Domestic Violence Now!
By Nasiruddin Haider
15 October, 2007
Prevention of Domestic Violence Act is a historic step towards a gender
sensitive law in India. However, the big question remains, how is it
different from other existing laws of the land? Why is this law unique?
Most importantly, what are the benefits an aggrieved person can get
from this law?
Before the passing of this
act, any effort to make a new law for women always faced tough resistance
from patriarchal and religious leaders. Needless to say, the process
of creating this piece of legislation has gone through the same struggle.
However, once enacted, this law provides a historical opportunity to
make a path towards gender just laws for all the women of India irrespective
of their faith.
The Protection of women from
domestic violence act 2005, is unique and different from other existing
laws. Some of the salient features are mentioned below:
(1) It provides a civil remedy
to the aggrieved person/s. This means that the law does not solely rely
on a criminal procedure of guilty and punishment. Niti Saxena of the
Association for the Advocacy and Legal Initiatives (AALI) has more to
add, ‘also as a civil law it is more survivor driven, unlike criminal
law which revolves around state, police and prosecution. Because of
the lack of civil remedy options, forced victims took shelter under
criminal law, which was not adequate in certain circumstances.’
(2) Experience shows that
for the criminal procedure, the aggrieved person has to face immediate
exit from the shared household. Also sometimes, the criminal law becomes
insufficient to deal with the different and complex forms of violence.
Niti also strongly agreed. She said ‘This is the first time under
this law that domestic violence and domestic relations have been defined
viz. recognition of violence faced by women in natal home and within
a marriage like situation. The act also provides for the right to reside
in “shared household” which goes beyond “matrimonial
household” thus covering mothers and sisters too.’
(3) Its uniqueness can be
understood from the provision of the act to provide immediate and emergency
relief to victims. The law also designated a new post named as Protection
Officer. A protection officer has very crucial role to play in providing
relief and justice to the victim. A stop violence order can be issued
in form of protection order with the intention of providing safe and
secure space for the survivor.
(4) It can be used as a deterrent
to the abusive person. The law makes strict provision to stop the abuser
to repeat his/her act. It gives an opportunity to males of the household
to think over their behavior and change the attitude towards the female
members of the family.
(5) As mentioned above, being
a civil law, the intention of it is to provide relief and support to
the survivor and not to penalize the perpetrator. The law does not necessarily
intend to arrest a person for the act of domestic violence. It forces
the respondent i.e. the perpetrator to comply with the orders passed
by magistrate in favor of the victim (see below for the details). However
if the perpetrator continues to commit violence or does not comply with
the order (or aggrieved person continues to feel threatened), such violation
is seen as a criminal offence under the law and the perpetrator can
be arrested. On the non compliance, he can also be given a punishment
of a one year jail sentence or a fine of Rs. 20,000.
In keeping with ground reality
wherein the legal system and processes have been inaccessible to most
of the women, Niti points out, this law has been conceptualized to be
more survivor oriented with simple provisions to ensure immediate relief.
According to the Act, anyone who has a reason to believe that an act
of domestic violence has been, or is being or is likely to have been
committed may give information to the PO. The complaint can be from
the aggrieved person or anyone on behalf of her. It can also be filed
by a doctor who may be treating the victim/s. According to the Act,
an aggrieved person can file a complaint to (a) a protection officer,
who is appointed by the government under the provision of this law (b)
directly to the judge designated for the DV cases (c) directly to the
police and (d) or through the service providers. A victim can choose
either of these options.
But the big question remains,
what are the reliefs an aggrieved person can get? These provisions are
dealt in length under article 18 to 22 of the act. These provisions
(A)Protection orders- Article
18 of the law states, a magistrate can pass a protection order and prohibit
the respondent from-
-committing any act of domestic violence.
-entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, her school or any other place.
-attempting to communicate in any form.
-operating to bank lockers or bank accounts.
- causing violence to the dependents or persons who offer assistance
to the aggrieved person.
( (B)Residence orders- Under
article 19, the magistrate can pass a residence order-
-restraining the respondent from dispossessing or in any other manner
disturbing the possession of the aggrieved person from the shared household.
-restraining the respondent or any of his relatives from entering any
portion the shared household.
-directing the respondent to remove himself from the shared household.
-directing the respondent to secure same level of alternate accommodation
to the aggrieved person as enjoyed by her in the share household or
to pay the rent for the same.
(C)Monetary relief- The magistrate
may direct the respondent to pay monetary relief to meet the expenses
incurred and losses suffered by the aggrieved person. It includes-
-loss of earnings.
-loss caused due to the destruction, damage or removal of any property
from the control of the aggrieved person.
-maintenance for her and her children.
(D) Custody orders- Magistrate
may grant temporary custody of any child or children to the aggrieved
(E) Compensation order- Uniqueness
of this act may be see in this provision. Under this act, magistrate
may pass an order directing the respondent to pay compensations and
damages for the injuries, including mental torture and emotional distress
caused by the act of domestic violence.
The last but not least point
is, an aggrieved woman can also file a complaint against the relatives
of her husband/male partner including the female relatives. These provisions
are much more elaborate in the law itself. Evidently, provisions are
made to safeguard and provide essentials for a violence free life of
the aggrieved person. In addition to the provision of this act, the
aggrieved person can also file a complaint under other criminal laws
that already exist.
Nasiruddin Haider Khan, a Hindi language journalist,
got HPI fellowship for working on the rights of the Muslim Women. He
also writes a blog www.dhaiakhar.blogspot.com in Hindi.
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