Domestic Violence Act, 2005

For many years, women have faced various forms of mistreatment, including domestic violence, sexual violence, and harsh treatment, often because of problems related to dowries, physical assaults, and other issues, which are various forms of violence against women that have been ongoing in the community for a long time. A law known as the Domestic Violence Act of 2005 was created to shield women from domestic abuse.

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This Story also Contains

1. Historical background of the Legislation.
2. Overview of the Domestic Violence Act 2005
3. Objectives of the Domestic Violence Act 2005
4. Kinds of domestic violence
5. Scope of The Domestic Violence Act 2005
6. Landmark Judgments under the Domestic Violence Act 2005
7. Important provisions of the The Domestic Violence Act 2005
8. Duties and functions of the police officer and magistrate
9. Conclusion

Historical background of the Legislation.

This law was not passed in India overnight; rather, it was the result of years of work and protests by many organizations that supported women's rights. This eventually resulted in the creation of the Domestic Violence Act 2005. It required a considerable amount of time to shift the perspectives and opinions of Indian legislators regarding the rights and safety of women. The beginning of creating this kind of law can be traced to the feminist movement in the early 1970s, a time when the concept of women's rights was not a primary focus for Indian legislators. The efforts and demonstrations by feminists often referred to as the Feminist Movement of 1970, resulted in changes to the Indian Penal Code 1860, with section 498A being included following the law's revision in 1983. Article 498A states that "Any individual, whether they are the spouse or a relative of the spouse of a woman, who inflicts harm upon such woman will face imprisonment for a period that could range from one to three years, in addition to a fine." Furthermore, in 1986, a new subsection was incorporated into the Indian Penal Code, specifically under section 304B, which made it illegal to commit torture or cause death as a result of dowry demands. This subsection is structured as follows: "Individuals found guilty of dowry-related murder will be sentenced to a minimum of seven years in prison, with a potential sentence extending up to life imprisonment."

Even following the addition of these clauses, this subsection remained exclusive to married women seeking justice, leaving single women to endure the same harmful cycle of abuse. The code offered no protections for elderly women, single women, or children seeking to defend their rights and ensure their safety. Shortly, the group of lawyers' union established the National Commission for Women (NCW), a Non-Governmental Organization (NGO) created by women's rights activists who pushed for and wrote a bill on Domestic Violence. Previously, the matter of domestic violence was not acknowledged by the Indian Constitution. Problems like domestic violence, safeguarding women against dowry-related deaths, and the protection of women were not included in the Indian Constitution. The "Protection of Women from Domestic Violence Bill 2001," which was introduced in the parliament, drew criticism due to certain parts of the bill that seemed to contradict the primary goals of creating the bill. By 2004, a revised bill was submitted to the human development minister, containing significant recommendations aimed at protecting and ensuring the rights of women.

Overview of the Domestic Violence Act 2005

Among other things, this law guarantees the protection of women's rights as guaranteed by the Indian Constitution under the Protection of Women from Domestic Violence Act, 2005. Domestic violence is defined as any form of abuse, hurt, or injury committed as a crime by a family member, particularly an adult.

According to this legislation, a woman who has experienced domestic abuse is eligible to submit a grievance to the designated protection officer, who is appointed per the rules outlined in The Domestic Violence Act 2005. The subsequent legal actions following the submission of the grievance will be recorded on video. Each woman who has suffered or is impacted by the abuse has the right to live in the jointly-owned residence. The judge has the authority to provide safeguards for the women who have been wronged, and these women are also entitled to financial compensation to cover their costs during the legal process. Domestic violence cases can be taken to the session court for appeal within 30 days following the magistrate's decision in the case. The accused can face a one-year jail sentence a fine of twenty thousand rupees, or both if they violate the protection order issued by the judge.

This legislation addresses situations involving women who have resided together in the same home with someone who has mistreated them, whether they are married or related in a way that could be considered a marriage or adoption. It's not just wives who are protected by this law; it also covers family members such as sisters, mothers, widows, and single mothers who are experiencing abuse and are living with their abuser.

This legislation's broad definition includes threats of domestic abuse as well as actual physical, sexual, verbal, financial, or emotional harm. It also includes protection for women who are harassed because of demands for dowries. Additionally, this law grants women the right to live in their marital home or a communal living arrangement. This right extends to women regardless of their ownership or rights to the property they reside in. A magistrate issues a living arrangement order to secure the right to live in a shared household for the women.

This legislation grants the magistrate the authority to issue restraining orders on behalf of the victim to stop the respondent from engaging in any form of domestic violence. The law also includes provisions for the selection of a protection officer to protect and address the grievances of women concerning domestic violence. Furthermore, this law establishes Non-governmental organizations and service providers aimed at helping the victim to protect their rights and ensure their safety.

Objectives of the Domestic Violence Act 2005

To safeguard women against domestic abuse and other types of violence that jeopardize their honour and dignity, the Domestic Violence Act of 2005 was passed. In addition to married women, this law also applies to single women, minors, and other groups.

The Vienna Agreement of 1994, along with the Beijing Declaration and the Action Plan (1995), have recognised this. The United Nations Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in its overall guidance has suggested that all member states of its organization must take measures to safeguard women from violence of any kind, particularly that happening within the family.

The main objectives of The Domestic Violence Act 2005 have been given below:

1. A primary goal of this legislation is to examine every detail of domestic violence and implement clear actions to penalize the perpetrator.

2. The legislation seeks to shield the victims and ensure their rights are protected against domestic violence.

3. To act delivers prompt and economical justice that is swift and efficient, and ensures proper penalties are imposed on the offenders.

4. This legislation creates groups and non-governmental organizations to inform individuals about the issue of domestic violence and how to address it.

5. It also makes sure that individuals who perpetrate these crimes are held accountable and imposes harsh penalties, which deters future offenders.

6. It protects the right to home protection for women who have been victims of domestic abuse. It also guarantees women the freedom to reside in their married residences, even if they do not own the land.

7. This legislation grants the judge the authority to issue restraining orders for the victim to stop the accused from repeating the offence.

8. It outlines the creation of roles for protection officers and the recognition of community groups as entities that can offer support to the victims regarding their healthcare costs and check-ups, securing legal representation, and finding a secure place to stay, among other things.

Kinds of domestic violence

Summarizing the various forms of domestic violence that women in India encounter is an extremely challenging task, if not outright impossible. This range includes domestic abuse, dowry deaths, suicides, mistreatment, wrongly confining women, falsely holding a woman hostage, unlawfully confining women, polygamy, and many others. However, certain types of domestic violence are acknowledged by the Indian judiciary and have been categorized as follows:

1. Dowry death

The most serious form of domestic violence that occurs in India is dowry-related murder, in which a large number of women are slain every year in their married homes by their husbands and relatives as a result of their extortionate, egotistical demands for money. Even though dowries are illegal in India, stories of dowry-related homicides persist daily, and it is acknowledged as one of the worst forms of societal misconduct in the nation. Murder connected to dowries is covered by Indian Penal Code 1860 Section 304B.

Case law: Satbir Singh v. State of Haryana(2021)

In this instance, Satbir Singh, who was the one appealing, and his late wife, who was the one who passed away, got married in 1994. Shortly after their marriage, the father of the deceased wife learned that his daughter's health was deteriorating and she was taken to the hospital. She died a few hours after being admitted to the hospital.

In the lawsuit, the deceased's relatives made it explicitly clear that Satbir Singh, the defendant, had been mistreating and harassing them because she had brought a smaller dowry into the marriage. However, the defendant, Satbir Singh, asserted that the dead had killed herself by lighting herself on fire.

On the designated date, 11/12/1997, the appellant was found guilty under sections 304B and 306 of the Indian Penal Code 1860 after all testimony had been carefully reviewed. Consequently, the appellant faced a severe penalty of seven years of hard imprisonment, with an additional five years for his offence under sections 304B and 306, respectively.

2. Abetment to commit suicide

India has seen many cases where women are compelled to end their own lives because of domestic abuse. In these situations, the abuser is deemed guilty of causing the woman's death. The concept of abetment is outlined in section 107 of the Indian Penal Code 1860. It states that an abetment is considered when any one of the three forms is linked to it:

• Instigation

• By conspiracy

• By intentional aid

Case law: Nand Kishore Vishwanath Newara V. State of Maharashtra

In the case, it was determined that despite acknowledging the dying statement indicating that the husband had scolded, argued, and physically assaulted his wife, this behaviour as a whole would not justify the appellee's guilt for the crime for which section 306 of the Indian Penal Code 1860 was applicable.

3. Cruelty

Chapter 498A of the Indian Penal Code 1860 addresses the issue of violence against women by husbands or family members. Violence within the home can take various forms, including physical or mental abuse, among others.

Nonetheless, Section 498A of the Indian Penal Code delineates the various forms of cruelty that are deemed as cruel acts. These include:

• Behaviour driven by emotions leads a woman to take her own life.

• Behaviour must be deliberate and have the potential to harm a woman's life and well-being.

• Abusing women and pressuring them for the sake of gaining property.

• Abusing or torturing women because their family refused to provide certain property as a dowry.

Case law: Gurbachan Singh v. Satpal singh & Ors.

In this instance, Rabinder Kaur, the offspring of Gurbachan Singh, wed Satpal Singh. Following seven years, she took her own life. The primary causes of her demise were the severe abuse, violence, mistreatment, and intimidation inflicted upon her by her spouse, Satpal Singh. The defendant in this case was found guilty by the Supreme Court using Section 306 of the Indian Penal Code 1860. The defendant was punished under Section 306 of the Indian Penal Code after the panel of the presiding judge found that she was liable for contributing to her death.

4. Hurt and Grievous Hurt

A physical attack on a woman results in physical domestic abuse. An individual is considered to be the cause of a woman's injury if they cause her physical harm, disease, or impairment. While "serious injury" suggests more significant harm, "injury" only alludes to harm. Sections 319, 321, 323, and 324 of the Indian Penal Code of 1860 describe the legislation about these offences, whereas Sections 320, 322, 325, and 326 deal with the more serious situations. If the act of causing injury or serious injury is intended to harm someone, it is considered a crime under the aforementioned sections of the Indian Penal Code of 1860.

5. Wrongful restraint and wrongful confinement

When a woman is forcibly removed from her house or imprisoned against her will, it is considered wrongful restraint and wrongful detention. Wrongful confinement and restraint are crimes covered by Sections 339 and 340 of the Indian Penal Code. When someone wrongfully confines a woman, it constitutes domestic violence and is subject to punishment under these sections. The duration of the woman's confinement is irrelevant in cases of wrongful restraint and confinement. Women are entitled to freedom of movement and the right to choose their path. If her spouse or family members restrict her freedom to move, it constitutes domestic violence.

Scope of The Domestic Violence Act 2005

.In India especially, the Domestic Violence Act 2005 covers a wide range of important topics and must be properly implemented to safeguard the rights of women who are victims of domestic abuse. India's domestic violence laws are important, as the court noted in Bhartiben Bipinbhai Tamboli v. State of Gujarat. He stated in the verdict, "As a mother, daughter, wife, sister, widow, etc., individuals face domestic violence daily. However, domestic violence cases are rarely discussed or documented due to societal norms and the women's attitudes."

Before the Domestic Violence Act was created in India, women experiencing domestic violence had few options for seeking justice. They had to either seek help in the civil court or the criminal court. Additionally, there was no specific law in place to safeguard the rights of women dealing with domestic violence. Due to these factors, women enduring daily domestic abuse were forced to keep quiet because they lacked knowledge of their rights and were uncertain about which laws to seek help from. Following the enactment of the Protection of Women from Domestic Violence Act 2005 by the Indian Parliament, the law created a broad range of rights for women, with the primary goal of safeguarding women's rights and protecting them from societal wrongs such as domestic violence.

Landmark Judgments under the Domestic Violence Act 2005

Lalita Toppo v. The State of Jharkhand (2018)

• Despite not being the respondent's lawfully wedded spouse, Lalita Toppo requested assistance from the Supreme Court in the Lalita Toppo v. The State of Jharkhand (2018) case by the Domestic Violence Act of 2005.
• In addition, the appellant and respondent in this case were living together and had a kid after their divorce. Lalita Toppo then requested financial support from the respondent and initiated proceedings in the Gumla Family Court. The court subsequently decreed that the respondent should provide Rs 2000 monthly for the wife's support and Rs 1000 for the child's expenses.
• A panel of three Supreme Court justices, led by Chief Justice Ranjan Gogoi, Justices K.M. Joseph and U.U. Lalit made a ruling that expanded the interpretation of Section 125 of the Code of Criminal Procedure, 1973, and required a partner living with their significant other to provide financial support. They asserted that, regardless of marriage, the plaintiff in the action is entitled to spousal financial support under the Domestic Violence Act of 2005.

Ajay Kumar v. Lata (2019)

• In this case, Lata, the person who initiated the action, was married to the widowed sister of the respondent's brother. They belonged to a Joint Hindu family. Lata filed a lawsuit at the Supreme Court, claiming her brother-in-law ought to back her. The Domestic Violence Act 2005, specifically Section 12(1), allows individuals to seek financial assistance from a magistrate. Additionally, the complaint mentioned that after her husband passed away, she was not permitted to live in the family home, and her children were forced to leave as well.
• The Court of Appeals determined that, as per the rules established by the Domestic Violence Act 2005, a brother-in-law is also eligible to offer financial support to the widow.

Important provisions of the The Domestic Violence Act 2005

The important provisions of The Domestic Violence Act 2005 are discussed below:

Appointment of protection officers

According to the Domestic Violence Act 2005, protection officers are designated by the state governments with official seals. The number of these officers differs across states, with larger districts having more officers. A key requirement is that these officers must be women. They carry significant duties and authority to shield women from domestic violence and protect their rights.

Power of functions of the protection officers

The officials designated by the Domestic Violence Act 2005 are granted significant authority and responsibilities. This is elaborated upon in the following sections:

1. The safeguarding officers support the magistrate responsible for the case, aiding her in fulfilling her responsibilities.

2. They document instances of domestic abuse for the magistrate and send the original documents to the police department responsible for that region.

3. Additionally, the safeguarding officers provide support services to individuals affected by domestic violence.

4. The safeguarding officials also ensure that individuals experiencing domestic abuse receive the opportunity to exercise their right to complimentary legal assistance, as guaranteed by the Legal Services Authority Act 1987.

5. Additionally, it falls under the duty of the safeguarding officials to ensure that individuals experiencing domestic abuse undergo thorough medical evaluations and document all other physical injuries they have suffered

Powers and functions of the service providers

The authority and duties of the service provider are outlined in section 10 of The Domestic Violence Act 2005.

1. Service providers are responsible for documenting any occurrences in their designated regions concerning domestic violence and passing this information on to the protection officer or the magistrates.

2. The service provider must conduct a medical examination of the victim, compile a report, and submit it to both the protection officer and the magistrate.

3. Offering a haven or a place to live that is protected and stable for someone who has experienced domestic abuse is a key obligation and duty of the service provider.

Duties and functions of the police officer and magistrate

The responsibilities and roles of the police officer and magistrate are outlined in section 5 of The Domestic Violence Act 2005. The following are their functions:

1. The responsibility falls upon the police officer and magistrate to delve deeper into the issue, considering all the details and situations, and offer a solution to the victim.

2. The victim must be informed about her entitlements and the methods to claim them by the police officer and the magistrate.

3. The law enforcement officer and the judge also need to explain to the victim what actions should be taken in this scenario and also the entitlement to free legal assistance provided by the Legal Services Authorities Act 1987.

Conclusion

The Domestic Violence Act of 2005 is an integral part of Indian society's fabric and the legal system. Its goals are to stop the atrocities of domestic abuse and to protect and uphold women's rights in the community. Because it addresses the issue of women being forced out of their homes owing to circumstances like abuse, dowry-related deaths, domestic violence, etc., this legislation is extremely important. It provides assistance to women who have long suffered from these injustices. As a result, this act is essential to maintaining the dignity and value of women in India.