Introduction
The Protection of Women from Domestic Violence Act, 2005 (PWDV Act) is a landmark legislation in India that aims to provide more effective protection to women who are victims of violence within the family. This comprehensive and exhaustive guide will walk you through every aspect of the Act, including all definitions, rights granted to women, and the legal procedures involved in seeking protection and relief.
Key Objectives of the PWDV Act
- To protect women from domestic violence
- To prevent the occurrence of domestic violence in society
- To provide support to victims of domestic violence
- To ensure the rights of women to secure housing
- To provide for emergency services and immediate relief to victims
- To establish a system of easy access to justice for victims of domestic violence
Important Definitions Under the Act
Section 2: Definitions
This section lays out all the key terms used throughout the Act. Understanding these definitions is crucial for interpreting and applying the law correctly.
Aggrieved Person
(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
This definition is inclusive and covers not only married women but also women in live-in relationships, as well as other female family members such as mothers, sisters, widows, or daughters.
Child
(b) “child” means any person below the age of eighteen years and includes any adopted, step or foster child;
The Act recognizes various forms of parent-child relationships, ensuring protection for all children in a domestic setting.
Compensation Order
(c) “compensation order” means an order granted in terms of section 22;
This refers to orders for monetary compensation for injuries, including mental torture and emotional distress.
Custody Order
(d) “custody order” means an order granted in terms of section 21;
This pertains to orders regarding the temporary custody of children.
Domestic Incident Report
(e) “domestic incident report” means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;
This report is a crucial document in the legal process, typically filed by a Protection Officer.
Domestic Relationship
(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
This broad definition covers various types of familial and intimate relationships, including live-in partnerships.
Domestic Violence
(g) “domestic violence” has the same meaning as assigned to it in section 3;
The Act provides a detailed definition of domestic violence in Section 3, which we will explore later.
Dowry
(h) “dowry” shall have the same meaning as assigned to it in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961);
This definition links the PWDV Act to existing legislation against dowry, reinforcing the legal framework against this practice.
Magistrate
(i) “Magistrate” means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973(2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;
This definition clarifies which judicial authorities have jurisdiction in cases under this Act.
Medical Facility
(j) “medical facility” means such facility as may be notified by the State Government to be a medical facility for the purposes of this Act;
This allows state governments to designate specific medical facilities for the treatment and examination of domestic violence victims.
Monetary Relief
(k) “monetary relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;
This provides for financial support to victims to cover various expenses related to the domestic violence they have suffered.
Notification
(l) “notification” means a notification published in the Official Gazette and the expression “notified” shall be construed accordingly;
This defines the official method of publishing information related to the Act.
Prescribed
(m) “prescribed” means prescribed by rules made under this Act;
This refers to any regulations or rules made under the authority of this Act.
Protection Officer
(n) “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8;
Protection Officers play a crucial role in implementing the Act and assisting victims.
Protection Order
(o) “protection order” means an order made in terms of section 18;
These are orders issued by the Magistrate to prevent further acts of domestic violence.
Residence Order
(p) “residence order” means an order granted in terms of sub-section (1) of section 19;
These orders pertain to the right of the aggrieved person to reside in the shared household.
Respondent
(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;
While the respondent is typically a male partner, the Act allows complaints against female relatives of the husband or male partner, addressing the reality of domestic violence perpetrated by in-laws.
Service Provider
(r) “service provider” means an entity registered under sub-section (1) of section 10;
These are organizations or individuals registered to provide support services to victims of domestic violence.
Shared Household
(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;
This broad definition is crucial as it protects a woman’s right to reside in the shared household, regardless of ownership.
Shelter Home
(t) “shelter home” means any shelter home as may be notified by the State Government to be as shelter home for the purposes of this Act.
These are safe houses designated by the state government for victims of domestic violence.
Understanding Domestic Violence Under the Act
Section 3: Definition of Domestic Violence
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—
(a) 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
(b) harasses, harms, injures or endangers the aggrieved person with a view 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
(c) 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
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I
Explanation I.—For the purposes of this section,—
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, house hold necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II
Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.
This comprehensive definition ensures that various forms of abuse, beyond just physical violence, are recognized and addressed under the law. It includes physical, sexual, verbal, emotional, and economic abuse, providing a holistic approach to protecting women from all forms of domestic violence.
Section 5: Duties of Police Officers, Service Providers and Magistrate
A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person—
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:
Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.
This section outlines the responsibilities of various authorities when they encounter cases of domestic violence. It ensures that victims are informed of their rights and the available support services.
Section 6: Duties of Shelter Homes
If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.
This section mandates shelter homes to provide accommodation to victims of domestic violence, ensuring their immediate safety.
Section 7: Duties of Medical Facilities
If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility.
This provision ensures that victims of domestic violence receive necessary medical attention without delay.
Section 10: Service Providers
(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act.
(2) A service provider registered under sub-section (1) shall have the power to—
(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;
(b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place;
(c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.
(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.
This section details the role and responsibilities of service providers, who play a crucial part in supporting victims of domestic violence. It also provides legal protection for service providers acting in good faith.
Section 11: Duties of Government
The Central Government and every State Government, shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity through public media including the television, radio and the print media at regular intervals;
(b) the Central Government and State Government officers including the police officers and the members of the judicial services are given periodic sensitization and awareness training on the issues addressed by this Act;
(c) effective co-ordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and periodical review of the same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to women under this Act including the courts are prepared and put in place.
This section outlines the government’s responsibilities in implementing the Act, including raising public awareness, training officials, and ensuring coordination between various departments.
Rights and Protections Offered by the Act
Right to Reside in a Shared Household
Section 17: Right to Reside in a Shared Household
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
This section ensures that a woman cannot be evicted from her home, providing crucial economic security and shelter. It’s a significant provision that protects women from being rendered homeless due to domestic violence.
Protection Orders
Section 18: Protection Orders
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
Protection orders are powerful tools that can prohibit the abuser from committing further acts of violence, contacting the victim, or entering certain places. They provide immediate relief and safety to the aggrieved person.
Residence Orders
Section 19: Residence Orders
(1) While disposing of an application under sub-section (1) of section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
Residence orders provide specific protections related to the shared household, ensuring the woman’s right to safe accommodation. These orders can prevent the respondent from dispossessing the aggrieved person from the shared household, direct the respondent to remove himself from the shared household, and even require the respondent to provide alternate accommodation.
Monetary Relief
Section 20: Monetary Reliefs
(1) While disposing of an application under sub-section (1) of section 12,the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
This section ensures that victims can claim compensation for various expenses and losses incurred due to domestic violence. It covers loss of earnings, medical expenses, property damage, and maintenance for the aggrieved person and her children. The provision for direct payment from the respondent’s employer or debtor is particularly significant in ensuring compliance.
Custody Orders
Section 21: Custody Orders
Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
This provision allows for temporary custody arrangements that prioritize the safety and well-being of children involved. It gives the Magistrate the power to restrict visitation rights if they are deemed harmful to the child’s interests.
Compensation Orders
Section 22: Compensation Orders
In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.
This section recognizes the need for compensation for both physical and emotional injuries caused by domestic violence. It’s an important acknowledgment of the long-term impact of domestic violence on a person’s mental health and well-being.
Legal Procedures and Mechanisms
Role of Protection Officers
Section 8: Appointment of Protection Officers
(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act.
(2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may be prescribed.
Protection Officers play a crucial role in assisting victims, filing Domestic Incident Reports, and ensuring the implementation of court orders. The preference for female officers acknowledges the sensitivity required in dealing with cases of domestic violence.
Section 9: Duties and Functions of Protection Officers
(1) It shall be the duty of the Protection Officer—
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;
(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.
(2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
This section delineates the comprehensive responsibilities of Protection Officers, highlighting their crucial role in implementing the Act and supporting victims of domestic violence.
Application to Magistrate
Section 12: Application to Magistrate
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
This section outlines the process for seeking relief under the Act, emphasizing the importance of the Domestic Incident Report in the Magistrate’s decision-making process. It also sets timelines for hearings and disposal of applications, ensuring speedy justice.
Service of Notice
Section 13: Service of Notice
(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.
This ensures prompt notification of hearings to all relevant parties, with the Protection Officer playing a key role in serving notices.
Counselling
Section 14: Counselling
(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed.
(2) Where the Magistrate has issued any direction under sub-section (1), he shall fix the next date of hearing of the case within a period not exceeding two months.
Counselling can be an important part of the process, potentially helping to address underlying issues and promote reconciliation where appropriate. The Act recognizes the value of professional intervention in domestic disputes.
Assistance of Welfare Expert
Section 15: Assistance of Welfare Expert
In any proceeding under this Act, the Magistrate may secure the services of such person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.
This provision allows for the involvement of welfare experts, particularly women, to assist the Magistrate in understanding and addressing the complex dynamics of domestic violence cases.
Proceedings to be Held in Camera
Section 16: Proceedings to be Held in Camera
If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera.
This provision ensures privacy and confidentiality in domestic violence cases, which can be crucial for protecting the dignity and safety of the aggrieved person.
Power to Grant Interim and Ex Parte Orders
Section 23: Power to Grant Interim and Ex Parte Orders
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
This section empowers the Magistrate to issue immediate orders for the protection of the aggrieved person, even without hearing the respondent, if the situation demands such urgent action.
Court to Give Copies of Order Free of Cost
Section 24: Court to Give Copies of Order Free of Cost
The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police officer in-charge of the police station in the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court and if any service provider has registered a domestic incident report, to that service provider.
This provision ensures that all relevant parties, including law enforcement and service providers, are informed of the court’s orders, facilitating their implementation.
Duration and Alteration of Orders
Section 25: Duration and Alteration of Orders
(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
This section allows for the modification of protection orders based on changing circumstances, ensuring that the legal protections remain relevant and effective over time.
Section 26: Relief in Other Suits and Legal Proceedings
(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
This section allows for the integration of relief measures under this Act with other legal proceedings, providing flexibility in seeking protection and compensation.
Section 27: Jurisdiction
(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.
This section defines the jurisdiction of courts in matters related to this Act, ensuring accessibility for the aggrieved person and enforceability of orders throughout India.
Section 28: Procedure
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
This section outlines the procedural aspects of the Act, aligning it with existing criminal procedure while allowing for flexibility in certain cases.
Appeal
Section 29: Appeal
There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
This section provides a mechanism for appealing the Magistrate’s decisions, ensuring a system of checks and balances within the legal process.
Section 31: Penalty for Breach of Protection Order by Respondent
(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
This section establishes penalties for violating protection orders, emphasizing the seriousness of compliance with court orders under this Act.
Section 32: Cognizance and Proof
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.
This section makes the breach of protection orders a serious offense, allowing for immediate action by law enforcement and giving significant weight to the testimony of the aggrieved person.
Section 33: Penalty for Not Discharging Duty by Protection Officer
If any Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
This provision ensures accountability of Protection Officers, underlining the importance of their role in implementing the Act.
Section 34: Cognizance of Offence Committed by Protection Officer
No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it in this behalf.
This section provides a safeguard against frivolous complaints against Protection Officers, ensuring they can perform their duties without fear of undue legal action.
Additional Provisions and Safeguards
Protection of Actions Taken in Good Faith
Section 35: Protection of Actions Taken in Good Faith
No suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.
This provision protects Protection Officers from legal repercussions when acting in good faith, enabling them to perform their duties without fear of undue litigation.
Act Not in Derogation of Any Other Law
Section 36: Act Not in Derogation of Any Other Law
The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.
This section clarifies that the PWDV Act complements existing laws rather than replacing them, ensuring comprehensive legal protection for victims of domestic violence.
Implementation and Practical Aspects
Role of Police Officers
While not explicitly defined in the Act, police officers play a crucial role in its implementation. They are often the first point of contact for victims of domestic violence and are responsible for:
- Registering First Information Reports (FIRs) in cases of domestic violence
- Assisting Protection Officers in implementing court orders
- Providing immediate assistance and protection to victims
- Informing victims about their rights under the Act
Role of Service Providers
Service providers, as defined in Section 10 of the Act, play a vital role in supporting victims of domestic violence. Their responsibilities include:
- Providing shelter, medical assistance, and legal aid to victims
- Recording domestic incident reports
- Assisting victims in filing applications before the Magistrate
- Providing counselling services
Challenges in Implementation
Despite the comprehensive nature of the PWDV Act, several challenges have been observed in its implementation:
- Lack of awareness about the Act among the general public and even some law enforcement officials
- Insufficient number of Protection Officers in many districts
- Delays in court proceedings despite the Act’s emphasis on speedy justice
- Cultural and societal pressures that discourage women from seeking legal recourse
- Limited financial resources for implementing various provisions of the Act
Rights of Children Under the Act
While the Act primarily focuses on protecting women, it also includes several provisions for the protection and welfare of children affected by domestic violence:
- Right to custody orders (Section 21)
- Protection from violence as part of the definition of domestic violence (Section 3)
- Consideration in residence orders to ensure their safety and well-being
- Provision for maintenance and monetary relief that includes children’s expenses
Role of Medical Facilities
Medical facilities play a crucial role in addressing domestic violence cases:
- Providing immediate medical attention to victims
- Documenting injuries for legal purposes
- Offering counselling and referral services
- Collaborating with Protection Officers and service providers
Comparison with Other Laws
The PWDV Act complements and extends protections provided by other laws:
- Section 498A of Indian Penal Code (Cruelty by husband or his relatives)
- The Dowry Prohibition Act, 1961
- The Hindu Marriage Act, 1955 (for provisions related to divorce on grounds of cruelty)
- The Muslim Women (Protection of Rights on Divorce) Act, 1986
While these laws mainly focus on criminal aspects or specific communities, the PWDV Act provides civil remedies and is applicable to all women regardless of religion.
International Context
The PWDV Act aligns with international commitments and conventions, including:
- The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- The Beijing Declaration and Platform for Action
- The United Nations Declaration on the Elimination of Violence against Women
These international instruments have influenced the comprehensive approach of the PWDV Act in addressing various forms of domestic violence.
The Role of Civil Society and NGOs
Civil society organizations and NGOs play a crucial role in supporting the implementation of the PWDV Act:
- Awareness Campaigns: Many NGOs conduct grassroots-level awareness programs about the Act and women’s rights.
- Support Services: Organizations often provide counseling, legal aid, and shelter to victims of domestic violence, supplementing government efforts.
- Training and Capacity Building: NGOs contribute to training Protection Officers, police, and judiciary on sensitive handling of domestic violence cases.
- Advocacy: Civil society plays a crucial role in advocating for better implementation of the Act and necessary amendments.
- Research and Documentation: Many organizations conduct studies on the Act’s implementation, providing valuable data for policy improvements.
The collaboration between government agencies and civil society organizations is crucial for the effective implementation of the PWDV Act and the broader goal of reducing domestic violence in India.
The Impact of the PWDV Act: A Decade and a Half Later
Since its enactment in 2005, the PWDV Act has significantly impacted Indian society:
- Increased Awareness: The Act has brought the issue of domestic violence into the public discourse, challenging the notion that it’s a private family matter.
- Expanded Definition of Violence: By recognizing emotional, verbal, and economic abuse, the Act has broadened society’s understanding of domestic violence beyond physical abuse.
- Civil Remedy: The Act’s focus on civil remedies has provided victims with alternatives to criminal proceedings, often leading to quicker and more practical solutions.
- Residency Rights: The provision securing women’s right to reside in the shared household has been particularly impactful, providing economic security to victims.
Criticisms and Areas for Improvement
Despite its groundbreaking nature, the PWDV Act has faced criticisms:
- Gender-Specific Nature: The Act’s focus on women as victims has been criticized for not addressing domestic violence against men or in same-sex relationships.
- Implementation Gaps: Inconsistent implementation across states has led to varying levels of effectiveness.
- Delays in Legal Proceedings: Despite provisions for speedy trials, many cases face significant delays in the overburdened Indian legal system.
- Limited Awareness: Many women, especially in rural areas, remain unaware of their rights under this Act.
The Way Forward: Strengthening the PWDV Act
To enhance the effectiveness of the PWDV Act, several steps could be considered:
- Increased Funding: Allocating more resources for the appointment of Protection Officers, setting up of shelter homes, and providing support services.
- Technology Integration: Leveraging technology for case management, monitoring of protection orders, and providing remote support to victims.
- Community Engagement: Involving community leaders, NGOs, and local bodies in raising awareness and providing support to victims.
- Regular Review and Amendments: Periodically reviewing the Act’s implementation and making necessary amendments to address emerging challenges and societal changes.
- Comprehensive Data Collection: Establishing a robust system for collecting and analyzing data on domestic violence cases to inform policy decisions and measure the Act’s impact.
Conclusion
The Protection of Women from Domestic Violence Act, 2005 represents a significant step forward in addressing the issue of domestic violence in India. Its comprehensive approach, covering various forms of abuse and providing multiple avenues for relief, makes it a powerful tool for protecting women’s rights within the domestic sphere.
However, the effectiveness of the Act largely depends on its implementation. Continued efforts are needed to raise awareness, train law enforcement and judicial officers, and provide adequate resources for its execution. As society evolves, there may be a need to revisit and potentially amend the Act to address new challenges and forms of domestic violence.
Ultimately, the PWDV Act is not just a legal document, but a reflection of society’s commitment to ensuring the safety, dignity, and well-being of women in their homes and families. Its success will be measured not just in legal terms, but in the positive impact it has on the lives of women across India.
Frequently Asked Questions about the Protection of Women from Domestic Violence Act, 2005
1. What is the Protection of Women from Domestic Violence Act, 2005?
The Protection of Women from Domestic Violence Act, 2005 (PWDV Act) is a comprehensive legislation in India that aims to protect women from domestic violence. It provides civil remedies and defines various forms of domestic violence, including physical, sexual, verbal, emotional, and economic abuse.
2. Who can seek protection under this Act?
Any woman who is or has been in a domestic relationship with the respondent can seek protection under this Act. This includes wives, live-in partners, sisters, mothers, and other female family members.
3. What types of violence are covered under the Act?
The Act covers:
- Physical abuse
- Sexual abuse
- Verbal and emotional abuse
- Economic abuse
4. Can a woman be evicted from her home under this Act?
No, the Act provides women with the right to reside in the shared household, even if she has no legal title to the property. She cannot be evicted or excluded from the shared household except through the procedure established by law.
5. What is a Protection Order?
A Protection Order is a court order that prohibits the respondent from committing any act of domestic violence, aiding or abetting such acts, entering the victim’s workplace or other places she frequently visits, attempting to communicate with her, or alienating any assets.
6. Who can file a complaint under this Act?
A complaint can be filed by:
- The aggrieved woman herself
- A Protection Officer
- Any other person on behalf of the aggrieved woman
7. What is the role of a Protection Officer?
Protection Officers are appointed by the state government to assist victims of domestic violence. Their duties include:
- Assisting the victim in filing a complaint
- Providing information on her rights
- Preparing a Domestic Incident Report
- Ensuring the victim gets necessary relief and services
8. Can the court provide monetary relief under this Act?
Yes, the court can order the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and her children due to domestic violence. This can include medical expenses, loss of earnings, and loss due to destruction of property.
9. What is a Residence Order?
A Residence Order can:
- Restrain the respondent from dispossessing the woman from the shared household
- Direct the respondent to remove himself from the shared household
- Restrain the respondent’s relatives from entering the shared household
- Direct the respondent to secure alternative accommodation for the aggrieved person
10. Is counselling provided under this Act?
Yes, the Magistrate can, at any stage of the proceedings, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with a qualified counsellor.
11. Can the court grant ex parte orders?
Yes, if the Magistrate is satisfied that there is an urgent need, they can grant ex parte orders (orders without hearing the respondent) based on the affidavit of the aggrieved person.
12. Is there a time limit for disposal of cases under this Act?
The Act states that the Magistrate shall endeavor to dispose of every application within 60 days from the date of its first hearing.
13. What happens if a Protection Order is violated?
Violation of a Protection Order is a punishable offense. It can lead to imprisonment for up to one year, or a fine up to twenty thousand rupees, or both.
14. Can men file complaints under this Act?
No, this Act specifically provides protection to women. Men cannot file complaints under this Act as aggrieved persons.
15. Does this Act apply to all communities in India?
Yes, the PWDV Act applies to all women in India, regardless of their religion or community.
16. Can a woman seek custody of her children under this Act?
Yes, the Magistrate can grant temporary custody of children to the aggrieved person or the person making an application on her behalf.
17. What is the difference between this Act and Section 498A of the Indian Penal Code?
While Section 498A of IPC is a criminal law provision dealing with cruelty by husband or his relatives, the PWDV Act provides civil remedies and a broader definition of domestic violence. The PWDV Act also covers relationships other than marriage.
18. Can a woman file a complaint under both PWDV Act and Section 498A of IPC?
Yes, a woman can seek remedies under both laws simultaneously as they serve different purposes and provide different types of relief.
19. What is a Domestic Incident Report?
A Domestic Incident Report is a record of a domestic violence incident made by a Protection Officer or service provider upon receiving a complaint from an aggrieved person.
20. Are the proceedings under this Act held in private?
The Magistrate may conduct the proceedings in camera (in private) if they consider it necessary or if either party requests it.
21. Can orders passed under this Act be appealed?
Yes, an appeal can be made to the Court of Session within 30 days from the date on which the order is served on the aggrieved person or the respondent.
22. What is the role of police in cases of domestic violence?
Police officers are often the first point of contact for victims. They are responsible for:
- Registering FIRs in cases of domestic violence
- Informing victims about their rights under the Act
- Assisting Protection Officers in implementing court orders
- Providing immediate assistance and protection to victims
23. Can NGOs help in cases of domestic violence?
Yes, many NGOs are registered as service providers under this Act. They can:
- Provide legal aid, medical assistance, and shelter to victims
- Record Domestic Incident Reports
- Assist victims in filing applications before the Magistrate
- Provide counselling services
24. What is economic abuse under this Act?
Economic abuse includes:
- Deprivation of economic or financial resources
- Disposal of household effects, valuable assets, etc.
- Prohibition or restriction on continued access to resources or facilities
- Denial of property rights
25. Can a woman seek compensation for injuries under this Act?
Yes, the Magistrate can pass a compensation order directing the respondent to pay compensation for injuries, including mental torture and emotional distress, caused by domestic violence.
26. How does the Act address the needs of women with disabilities?
While the Act doesn’t have specific provisions for women with disabilities, it applies to all women regardless of their physical or mental condition. However, in practice:
- Courts are expected to be sensitive to the unique needs of women with disabilities
- Protection Officers and service providers should ensure accessibility of services
- The Act’s provision for multiple ways of filing complaints (including through Protection Officers) can help women with mobility issues
- Sign language interpreters or other aids may be provided in court proceedings if necessary
27. What provisions are there for women in rural areas who may have limited access to legal resources?
The Act tries to address the needs of women in rural areas through:
- Appointment of Protection Officers at the district and, if possible, sub-district levels
- Recognition of NGOs as service providers, many of which work in rural areas
- Provision for free legal aid
- Allowing complaints to be filed by others on behalf of the aggrieved woman
- Mobile courts in some states to improve access to justice in remote areas
28. How does the Act handle cases of domestic violence in same-sex relationships?
The PWDV Act is specifically designed to protect women from domestic violence, typically in heterosexual relationships. It doesn’t explicitly address same-sex relationships. However:
- The Act’s definition of “domestic relationship” is broad and could potentially be interpreted to include same-sex partnerships
- In practice, application of the Act to same-sex relationships has been limited
- LGBTQ+ rights advocates are pushing for more inclusive interpretation or amendment of the Act
- Individuals in same-sex relationships may need to rely on other laws or general provisions of the Indian Penal Code in cases of domestic violence
29. What are the challenges in implementing this Act, and how are they being addressed?
Some key challenges in implementing the PWDV Act include:
- Lack of awareness about the Act, especially in rural areas
- Insufficient number of Protection Officers and their often part-time status
- Delays in court proceedings despite provisions for speedy trials
- Inconsistent implementation across different states
- Cultural and societal pressures that discourage reporting of domestic violence
- Limited financial resources for implementation
- Awareness campaigns by government and NGOs
- Training programs for judicial officers, police, and Protection Officers
- Efforts to appoint more full-time Protection Officers
- Use of technology for case management and monitoring
- Collaboration with civil society organizations for better implementation
30. How has the COVID-19 pandemic affected the implementation of this Act?
The COVID-19 pandemic has significantly impacted the implementation of the PWDV Act:
- Lockdowns led to an increase in domestic violence cases, dubbed the “shadow pandemic”
- Access to support services and the justice system was limited during lockdowns
- Many courts moved to virtual hearings, which posed challenges for women without access to technology
- Economic stress exacerbated domestic tensions in many households
- Social distancing measures made it harder for women to seek help or escape abusive situations
- Many states set up emergency helplines and WhatsApp services for domestic violence complaints
- NGOs and government agencies increased online and phone-based support services
- Some states declared services for domestic violence victims as essential services during lockdowns
- There’s been increased emphasis on training police and protection officers to handle domestic violence cases in the context of COVID-19