Legal Remedies Available Against Domestic Violence in India: A Comprehensive Guide
Domestic violence is a pervasive issue in India, affecting individuals across various social, economic, and cultural backgrounds. The legal system in India offers several remedies to protect victims and ensure that perpetrators are held accountable. The key legislation addressing domestic violence is the Protection of Women from Domestic Violence Act, 2005 (PWDVA). This comprehensive guide will discuss the legal remedies available under this Act, along with other relevant provisions and procedures.
1. Understanding Domestic Violence
Definition Under PWDVA
Domestic violence is defined broadly under the Protection of Women from Domestic Violence Act, 2005. It includes:
- Physical Abuse: Any act that causes bodily pain, harm, or danger to life, limb, or health, or impairing the health or development of the victim.
- Sexual Abuse: Any conduct of a sexual nature that humiliates, degrades, or otherwise violates the dignity of a woman.
- Verbal and Emotional Abuse: Insults, ridicule, humiliation, name-calling, and other forms of verbal or emotional mistreatment.
- Economic Abuse: Deprivation of financial resources, disposal of household effects, or prohibiting the victim from engaging in employment or business.
Who Can Seek Relief?
The Act is designed to protect women from violence by a husband, male partner, or any male or female relative of the husband or partner. It applies to married women, women in live-in relationships, mothers, sisters, and daughters.
2. Filing a Complaint
Where to File
- Protection Officer: The PWDVA mandates the appointment of Protection Officers in every district. A victim can approach the Protection Officer to file a complaint and seek relief.
- Police Station: Victims can file a complaint at the nearest police station. The police are required to assist the victim and forward the complaint to the Protection Officer and Magistrate.
- Magistrate: A direct application can be made to the Magistrate’s court under Section 12 of the PWDVA. The Magistrate can issue various orders to ensure the safety and protection of the victim.
Role of NGOs and Service Providers
Non-Governmental Organizations (NGOs) and service providers recognized under the PWDVA play a crucial role in assisting victims. They help in filing complaints, providing shelter, legal aid, and counseling services.
3. Protection Orders
Purpose and Scope
A protection order is a legal order issued by the Magistrate to prevent further violence or harassment. Under Section 18 of the PWDVA, the Magistrate can grant a protection order prohibiting the respondent from:
- Committing any act of domestic violence.
- Entering the place of employment or residence of the victim.
- Attempting to communicate with the victim in any form.
- Alienating any assets used by the victim or her children.
Duration and Enforcement
Protection orders remain in effect until they are revoked or modified by the court. Violation of a protection order is a cognizable and non-bailable offense, punishable with imprisonment and/or fine.
4. Residence Orders
Right to Reside in Shared Household
Under Section 19 of the PWDVA, a woman has the right to reside in the shared household, irrespective of her legal right to the property. The court can pass residence orders to:
- Prohibit the respondent from dispossessing or evicting the victim from the shared household.
- Restrain the respondent from entering any portion of the household where the victim resides.
- Direct the respondent to secure alternate accommodation for the victim and her children.
Impact on Property Rights
The residence order does not affect the property rights of the parties but ensures the victim’s right to live in a safe and secure environment.
5. Monetary Relief
Types of Monetary Relief
Section 20 of the PWDVA provides for monetary relief to meet the expenses incurred and losses suffered by the victim. The court can order the respondent to pay for:
- Loss of earnings.
- Medical expenses.
- Loss or destruction of property.
- Maintenance for the victim and her children.
Determination and Payment
The amount of monetary relief is determined based on the standard of living to which the victim is accustomed. The court may direct a lump sum payment or monthly payments as deemed appropriate.
6. Custody Orders
Temporary Custody of Children
Under Section 21 of the PWDVA, the Magistrate can grant temporary custody of children to the victim or any person making an application on her behalf. The order ensures that the victim has access to and control over her children, preventing the respondent from taking them away or interfering with their custody.
Visitation Rights
The court may also grant visitation rights to the respondent, provided such visits do not pose a risk to the victim or the children. The court can impose conditions on visitation to ensure the safety and well-being of the children.
7. Compensation Orders
Compensation for Injuries
Section 22 of the PWDVA allows the court to order compensation or damages for injuries, including mental torture and emotional distress caused by the respondent’s acts of domestic violence. This is in addition to any other relief granted under the Act.
Assessment of Compensation
The amount of compensation is determined based on the severity of the harm suffered, the impact on the victim’s life, and other relevant factors. The court has wide discretion in assessing and awarding compensation.
8. Counseling and Rehabilitation
Court-Ordered Counseling
Under Section 14 of the PWDVA, the court may direct both the victim and the respondent to undergo counseling either individually or together. Counseling aims to address the underlying issues leading to domestic violence and explore the possibilities of reconciliation.
Rehabilitation Services
The Act also emphasizes the need for rehabilitation services for victims, including shelter homes, legal aid, and medical facilities. Service providers and NGOs play a significant role in offering these services to victims.
9. Legal Representation
Right to Legal Aid
The PWDVA provides victims with the right to free legal aid under the Legal Services Authorities Act, 1987. Victims can seek the assistance of a lawyer at the expense of the state to represent them in court proceedings.
Role of Advocates
Advocates play a crucial role in drafting petitions, representing the victim in court, and ensuring that all legal remedies are fully utilized. They also assist in negotiating settlements, if appropriate, and in ensuring that the victim’s rights are protected throughout the legal process.
10. Criminal Proceedings Under IPC
Relevant IPC Sections
In addition to remedies under the PWDVA, victims of domestic violence can seek redress under various sections of the Indian Penal Code (IPC). These include:
- Section 498A IPC: Cruelty by husband or relatives, which is a cognizable and non-bailable offense.
- Section 304B IPC: Dowry death, applicable when a woman dies under unnatural circumstances within seven years of marriage due to cruelty related to dowry.
- Section 306 IPC: Abetment of suicide, if the victim is driven to commit suicide due to domestic violence.
- Section 323 IPC: Causing hurt, if physical violence is inflicted on the victim.
Filing an FIR
Victims can file a First Information Report (FIR) at the nearest police station under these sections. The police are obligated to investigate and take appropriate action, including arresting the accused if necessary.
11. Role of the Judiciary
Fast-Track Courts
To expedite cases of domestic violence, many states have established fast-track courts. These courts are designed to handle cases of domestic violence and related issues with urgency, reducing the time taken to deliver justice.
Appellate Remedies
If the victim is dissatisfied with the orders passed by the Magistrate, she has the right to appeal to the Sessions Court. The appellate court can modify, uphold, or overturn the original order based on the evidence and arguments presented.
12. Role of Human Rights Commissions
National and State Commissions
Victims of domestic violence can approach the National Human Rights Commission (NHRC) or State Human Rights Commissions for intervention. These commissions can investigate complaints, recommend action, and provide additional support to victims.
Complaints and Investigations
The commissions have the authority to investigate complaints of human rights violations, including domestic violence. They can summon witnesses, demand documents, and direct authorities to take specific actions to protect the rights of victims.
13. Protection of Children
Child Welfare Committees
Children exposed to domestic violence are at significant risk of emotional and psychological harm. The PWDVA emphasizes the protection of children, and Child Welfare Committees (CWCs) are empowered to intervene in cases where children are affected.
Interim Custody and Care
CWCs can recommend interim custody and care arrangements for children in cases of domestic violence, ensuring that they are placed in a safe and nurturing environment.
14. International Conventions and Domestic Violence
CEDAW
India is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This international convention mandates that member states, including India, take all appropriate measures to prevent domestic violence and protect victims.
Impact on Indian Law
The principles enshrined in international conventions like CEDAW have influenced the development of domestic violence laws in India, ensuring that they align with global standards for the protection of women’s rights.
Conclusion
Domestic violence is a serious violation of human rights, and the
legal remedies available in India are designed to offer comprehensive protection and support to victims. The Protection of Women from Domestic Violence Act, 2005, along with other relevant laws, provides a robust framework for addressing domestic violence. Victims have the right to seek protection orders, residence orders, monetary relief, and compensation, among other remedies. Additionally, the legal system offers avenues for criminal prosecution, counseling, and rehabilitation, ensuring that victims receive the support they need to rebuild their lives. It is crucial for victims to be aware of their rights and to seek legal assistance promptly to ensure that justice is served.
Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304