The Protection of Women from Domestic Violence Act, 2005 (Summary)

In order to protect the rights of women who are victims of violence of any kind occurring within the family and to provide for matters connected therewith or incidental thereto, the Parliament enacted the Protection of Women from Domestic Violence Act, 2005 which came into effect from 26th October, 2006.

The Act was passed by the Parliament in August, 2005 and assented by the President on September 13, 2005. The Act is primarily meant to provide protection to wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives, the law also extends its protection to women, who are sisters, widows or mothers.

Domestic violence under the Act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. The Act also recognises the woman’s right to secure housing, whether or not she has any title in the household.

This abuse of power may exist in the form of violence between members of household, usually spouses, an assault or other violent act committed by one member of a household against another. It may be in the form of physical, emotional, sexual or psychological abuse against women.

It has been realised since long that domestic violence is widely prevalent but has remained largely, invisible in the public domain and Section 498-A, IPC does not address itself fully to this devastating problem since it is confined only to protect woman against cruelty by her husband or his relatives.

The main features of the Protection of Women from Domestic Violence Act, 2005 are as follows:—

(i) Any conduct of relative of the victim which subjects her to habitual assault, or makes her life miserable, or injures or harms, or forces her to lead an immoral life would constitute domestic violence;

(ii) The Judicial Magistrate of the first class or the Metropolitan Magistrate may take the cognizance of domestic violence and a protection order requiring the relative of the woman to refrain from committing an act of domestic violence, or pay monetary relief which is deemed fit in the circumstances or pass any other direction as he may consider just;

(iii) The Magistrate may even require as an interim and urgent measure from the relative of the woman to execute a bond, with or without sureties, for maintaining domestic peace;

(iv) The violation, by the relative, of the order made by the Magistrate would constitute an offence punishable with imprisonment upto one year, or with fine, or with both;

(v) Appeal can be made to Sessions Court against the order of the concerned magistrate within a period of 30 days from the date of order;

(vi) Protection Officers are appointed under the Act, to help the victim of domestic violence in making application to the Magistrate and in availing of her legal rights;

(vii) Such Protection Officers shall be appointed by the State Governments and they shall possess such qualifications as may be prescribed by the Central Government; and

(viii) Protection Officer shall be deemed to be a public servant within the meaning of Section 21 of IPC, and if he fails or refuses to discharge the duties as directed by the Magistrate, his act shall amount to be an offence punishable with imprisonment upto one year, or with fine, or with both;

(ix) Monetary relief may be given to the aggrieved woman to meet the expenses or loss;

(x) Shelter-home and medical facilities can be provided to the aggrieved woman;

(xi) Every aggrieved woman shall have right to reside in shared household.

In exercise of the powers conferred by Section 37(1) of the Protection of Women from Domestic Violence Act, 2005, the Central Government has made Rules2 for carrying out the provisions of the Act.

Undoubtedly, the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) is a welcome social legislation. Although women have made stupendous progress in almost every sphere of life, one cannot be oblivious to the fact that they continue to be victims of violence of different hues.

Most cases remain unreported for fear of reprisal and ostracism by the family. In fact, gender inequality is one of the primary causes of social exploitation of women which this Act seeks to redress. However, certain quarters feel that the Act is an unwarranted interference of law in domestic relationship and it will harm the bonds within families.

They allege that it is ominous for the law to directly descend upon domestic life and an indirect attempt to westernise our family system. “A life regulated by fear of law is hardly worth living.” Some critics apprehend that the law against domestic violence is highly prone to misuse like section 498-A of the Indian Penal Code since it assumes that a woman is always right and speaks the truth and men are exploitative by nature.

It may be recalled that even the Supreme Court of India has observed in Sushil Kumar Sharma v. Union of India and others} that Section 498-A of I.P.C. being misused as “legal terrorism” and asked the Government to plug the loopholes.

The law against violence is yet another piece of legislation which is more likely to be misused as an handle for women to blackmail men. Those who criticise the Act, assume that it may lead to more broken-marriages and husbands seeking divorce on grounds of harassment which would not be in the interests of the society as a whole.

The national report on domestic violence states that primary users of this law are married woman. However, there are also cases where relief has been granted to widows and daughters. The law upholds the rights of women to reside in a shared house as also the right to counselling and protection. As a protective tool, it seeks to provide relief against physical, economic, mental and sexual violence.

The PWDVA envisages the appointment of protection officers to record incidents of domestic violence and support distressed women even by providing them shelter in homes if necessary, but the State Governments are not able to provide these facilities for want of requisite budgetary support.