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Protecting the vulnerable

23 July 2010 10,612 views One Comment

Shrouded under unjust criticism, the Protection of Women from Domestic Violence Act has suffered much in the country. Advocate Maria Louis demystifies the historic legislation by detailing its finer aspects that often go unnoticed or unheeded, even by the practitioners of law

The Protection of Women from Domestic Violence Act (PWDVA) creates three basic rights for victims of domestic violence: to be protected from violence, to reside in a shared household, and to seek and secure monetary relief.

Lawyers should adopt a clear and holistic approach to the DV Act. For this purpose, it is imperative that lawyers familiarise themselves with the provisions of the Act and build an expertise in the unique features of the law, such as the ‘shared household’ provision. Furthermore, it is vital that lawyers take an extra mile to understand the logic behind the enactment of the PWDVA. To this end, each provision of the Act must be interpreted in the context of the philosophy behind the Act. Thus, the Statement of Objects and Reason, enumerated in the Preamble of the PWDVA, has to be read into every provision of law so as to achieve the results intended by this Act. The Objects and Reasons contextualise the Act within the larger policy framework of fighting against domestic violence. Lawyers should, therefore, use the Preamble of the PWDVA as a guideline and evaluate orders on its basis and read the Objects and Reasons of the Act for more clarity and unambiguity in legal arguments.

New terminology in PWDVA

The PWDVA painstakingly defines certain new terms including, “aggrieved person”, “domestic relationships” and “domestic violence”. New concepts such as “shared household” have also been introduced into the jurisprudence on domestic violence through this Act. Lawyers must be thoroughly proficient with the uses and limitations of these terms while using the law. For example, while the DVA provides for punishment for breach of protection orders, various courts have ruled that breach of orders in terms of Section 18 alone will be liable for punishment as per Sections 31 and 32, thus limiting the avenues by which petitioners can secure effective implementation of protection orders passed under this Act.

Section 4(1) of the PWDVA states “any person who has reason to believe that an act of domestic violence has been, or is being or is likely to be committed may inform the Protection Officer (PO).” It further specifies that there is no civil or criminal liability on the informant in good faith. Section 4 therefore creates a social responsibility on members of the community at large who have knowledge of an already committed act or in case of any likelihood of commission of domestic violence in future, to come forward to file a complaint on behalf of the victim which also implies that all individuals have an obligation to react against violence.

Law enforcement agencies

Section 5 of PWDVA is a social enactment that creates various legal, social, judicial, and administrative mechanisms to provide assistance to the victims of domestic violence. The provision creates a socio-moral responsibility on judicial, law enforcement, legal, medical and social institutions to provide assistance to victims and survivors, informing them of their rights and securing immediate relief. It specifies the duties of the police, service providers, protection officers, and magistrates, emphasising that they, “shall inform the aggrieved person 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; of the availability of services of the protection officers; of her right to free legal services under the Legal Services Authorities Act, 1987; of her right to file a complaint under Section 498-A of the Indian Penal Code (45 of 1860), wherever relevant.”

The word “shall” in the introductory paragraph of this section is a mandatory command, not obligatory or aspiration. The effect of using such strong language in the Act is to create social responsibility for the individual’s acts.

Sections 7, 8 and 10 create the responsibility on the government to provide institutional support for victims such as shelter homes, medical facilities and service providers. Section 6 clarifies that shelter homes are bound to provide shelter, Section 7 clarifies that the person in charge of a medical facility shall provide medical aid to the aggrieved, and Section 10 lays down the duties of service providers, which include the recording of Domestic Incident Reports (DIRs), getting the victim medical assistance, ensuring her with shelter and also ensures immunity from prosecution. These sections clarify that it is an institution’s legal responsibility to help victims of domestic violence.

Section 11 lays down the various duties of the Government: to give the Act wide publicity through the media, to conduct periodic sensitisation and give awareness training to the state/central/police/judicial officers, to co-ordinate different ministries/departments and periodical review, and to ensure that protocols for the various ministries concerned including courts are prepared and put in place.

Role of the protection officer

Sections 9, 30, 33, read with rules 8, 9 and 10 outline the roles and responsibilities of the protection officer, who acts as a bridge between the court and the victim of domestic violence. Section 8 of the Act specifies that as far as possible, protection officers should be women and appointed as full-time positions. The appointment of full-time POs is currently under consideration in some states. Section 30 of PWDVA clarifies that protection officers are public servants. Although they have some immunity, such as through action taken in good faith (Section 35), the Act does provide for penalising them for not discharging their duties under Section 33. For instance, the offending officer can be prosecuted by the state for failing to carry out his/her responsibilities and duties, as specified in Section 34.

Section 9 of the PWDVA defines the duties and functions of the protection officers, which include:

(a) Assisting the magistrate

(b) Making Domestic Incident Reports (DIRs) and forwarding copies to police and service providers

(c) Making applications for protection orders

(d) Ensuring that legal aid is provided to victims of domestic violence

(e) Maintaining a list of service providers, shelter homes, medical facilities and counselors

(f) Making shelter home facilities available to the aggrieved and forwarding copies of the related reports to the magistrate and the police

(g) Providing the aggrieved person with a medical examination and forwarding a copy of the medical report to the magistrate and police

(h) Ensuring the compliance and execution of monetary relief under Section 20 as per the Code of Criminal Procedure

(i) Performing any other prescribed duties

Provisions for relief

Sections 18 to 22 lay down the different forms of relief that are available to victims of domestic violence, such as protection orders, monetary relief, custody order, residence order, compensation order. While Section 23 provides for interim ex-parte orders, Sections 26 and 28 are important provisions that could be put to use to the fullest extent, in getting to provide relief under the Act in any civil/criminal /family court and also to, lay their own procedures in disposing of applications under the PWDVA.

Sections 12, 13, 14, 15 and 16 in the Act define some of the provisions and procedures for obtaining orders for relief. Some of the important points to be noted in these sections are that, applications to the magistrates under Section 12 can be made in Form II, the magistrate should fix the first date of hearing not beyond three days of the receipt of the application, and the case should be disposed off within 60 days from the date of its first hearing. Section 13 specifies that the notice of hearing should be given to the protection officer to serve on the respondent within two days and that the official should file a declaration for the service of the notice. Section 14 states that the magistrate may direct either party to undergo counselling, whereas Section 15 clarifies that the magistrates may use the service of a welfare expert — preferably a female — to assist him/her, and Section 16 specifies that proceedings may be held in-camera.

Right to residence

Section 17, which lays out the right of a woman to reside in the shared household, is one of the most important and prominent concepts in PWDVA. The section allows every woman in a domestic relationship to “have the right to reside in the shared household whether or not she has any right, title or beneficial interest in it…The aggrieved person shall not be evicted or excluded from the shared household or part save in accordance with the procedures established by law.” Therefore, it is important to note that the woman cannot be evicted or excluded from the shared household. This new and bold concept under the Act is a revolutionary piece of enactment for women who are suffering violence for years for fear of being thrown out of the matrimonial home. This provision should be carefully scrutinised and its clauses safeguarded and expanded upon, despite some recent negative judgements in this regard.

Section 19 of the Act should not be confused with any provision for providing women with property rights. It merely restrains the respondent from dispossessing or disturbing the victim from the shared household. Through this section there can be an order directing the respondent to remove himself from shared household, although no such orders could be passed against women. Orders can also be passed restraining a respondent or his relatives from entering any portion of household where the victim resides, and it also restrains alienation from the shared household, or restraining the respondent from renouncing his rights in the household. Section 19 can help victims to secure an alternate accommodation, get directions for police protection, for the payment of rent and other payments, or for directions for the return of property/Stridhan/other valuables to the woman.

The most important essence of this enactment is (Section 36) that the Act shall be, in addition to and not in derogation of, the provisions of any other law for the time being in force.

–The author is a lawyer with HRLN, Kerala unit

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One Comment »

  • Haku Tatak said:

    Dear Combat Law,

    The talk of domestic violence itself is a delay of action in giving a judicial remit to the aggrieved ones. The inducement in our judiciary has always been sincere and the influential people with pilfered stash of public money has time and again molested the most virtuous sentinel of justice.

    There are numbers of NGO’s Human Rights Networks and organizations dealing with various types of legal issues but sadly confined to a limited ambit of recognition. The extension of such schedule will cost us a nasty forward.

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