Pakistan as the sixth most dangerous country for women while India ranked 1st as the most dangerous country for women. Given the very few women's shelters in the country, victims have limited ability to escape from violent situations.

Marital rape is illegal in all 50 US states, though the details of the offence vary by state.

Domestic violence in Lithuania is a pervasive social problem.

Violence against women in Pakistan, particularly intimate partner violence and sexual violence, is a major public health problem and a violation of women's human rights in Pakistan. Women in Pakistan mainly encounter violence by being forced into marriage, through workplace sexual harassment, domestic violence and by honour killings.

<span class="mw-page-title-main">Violence against women in India</span> Public health issue of violent acts against women

Violence against women in India refers to physical or sexual violence committed against a woman, typically by a man.

The dowry system in India refers to the durable goods, cash, and real or movable property that the bride's family gives to the groom, his parents and his relatives as a condition of the marriage. Dowry is called "दहेज" in Hindi and as جہیز in Urdu.

Domestic violence in South Korea is the mental, physical, verbal or sexual abuses or crimes of violence committed towards a victim in a domestic setting of marital relations and cohabitation. Domestic violence describes violence towards a domestic partner, towards children and between siblings. According to the Domestic Violence Survey of South Korea in 2010, elder abuse was estimated to be 10%, physical abuse accounted for 2.2%, emotional abuse 9%, economic abuse 1.2%, and neglect 2.5%. Marital violence has been the most prevalent form of family violence in South Korea. One out of six couples in South Korea had more than one episode of physical violence from their spouse.

Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.

Shalu Nigam is an Indian lawyer, feminist legal scholar, and author. She was the petitioner in the landmark case Shalu Nigam v. Regional Passport Officer, decided on 17 May 2016, which held that passports can be issued without requiring the name of the father.

References

  1. ↑ Chandra, Bipan; Mukherjee, Aditya; Mukherjee, Mridula (2008). India Since Independence. Penguin Books India. p. 374. ISBN   978-0-14-310409-4.
  2. 1 2 3 Datta, Damayanti (4 December 2006). "The new laws of marriage". India Today . Retrieved 29 March 2013.
  3. 1 2 3 "The Protection of Women From Domestic Violence Act, 2005" (PDF). Government of India Legislative Department. Retrieved 18 February 2021.
  4. ↑ says, V. Lakshmi (27 January 2017). "Protection of Women from Domestic Violence Act, 2005". Breakthrough. Retrieved 28 February 2021.
  5. 1 2 3 AGRAWAL, ANUJA (2012). "Law and 'Live-in' Relationships in India". Economic and Political Weekly. 47 (39): 50–56. ISSN   0012-9976. JSTOR   41720191.
  6. 1 2 3 "Archived copy" (PDF). Archived from the original (PDF) on 1 March 2013. Retrieved 19 April 2013.{{cite web}}: CS1 maint: archived copy as title (link)
  7. ↑ "India Code: Section Details". www.indiacode.nic.in. Retrieved 18 February 2021.
  8. 1 2 "Protection of Women from Domestic Violence Act". evaw-global-database.unwomen.org. Retrieved 19 February 2021.
  9. ↑ "THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005" (PDF). Government of India Legislative Department. Retrieved 18 February 2021.
  10. 1 2 Nigam, Shalu (2020). Women and Domestic Violence Law in India: A Quest for Justice. London: Routledge. pp. 1–3. ISBN   978-1-138-36614-5 . Retrieved 30 July 2021.
  11. 1 2 3 "Protection of Women from Domestic Violence Act 2005: Lessons from a decade of implementation" (PDF). Oxfam India. October 2016.
  12. ↑ Jhamb, Bhumika (13 August 2011). "The Missing Link in the Domestic Violence Act" (PDF). Economic & Political Weekly. xlvI.
  13. ↑ Abeyratne, Rehan. "Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality". Journal of Gender, Social Policy & the Law. 21.
  14. ↑ AGRAWAL, ANUJA (2012). "Law and 'Live-in' Relationships in India". Economic and Political. Follow NnofapWeekly. 47 (39): 50–56. ISSN   0012-9976. JSTOR   41720191.
  15. ↑ Solution, Indian Legal (18 March 2020). "Chanmuniya v. Virendra Kumar Singh Khushwaha & Another: Case Comment". Indian Legal Solution. Retrieved 22 April 2021.
  16. ↑ Pandey, Geeta, et al., BBC News, "100 Women 2014: Violence at home is India's 'failing'", 29 October 2014, BBC News
  17. ↑ Hornbeck, Amy; Bethany Johnson; Michelle LaGrotta; & Kellie Sellman; "The Protection of Women from Domestic Violence Act: Solution or Mere Paper Tiger?", Loyola University Chicago International Law Review, Volume 4, Issue 2, Spring/Summer, 2007, pp.273-307, Loyola University, Chicago (also online at: )
  18. ↑ Gupta, Monobina (27 October 2006). "Malevolence for women's law – Men go to PM against female 'terrorist activity'". The Telegraph, Calcutta. Archived from the original on 16 October 2012. Retrieved 28 March 2013.
  19. ↑ Sandhu, Veenu (5 November 2006). "Men running scared now". Hindustan Times. Archived from the original on 10 October 2013. Retrieved 4 October 2013.
  20. ↑ Sorabjee, Soli (5 November 2006). "SUNDAY DEBATE: Is verbal abuse domestic violence? No". The Times of India . Archived from the original on 19 October 2012. Retrieved 4 October 2013.
  21. ↑ Fernandes, Dr Edmond. "How laws meant to protect women are being abused daily in India". The Times of India. ISSN   0971-8257 . Retrieved 5 September 2024.
  22. ↑ "Speech of the Hon'ble President of India, at the National Conference of Lady Lawyers and Lady Teachers, at Yavatmal". Press Information Bureau, Government of India. Retrieved 4 October 2013.
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