Paper-7

Women & Law

Domestic Violence & the Domestic Violence Act, 2005

(A) Personal Details

Role Name Affiliation

Principal Investigator Prof. Sumita Allahabad University, Allahabad
Parmar
Paper Coordinator Prof. Kiran Gupta Delhi University
Content Writer/Author Dr. Sonal Shankar Allahabad University
(CW)
Content Reviewer (CR) Prof. Kiran Gupta Delhi University
Language Editor (LE) Prof. Sumita Parmar Allahabad University

(B) Description of Module

Items Description of Module

Subject Name Women’s Studies
Paper Name Women and Law
Module Name/ Title, Domestic violence & the domestic violence
description act
Module ID Paper-7, Module-26
Pre-requisites The reader is expected to have some
knowledge about the issue of domestic
violence
Objectives To understand what the law is about domestic
violence and to become aware of how it can be
used for one’s protection

Keywords Violence, social, law

Objectives:

· To make readers aware about the exact meaning and magnitude of Domestic Violence
· To throw light on the existing legal framework regarding Domestic Violence with focus
on the Protection Of Women from Domestic Violence Act,2005.

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Learning outcomes:

· Introduction to the legislative provisions regarding domestic violence.

· Knowledge as to the forms which such violence can take and the actions which can be
taken.

Contents
1. Meaning of Domestic Violence
2. Provisions under Indian Penal Code-
3. The Protection of Women from Domestic Violence Act, 2005
3.1 Definitions
3.1.1. Definition of domestic violence.
3.1.2. Aggrieved person
3.1.3. Respondent
3.1.4. Domestic Relationship and shared Household
3.2 Machinery for Enforcement
3.2.1 Services Providers
3.2.2 Protection Officers
3.2.3 Police
3.2.4 Magistrate
3.3 Reliefs under The Act -
3.3.1 Protection Orders
3.3.2 Residence Orders
3.3.3 Custody Order
3.3.4 Monetary Reliefs
3.3.5 Compensation Orders
3.3.6 Interim And Exparte Orders
3.4 Penalties Under The Act.

1.Meaning Of Domestic Violence

Domestic violence is one of the most pervasive forms of violence against women. Domestic
violence can be said to be the violence committed against a women within the domestic sphere.
It is generally committed on a woman by her husband or his family members but can also be
seen in one’s parental or natal family. Such violence can take various forms-physical, sexual,
psychological, verbal or economic. Any woman-A girl child, unmarried, married, widowed,
divorced or old may be victim of such violence.
It explodes the myth that a home is the safest territory for a woman. The tragedy of such
violence victims lies in the fact that many a times they do not get any initial support. Neighbours,
members of public and sometimes even public authorities do not interfere thinking it to be a

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‘their private affair’. Moreover social pressure, absence of viable alternatives of sustenance, lack
of a proper support system, fear of losing one’s children or being turned away from home keeps
many women from reporting such cases and forces them to endure such violence and suffer in
silence. Such violence knows no barriers, of age, socio-economic, religious, racial or cultural.
Domestic violence is the most spiteful and menacing form of violence prevalent in society. It is a
myth that such violence is only faced by poor or uneducated women. Though it’s true that poor
victims face the problem of severe resource unavailability, even the more affluent spouse may be
in an equally worse trap due to social stigma or greater economic pressures.
1. Provisions Under Indian Penal Code-
Until recently there was no definition of domestic violence in Indian law. This does not mean
that acts of domestic violence were not recognised in India. Besides recognizing and punishing
the acts of ‘cruelty’ under criminal law it is also considered a ground for divorce under all the
personal laws and the Special Marriage Act. Domestic violence is often understood to constitute
such “cruel” conduct towards the woman. The Indian Penal Code, Criminal Procedure Code of
India (section 174) and Indian Evidence Act (Section 113A and 113B) contain specific
provisions penalizing dowry demands, dowry deaths and cruelty against women, all of which are
forms of domestic violence against women. The introduction of Section 498-A in the IPC in
1983 was significant in bringing domestic violence to the fore. Section 498 reads as follows-
“Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years and shall also be liable
to fine.
Explanation-For the purpose of this section, "cruelty" means-
(a) Any willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health whether
mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her meet such
demand.”
However Section 498A was not enough to fight domestic violence.In 1986 Section 304-B
pertaining to Dowry Deaths was introduced. However this section relates only to dowry deaths
and to no other form of violence. Other provisions of the Indian penal Code relating to offences
of assault, hurt, grievous hurt, dowry, death murder, rape etc, are also often used against the
perpetrators of violence. The problem however is that such criminal law remedies do not
succeed in providing immediate or emergency protection to the victims of domestic violence..
Thus, a desperate need was felt for an Act which could specifically cater to this cause.
2. The Protection of Women from Domestic Violence Act, 2005

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 The above need was answered by the introduction of The Protection of Women from
Domestic Violence Act, 2005 (The Act). The Hon’ble Supreme Court after examining the
statement of objects and reasons for the enactment has rightly observed in V.D Bhanot v. Savita
Bhanot-(2012)3 SCC 183, that “it was with the view of protecting the rights of women under
Articles 14,15 and 21 of the constitution that parliament enacted The PWD Act, 2005, in order to
provide for some effective protection of rights guaranteed under the constitution to women, who
are victims of any kind of violence occurring within the family and matters connected therewith
and incidental thereto and to provide an efficient and expeditious civil remedy to them.” After
much debates and discussions finally a civil law relating to Domestic violence has been put in
place.
This particular Act has been enacted in keeping with the various guidelines given by several
International conventions and declarations. The Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action 1995 have acknowledged this. The United Nations
Committee on Convention on Elimination of All Forms of Discrimination against Women
(CEDAW) in its General Recommendation No.XII (1989) has also recommended that State
parties should act to protect women against violence of any kind especially that occurring within
the family. The Act is significant because for the first time the term ‘domestic violence’ has been
widened in meaning and scope from the culture specific restriction of ‘dowry deaths’ and penal
provisions to positive civil rights of protection and injunction.

The new enactment contains five chapters and 37 sections. It defines domestic violence and
provides civil remedies for women, facing domestic violence, in the form of protection orders,
residence orders, custody orders, monetary relief’s or compensation orders and makes the breach
of protection orders punishable under section 31 of the Act. However section 31 (3) specifies that
while framing charge under section 31(1), the magistrate may also frame charges under section
498-A of the IPC or any other provision of IPC or the Dowry Prohibition Act, 1961 if the facts
disclose the commission of an offence under those provisions. Let’s analyse the important
provisions of the Act.
3.1 Definitions - Lets discuss the important definitions provided under The Act –
3.1.1 Definition of domestic violence- Section 3 of the Act defines Domestic he
term domestic violence has been defined in detail under the newly formed
protection of women from Domestic violence Act 2005. Domestic violence is
defined in a comprehensive way as comprising physical, mental, verbal,
emotional, sexual and economic abuse, harassment for dowry, acts of threatening
to abuse the victim or any other person related to her. The definition covers every
possible form of violence. It also covers such forms of violence that were either
not addressed earlier, or that were addressed in ways not as broad as done here.
For instance, emotional abuse includes insults on account of the victim’s not

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 having any children or male children. The definition is in consonance with the
International documents relating to domestic violence.
3.1.2 Aggrieved person - Under section 2(a) the definition of an 'aggrieved'
person is equally wide and covers not just the wife but any women who is or has
been in a domestic relationship and who alleges to have suffered from domestic
violence. Aggrieved person would include a wife, daughter, mother, sister, child,
widowed relative, in fact, any woman residing in the household who is in a
domestic relationship with the respondent, is also covered. Therefore, the Act
only covers women.
3.1.3 Respondent - The respondent under the definition given in the Domestic
Violence Act, 2005 is ‘any male, adult person who is, or has been, in a domestic
relationship with the aggrieved person’ but so that his relatives who are involved
in such violence do not escape, the case may also be filed against relatives of the
husband or male partner by a married woman or a woman living in a relationship
in the nature of marriage. It is important to note as per the literal definition
provided under section 2(q) that no complaint under the Act can be filed against a
women, except that a married woman or a woman living in a relationship in the
nature of marriage may file a complaint against the female relatives in the marital
family or the partner’s family who are living in the shared household, e.g., a
daughter-in-law against her mother-in-law. The question which arises is therefore
whether a female can be made respondent? There was a conflict of opinion
amongst various high courts on this issue. However the law on point has been
conclusively settled by the Apex Court in Sou.Sandhaya Wankhade v. Manoj
Bheemrao Wankhade& Ors-(2011)3SCC 650 that a female can be made
respondent.
3.1.4. Domestic Relationship and shared Household-The Act introduces the
concept of a domestic relationship and shared household. These terms are crucial
to understand the categories of women who can ask for relief under the Act.
Domestic relationship basically means the relationship enjoyed by women with
respondent in the shared household. Such women may be related to the
respondent by blood or marriage or relationship in nature of marriage (void
marriages, bigamous marriages etc.) or adoption or may be a family member
living in a joint family. Shared household means any house in which a woman
stays or has stayed in domestic relationship with respondent whether the house is
the sole property of respondent or taken on rent by him on his own or with the
aggrieved person or it the property of the joint family of which respondent is the
member irrespective of the fact that respondent does not have any interest or title
to the property. In the case of S.B.Batra v. Taruna Batra (AIR 2007 SC 1118)

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 the question was whether the property i.e. the residential house of the mother of
the husband in which the husband and wife used to stay together can be called a
shared household? It was contended on behalf of the wife that as per the definition
of the shared household given in Section 2(s) such house would come within the
ambit of shared household. The Hon’ble Supreme Court observed that “Wife is
only entitled to claim a right to residence in a shared household and a shared
household would only mean the house belonging to or taken in rent by the
husband, or the house which belongs to joint family of which the husband is a
member.” In the instant case the property in question did not belong to the
respondent nor was it taken on rent by him nor was it a joint family property of
which respondent was the member. It was the exclusive property of the mother of
the respondent. The court following the reasoning given above held that the house
could not be called a shared household.
3.2 Machinery for Enforcement-The Act establishes adequate machinery to ensure
effective protection of women from domestic violence. The Act provides three categories
of people to whom aggrieved person can complain to-Service Providers, Protection
Officers and Magistrate. Let’s understand these concepts-
3.2.1 Services Providers – The Act creates a new machinery by the name of
service providers. Section 10(1) of the Act defines Services Providers as
registered organization which work 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. As per section 10(2) a service provider shall have the
power to record the domestic incident report in the prescribed form and on the
desire of the aggrieved person it shall forward a copy of such report to the
Magistrate and the Protection Officer having jurisdiction in the area where the
domestic violence took place. It can also get the victim of the violence medically
examined and forward a copy of such report to the Protection Officer and the
police station within the local limits of which the domestic violence took place. It
can also ensure that if the aggrieved person requires, she is provided shelter in a
shelter home and shall 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. Section 10(3) further provides that the service provider shall
be exempt from any action for anything which was done in good faith or intended
to be done in the exercise of powers or discharge of functions under the Act
towards the prevention of the commission of domestic violence.
3.2.2 Protection Officers – The Act creates a special post of Protection
Officers to be appointed by the State Government, at least one for each district,
who shall preferably be a woman. The Protection of Domestic Violence Rules,
2006 provides that Protection Officers may be member of the Government or

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 members of NGOs. For appointment as a Protection Officer such members must
have at least three years of experience in the social sector and the tenure shall be
for a period of three years. Any person who has reason to believe that an act of
domestic violence has been committed may give information about it to the
Protection Officer having jurisdiction in the area either orally or in writing.
Section 9 of the Act lays down duties of the protection officers. Extensive duties
are laid under the Act. Such officers are required to assist Magistrates in discharge
of function of the court. Their duties include making a Domestic Incident Report
to the Magistrate upon receipt of a complaint of domestic violence and forwarding
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, making available the prescribed form in
which a complaint is to be made free of cost, maintaining a list of all service
providers providing legal aid or counseling, shelter homes and medical facilities,
making available a safe shelter home, getting the aggrieved person medically
examined, in case of bodily injuries and forwarding 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.
Section 5 of The Act makes it incumbent upon the protection officer or service
provider or police officer or the magistrate who has received complaint of the
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 to inform
such woman of her right to make an application for obtaining relief by way of
various orders under this Act, of the availability of services of service providers;
of the availability of services of the Protection Officers, of her right to free legal
services under the Legal Services Authorities Act, 1987 (39 of 1987),of her right
to file a complaint under section 498 A of the Indian Penal Code (45 of 1860),
wherever relevant.
3.2.3 Police – Apart from section 5 the police also have the duty at the same
time, to take appropriate action in accordance with law upon receipt of
information for commission of cognizable offence. Hence if a complaint of a
cognizable offence such as dowry death, causing hurt, criminal breach of trust or
cruelty to a married woman is disclosed to the Police Officer, he is bound to
register the offence apart from fulfilling his obligations/duties under the Act. The
Act does not override the existing criminal law and civil law remedies that
victims of domestic violence have under the law.
3.2.4 Magistrate - The magistrate, under the Act is empowered to pass various
reliefs like protection orders, residence orders, monetary relief, custody orders,
compensation orders, interim and ex parte orders. Under Section 15 of the Act the

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 Magistrate may, if he so desires in any proceeding under this Act may also take
the assistance of a Welfare Expert who is any person, preferably a women,
whether related to the aggrieved person or not, including a person engaged in
promoting family welfare, for assisting him in discharging his functions
Magistrate may also direct the respondent or the aggrieved person under Section
14 of the Act to undergo counseling either singly or jointly with any member of a
service provider who possess such qualifications and experience in counseling
As per section 12 an aggrieved woman 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 relief under the act who shall fix the first date of hearing of
the application ordinarily within three of its receipt and shall endeavour to dispose
of every application within sixty days of first hearing.
Section 16 provides that the proceedings may be held in camera by the magistrate
if the either party so desires.
3.3 Relief under The Act - The Act provides for a novel and useful combination of
civil and criminal remedies. While civil remedies can be designed to cater the needs of a
particular victim, criminal remedies provide a much required deterrent effect on the
perpetrators of violence. The Act provides for much needed reliefs for the victim of
domestic violence in form of monetary compensation protection order, residence orders
and custody orders etc. Let us understand the various types of reliefs that can be
obtained-
3.3.1 Protection Orders - A protection order is a relief measure that has been
used in most domestic violence legislation internationally. It is one of the ways by
which any sort of future occurrence of violence is sought to be curbed by issuance
of orders by the magistrate. This order can be used to stop the respondent to
commit any act of domestic violence against aggrieved women. It can also be
issued on the likelihood of occurrence of domestic violence. The scope of such
orders is quite wide. Each individual situation calls for a different type of solution
and the Act does not try to put any kind of limit on the powers of the Magistrate
to provide relief as required in a particular case. Protection order as can be seen is
not merely to prevent a person from committing an act of violence or aid or abet
the same, but can also extend to granting injunctions against the respondents from
repeating any of the acts mentioned in the application. Some examples of such
Protection Orders are meant for protecting the aggrieved person and they may
take various forms likei-Prohibiting respondents from entering the
school/college/workplace of the aggrieved person and approaching her;
Prohibiting respondents from stopping aggrieved person form going to her place
of employment/school/college/any other place etc. The women can also injunct
the respondent from alienating her stridhana articles etc.

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 The magistrate after giving an opportunity of being heard to the aggrieved person
and the respondent and on being prime facie(the evidence of a fact should be such
that standing alone and unrebutted it would be sufficient evidence to prove the
same. Satisfied that either domestic violence has occurred or is likely to take
place, may pass such protection orders. The degree of proof in cases under the Act
would be that of the ‘preponderance of probabilities’ as required in civil law and
not ‘beyond reasonable doubt’ as required in criminal cases application In the
present enactment, protection orders exist till the aggrieved person applies for it to
be removed, and the court is satisfied that such an application is not being made
due to coercion
3.3.2 Residence orders - Residence orders are a very important form of relief
to the aggrieved person as it ensures that the women who complain of domestic
violence are not thrown from their houses. One of the main reason which deter
many a women to take any action is the fear of being turned out of their homes.
The Act provides the woman with the right to residence in her shared household.
Legislature has used the term shared household and not matrimonial home as
latter is used only in context of married women.
The Act does not create any title or beneficial interest in the property however it
recognizes the right of women in a domestic relationship to reside in a shared
household but prohibits a woman from being rendered shelter less. In order to get
relief on the ground that the applicant lives or has lived in the shared household, it
is likely that the applicant must show some form of a domestic relationship.
Courts in other countries have considered the following factors incoming to a
conclusion as to the establishment of a relationship between the partiesii-The
commitment of the parties to the shared household; the existence of a significant
period of cohabitation; the nature of financial and other dependency between the
parties including significant mutual financial arrangements vis–a-vis the
household; the existence of children of the relationship; the role of the partiers in
maintaining the household and in the care of the children;
A women, to get a residence order needs to show that she has been dispossessed,
if however she has left on her own she may not be entitled to a residence order. A
woman, who has stayed in a domestic relationship in a shared household cannot
be dispossessed except in accordance with the procedure of law i.e. eviction
proceedings.
If the aggrieved person wants, she can claim alternative accommodation. She can
claim a right to separate residence if she is faced with violence and does not want
to live in the shared household or under other circumstances. In these cases, the
respondent will have to provide the aggrieved person with alternative
accommodation.

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 The relief of residence order is a praiseworthy relief as it saves women from being
rendered homeless, which she definitely would have to face in the event of filing
complaint against the respondent under the Act. This order provides them with the
much needed security to agitate there cause .
3.3.3 Custody Order another praiseworthy relief is provided in the form of
custody order under section 21 of the Act. One of the biggest reasons which force
a woman to bear the acts of domestic violence is the fear of losing her children.
It’s this fear of separation which keep a lot of women from taking any action
against the perpetrator of the violence. 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 of
the person making an application on her behalf and specify, if necessary, the
arrangements for visit of such child or children by the respondent irrespective of
whether the aggrieved person has sought custody of the child in a civil court or
not and if such relief has been granted by the civil court or not. If the Magistrate
considers that the visit of the respondent would be harmful to the interests of the
children, then the Magistrate may refuse to allow such visit. In granting an order
of custody, the court shall be guided by the principle of “best interest of the
child”.
3.3.4 Monetary reliefs - Another progressive, easy form of relief is monetary
compensation, which includes compensation for expenses resulting from domestic
violence such as cost of treatment for injuries, maintenance of the aggrieved
woman and her children, and damages for mental distress resulting from domestic
violence as would be awarded in a civil suit.
3.3.5 Compensation Orders - Apart from the other reliefs, the magistrate under
section 22 can grant compensation to the victim on an application made by the
aggrieved person by 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 the respondent.
3.3.6 Interim and Ex parte orders - Under section 23 of the Act, the Magistrate
can grant ex-parte orders (i.e. orders passed after hearing only the applicant
without hearing the respondent, if the respondent fails to appear after notice or
before the respondent is given notice where the court feels that the circumstances
so requires it) and interim orders, which are orders that are passed when case is
pending. These remain in existence till the final orders are passed. The Act gives
the Magistrate the powers to pass such interim order as he deems fit and proper.
As per section 25 the above orders passed by the Magistrate under the Act remain
in force till either the aggrieved person or the respondent apply to the court and
satisfy the Magistrate that there is a change in the circumstance, which require

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 alteration, modification or revocation of any order Thus the parties can also seek
modification of the order or seek different remedies on the same application under
changed circumstances.
3.4 Penalties under The Act - The Act combines feature of both civil and criminal
laws. It is governed by the Code of Criminal Procedure and the Magistrate passes the
orders, but it provides remedies in the nature of civil law. The Magistrate passes the
relevant orders directing the respondent to do or abstain from doing something. The aim
of the penalties under the Act is the enforcement of orders of the court. Thus the law
seeks to assist the victim of violence and if the respondent fails to abide by the order,
only then is he visited with the penalty.
Section 31 of the Act makes it an offence if the Respondent doesn’t abide by the terms of
the protection order. Section 31 (1) makes a breach of any order passed under the Act,
whether an interim order or final order, an offence under the Act and makes it punishable
with imprisonment of either description (simple or rigorous) for a term up to 1 year, or
with fine up to Rs. 20,000/- or with both. The offence under section 31 (1) shall be
cognizable and non bailable and the court can convict on the sole testimony of the
aggrieved. Section 31 (3) states that charges can be framed for offence under section 498
A of the Indian Penal Code (45 of 1860) or any other provision of IPC or the Dowry
Prohibition Act, 1961, as the case may be, if the facts disclose the commission of an
offence under those provisions. Thus the breach of the order under this Act can also make
a person liable for being tried for offence under order criminal laws even though the
aggrieved person has not filed any FIR or complainant regarding the same.
The Act is a very well intentioned and well thought of piece of legislation. If properly
implemented and interpreted it can go a long way in addressing the complaints of women
who ask for protection under this act. However women themselves have to take lead in
fighting violence against them.

i
Indira Jaisingh, Law of Domestic Violence, Universal law Publishing Co. Pvt. Ltd., Delhi(2007)pp.49-50.
ii
Ethel Rabinshon Women’s Legal Center Trust v Richard Gordon Volks, case no. 7178/03 in the High Court of
South Africa (Cape Provincial Division).5

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