³The country or nations which do not respect women have never become great nor will ever be in future.´ Swami Vivekanand Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women. 2/20/2012 2 What Do We Mean By Domestic Violence To understand the essence of the word domestic violence first of all we should know the meaning of the words domestic and violence separately. The word domestic means ³within the realm or the territory of house´. And the word violence means ³action using physical force and intended to hurt or kill someone to cause damage´. Thus the word domestic violence means ³an action or physical force which is being used within the realm or territory of house to intended to hurt or cause damage any particular subject in the domestic household´. In other words we can say that it is an unpleasant and destructive natural force against the family member by one another. 2/20/2012 3 Domestic Violence can be described as when one adult in a relationship misuses power to control another. It is the establishment of control and fear in a relationship through violence and other forms of abuse. The violence may involve physical abuse, sexual assault and threats. Domestic Violence isn't just hitting, or fighting, or an occasional argument. It's an abuse of power. The abuser tortures and controls the victim by threats, intimidation, and physical violence. 2/20/2012 4 Types Of Domestic Violence Physical violence Mental or Psychological violence Economical or financial abuse Sexual Violence or Sexual Abuse Verbal abuse 2/20/2012 5 . SIRAJMOHMEDKHAN JANMOHAMADKHAN V. harm.Physical Violence The word physical means ³Something related to body rather than mind or relating to things that you can see hear or feel´. physical violence is that violence or exercise of power which has harmed the body.. It is the intentional use of physical force with the potential of causing bodily injury.Thus. (1981) 4 SCC 250 2/20/2012 6 . or death. disability. HAIZUNNISA YASINKHAN &. ANR. KAMLA DEVI. eating disorders. SHOBHA RANI V. drug and alcohol abuse. It is the deliberate act of doing something to make the victim feel diminished or embarrassed or isolated. (2001) 4 SCC 250 2/20/2012 7 . (1988) 1 SCC 105 CHETAN DASS V.Mental or Psychological violence Violence which affects the human mind is called emotional violence. This type of abuse is the hardest to spot because the injury is not physical or immediately visible. People undergoing emotional abuse are often seen to suffer from depression which puts them at an increasing risk of suicide. MADHUKAR REDDI. Thus we can say that ³when the abuser has complete control of the victims money and other economic resources. there is another person commanding the expenditures. money is used as the means of having control over the partner.C. No. For example. M. it is called economic violence.3878/2009 2/20/2012 8 .Economical or financial abuse Here. OF DELHI & ANR. if a person is earning for the fulfillment of his or her necessities but he is not free to spend his or her money according to their interest. Section 5 clause (iv) of Protection of women from domestic Violence Act discusses economic abuse. Crl. is called economic abuse´.C. VIJAY VERMA VS STATE N.T.. to injuring or endangering the life or the victim´. because it also violates the body s certain organs. Section (3) clause (ii) of Protection of women from Domestic violence act deals with sexual abuse as such.Sexual Violence or Sexual Abuse Sexual violence is somewhat related to physical violence. It is any assault or unwanted act of a sexual nature. degrades or otherwise violates the dignity of women´. ³It can include anything from exhibitionism and exposures to pornography to unwanted sexual touching.Sexual abuse includes any conduct of a sexual nature that abuses huminilities.Now a days child are also found to victim of sexual abuse. 2/20/2012 9 . to rape. ³It is a form of profanity in that it can occur with or without the use of expletives´. A. It is also called as revealing is a form of abusive behavior involving the use of language.JAYACHANDRA V. ANEEL KAUR REPORTED IN (2005) 2 SCC 22 2/20/2012 10 .Verbal abuse Verbal abuse is giving its meaning itself as such type of abuse which hurts somebody verbally or we can say that violence which is committed by the words either written or spoken Is called verbal abuse. And the Amendments to the Dowry Prohibition Act were made. a contradiction in terms. Where Adv. 2/20/2012 11 . Indra Jai singh .(Senior Advocate Supreme Court of India) played an eminent role in drafting of the bill and in 1989. the insidious nature of domestic violence has been documented across nations and cultures worldwide. domestic violence is a veritable incongruity. According to Indra Jai Singh the myth of the family as a sanctuary of tranquility and harmony. Violence shatters the peaceful image of the home. Again In 1992 the first draft of the ³Prevention and Protection of Women from Domestic Violence´ is prepared by the Lawyers Collective. the safety that kinship provides.HISTORICAL BACKGROUND OF THE ACT In 1980 The Indian Women¶s Movement breaks the silence on domestic violence and demands legislative reforms. Nonetheless. 2005). With the change of government the NDA bill dies. In 2003-2004: The signature campaign from 8 states collects 2.5 lac voices from the ground to demand an early passage of the Bill. The Act receives presidential assent and enters in law books. 2/20/2012 12 .In 1994 The National Commission for Women takes up the draft bill on domestic violence. this bill sparks intense protests and is referred to a Parliamentary Committee for review. In 2003 The NDA government brings in a bill on domestic violence. In 2005 The UPA Government passes the Protection of Women from Domestic Violence Act (PWDVA. After the Government of India passed the PWDV Act in October 2005. Keeping this in mind. Lastly in 2006 (26th October). Action India calls First National Conference on PWDVA in February 2006 to pressurize the government for early action. the rules to the PWDVA are notified and the law comes into force like this the historical development takes place and we got the Act. 2/20/2012 13 . after sustained pressure from women s groups. the task ahead of the women s groups was to see that the Act was notified at the earliest. Section 494 . Section 361 kidnapping from lawful guardianship. Section 498A Cruelty against women 2/20/2012 14 . 1860 under various sections provides protection to the women.OTHER PROVISIONS RELATING TO VIOLENCE AGAINST WOMEN The Indian Penal Code. abducting or inducing a woman. Out of these most important are Section 304-B Dowry death. Section 372 selling minor for purposes of prostitution. Section 498 -enticing or taking away or detain a married woman.intercourse by public servant with woman in his custody. Section 366 kidnapping.remarriage . Section 376-A intercourse by a man with his wife during separation. Though there are some other enactments done by the British government after considering the worse situation of women. 376 Rape. Section 376 rape. Section 376-D intercourse by any member of the hospital with any woman in that hospital. There are many provision in the Indian Penal code. Section 376-B . 1860 like. Section 498-A cruelty against women. The criminalisation of domestic violence in the form of ss. 2006 is pending approval from both the houses. 2/20/2012 15 . 304B in 1986 and corresponding provisions in the Indian Evidence Act. 1860. 498A and 304B (dowry death) sought to increase the certainty and severity of legal responses.The demand for the criminalisation of dowry death and domestic violence was a culmination of all these struggles ending successfully in the enactment of Indian Penal Code. The Sexual Harassment of Women at their Work Place (Prevention) Bill. legal. there is no specific legislation in India to deal with sexual harassment of women at workplace. and moral disparities in the legal protections afforded to abused women. 498A in 1983. 1872. thereby correcting historical. s. At present.s. The bill once passed aims at providing legal protection to women at workplace against any kind of sexual harassment ranging from staring to rape. These guidelines encompass a comprehensive definition of sexual harassment.the Supreme Court has laid down in the case of Vishaka vs. directions for establishment of a complaint mechanism and the duty under which employers are obligated to obviate any such act. State of Rajasthan AIR 1997 SC 3011 are to be followed. 2/20/2012 16 . This act is based on reasonable classification to equal opportunity to women in case public employment and in respect of life. 2/20/2012 17 . Article 15(3) . Then Article 16.15 (1) empowers the State to take affirmative measures for women. caste etc. Then Article 15-prohibition of discrimination on the grounds of sex.provides for equality of opportunities in the matter of public appointments. The directive principles also explain about women like Article 39.enjoins the state to provide an adequate means of livelihood to men and women and Equal pay for equal work. The history show that whatever earlier women have suffered and they have been suffering therefore it is a remedy for them. religion. 2005 Although the Article 14 states about equality that does not mean that it¶s against the men for that reason many voices come from mean all over the India to protest against this Act.CONSTITUTIONALITY OF THE DOMESTIC VIOLENCE ACT.which is an exception to the art. Subject to the constitution parliament may make laws for the whole or any part of the territory of India. and the Legislature of a State may make laws for the whole or any part of the State. The Parliament is vested with the power of making laws for the whole or part of India for implementing any treaty. State to ensure the provision for just and humane condition of work and maternity relief. The fundamental duty on every citizen to renounce the practices derogatory to the dignity of women. 2/20/2012 18 .Likewise. association or other body etc. agreement or convention with any other country or countries or any decision made at any international conference. All these provision are providing protection to the women but still there is need of new enactment. 2/20/2012 19 . with this discussion it is clear that this Act is constitutionally valid and therefore passed by the parliament of India. And it is the initiative by the Indian government by enacting such legislation and there is no doubt to say that this Act is constitutionally valid per se. Constitutional Challenges to the Act Several constitutional questions have risen with respect to the Domestic Violence Act especially that the legislation is genderspecific in nature and therefore arbitrary. Courts have unequivocally held that the Act is constitutional. 2/20/2012 20 . ) 425/2008. The Court rejected the second contention by saying that there is no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his ³common law´ wife or even as a 2/20/2012 21 mistress.In Aruna Parmod Shah v. violates Article 14 of the Constitution. WP (Crl. and second. . Union of India.2008) A mother-in-law sought to quash proceedings initiated against her under the Act. High Court of Delhi. was held to be constitutionally valid. (Decided on 07. is arbitrary and. the gender-specific nature of the Act. hence. the placing of ³near or like marriage´ status (relationships in the nature of marriage) at par with µmarried¶ status in Section 2(f) of the Act leads to the derogation of the rights of the legally-wedded wife. The gender-specific nature of the Act was held to be a reasonable classification in view of the object that the Act seeks to achieve and. hence.04. She challenged the constitutionality of the Domestic Violence on two grounds ± first. by excluding men. in any manner. derogate from the sanctity of marriage since an assumption can fairly be drawn that a µlive-in relationship¶ is invariably initiated and perpetuated by the male´.The court opined that. ³like treatment to both does not. 2/20/2012 22 . 04. and section 23 in particular was challenged as arbitrary and conferring unrestricted powers on the Magistrate. 12.No. v.P. Union of India and Ors. .2009) a writ petition was filed by the husband and his family members challenging constitutionality of the Act and alleging that the proceedings initiated in the lower court was a complete abuse of process of law. High Court of Madras. The main grounds of challenge were ± first.1 of 2008. 18.28521 of 2008 and M. 19. (Decided on 03. second. the Act violates Articles 14 and 21 of the Indian Constitution as the law does not permit a husband to file an application against the wife. the gender-specific nature of the Act does not make it 2/20/2012 23 unconstitutional. sections 4. WP No..Similarly in Dennison Paulraj and Ors. affecting the right to life and liberty of the husband and his relatives. 23 and 29 of the Act were challenged as providing preferential treatment to the wife and hence. It was argued that special protection provided to women is intelligible differentia and hence. this writ petition was dismissed by the court. 2/20/2012 24 . the contention that there could be no special treatment for women cannot be accepted. The court highlighted the fact that the Act was enacted as a special legislation for women in keeping with Article 15(3) of the Constitution. It was also pointed out that this provision on special measures has been widely used to enact legislations and executive orders for women and the courts have upheld their validity. The Madras High Court went on to cite several judgments of the Supreme Court where sex was held to be a sound classification under Articles 14 and 15.The Madras High Court held however that when the Constitution itself provides for making special provision for women. Hence. PROTECTION OFFICER Chapter three of the THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT. 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.´ .(1) The State Government shall. 2005 defines the powers and duties of protection officers. Section 8 states appointment of protection officer which states ³Appointment of Protection Officers. (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 2/20/2012 25 be prescribed. by notification. such number of Protection Officers in each District as it considers necessary and also to notify the area in which such Protection Officer shall exercise the powers conferred and discharge the duties imposed under the Act. be women and shall possess such qualifications and experience as may be laid down by the Central Government. by rules. as far as possible. It also provides that the Protection Officers shall. by notification in the Official Gazette.This section empowers the State Government to appoint. The terms and conditions of service of the Protection Officer and the other officers subordinate to him may also be regulated by rules. 2/20/2012 26 . which states that: Duties and functions of Protection Officers. . 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. (b) to make a domestic incident report to the Magistrate. in such form and in such manner as may be prescribed. if the aggrieved person so desires.Section 9 of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT. 2/20/2012 27 claiming relief for issuance of a protection order. 2005 states the duties and powers of a protection officer. (c) to make an application in such form and in such manner as may be prescribed to the Magistrate.(1) It shall be the duty of the Protection Officer(a) to assist the Magistrate in the discharge of his functions under this Act. (e) to maintain a list of all service providers providing legal aid or counselling. Swapnil Singh S/o Milan Kumar Singh 2/20/2012 28 . and Smt. 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. shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate. (g) to get the aggrieved person medically examined. 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. Milan Kumar Singh S/o Rajendra Singh and Rajendra Singh S/o Gulab Singh v State of U.(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. (f) to make available a safe shelter home.P. (2) The Protection Officer shall be under the control and supervision of the Magistrate. in accordance with the procedure prescribed under the Code of Criminal Procedure. 1973 (2 of 1974 ). 2/20/2012 29 . this Act. (i) to perform such other duties as may be prescribed.(h) to ensure that the order for monetary relief under section 20 is complied with and executed. or under. and shall perform the duties imposed on him by the Magistrate and the Government by. make a domestic incident report to the Magistrate. It also stipulates that the Protection Officer shall be under the control and supervision of the Magistrate and perform the duties assigned to him by the Magistrate and the Government by or under the Act. maintain a list of service providers. and perform such other duties as may be laid down by the Central Government. ensure legal aid to the aggrieved person under the Legal Services Authorities Act. make an application to the Magistrate if the aggrieved person so desires praying for issuance of a protection order. The Protection Officer may assist the Magistrate in the discharge of his functions under the Act. 2/20/2012 30 . 1987. 1973.This section lays down the duties and functions of the Protection Officers. make available a safe shelter home if the aggrieved person so requires. ensure that the order for monetary relief under section 20 of the Act is complied with and executed in accordance with the provisions of the Code of Criminal Procedure. by rules. get the aggrieved person medically examined if she has sustained bodily injuries. (2) No liability. 2/20/2012 31 . shall be incurred by any person for giving in good faith of information for the purpose of sub.section (1). or is likely to be committed.Section 4 of the act defines information to the protection officer. civil or criminal.(1) Any person who has reason to believe that an act of domestic violence has been. which states Information to Protection Officer and exclusion of liability of informant. or is being. may give information about it to the concerned Protection Officer. . 2/20/2012 32 .Section 33 deals with if protection officer fails to discharge his duties. act states: Penalty for not discharging duty by Protection Officer. he shall be punished with imprisonment of either description for a term which may extend to one year.If any Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause. This section provides that any Protection Officer who fails or refuses to discharge his duties as directed by the Magistrate in the protection order shall be punished with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both. or with fine which may extend to twenty thousand rupees. or with both. 2/20/2012 33 . which states 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. Protection officers have certain which powers with them like as mentioned in section 35 of the act Protection of action 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.Section 34 deals with the Cognizance of offence committed by Protection Officer. Abha Arora v. Although the interpretation of ³shared household´ was intended to cover a broad range of intimate housing arrangements. Angela Sharma 148 (2008) DLT506 the court held that an order under the Act restraining the respondent from alienating. disposing of or disturbing possession can be made only in respect of a shared household and even a claim for alternate accommodation can be made only against the husband and not against the in-laws. the Indian Supreme Court narrowly interpreted the scope of the definition 2/20/2012 34 . 2/20/2012 35 . The Supreme Court rejected the wife¶s argument.S. The wife. but also any household in which she has lived at any stage of the domestic relationship. applied for an injunction to prohibit her dispossession of the marital home. After some time. and removed from the scope of shared household a house owned entirely by a woman¶s in-laws. The High Court held that the wife was in possession of the matrimonial home and granted the injunction.R. The Act became effective while the case was pending in the Supreme Court. which defines shared household. Batra v. The mother-in-law and husband appealed to the Supreme Court. She argued that the plain meaning of section 2(s). and the wife argued that sections 17 and 19(1) of the Act protected her right to remain in the shared household. Taruna Batra (2007) 3 SCC 169 A husband and wife lived together on the second floor of a house owned by the husband¶s mother. who was locked out by her mother-in-law. the husband filed for divorce and moved out of the house. encompasses not only a household where the victim lives. Here. the Court vacated the injunction. the property did not belong to the husband. 2/20/2012 36 . The Court held that section 17(1) of the Act entitles the wife to claim a right to reside in the shared household only when the house is joint family property. the husband did not pay rent. thus permitting the woman¶s in-laws to evict her from the home if they so desired. and the house was not joint family property. Therefore. The language of section 2(s) expressly states: ³shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship irrespective of whether the respondent or the aggrieved person has any right. this decision strains India¶s commitment to end domestic violence by failing to consider some of the fundamental traditions underlying Indian culture. Although the Court criticized section 2(s) as being ³not very happily worded. 37 . the Act is intended to protect the right to reside in the shared household no matter who holds title to the property. title or interest in the shared household´.Criticism in This Case One of the criticisms of this opinion is that the judge disregarded the plain language of the Act. Therefore. this decision may 2/20/2012 have a debilitating effect on the protections afforded under the Act. The Court¶s insistence that it ³give [section 2(s)] an interpretation which is sensible and which does not lead to chaos in society´ does exactly the opposite. In a patriarchal society that prevents women from returning to their natal families after marriage. Adherence to the plain meaning of the section would have led to a contrary conclusion. and the result of clumsy drafting´. judicial activism may find a way to keep it alive.Shalu Bansal v. In this case. a Delhi magistrate judge took notice of the Supreme Court¶s decision in Batra but held that the woman could not be dispossessed of the marital residence without due process of law. Therefore. the husband must pay the woman rent as maintenance. it appears that even though Batra is a setback for the women¶s movement. and in the event that she was dispossessed. 2/20/2012 38 . Nitin Bansal CC 1250/1 The courts may be willing to find creative ways to circumvent the Supreme Court¶s narrow construction of the term shared household. . The Court. upholding the right of the aggrieved wife to reside under Section 17.Vandana v. held that she has a de jure right to live in the shared household because of her 2/20/2012 39 status as a wife in the domestic relationship. respectively. The respondent-husband contested the right of the aggrieved wife to reside in the shared household under Section 17 of the PWDVA because the parties had not ³lived together´ in the shared household for even a single day after their marriage. Mrs. Krishnamachari & Ors. The parties disputed even the very fact of marriage. the Madras High Court provided a broad interpretation to ³shared household´ and ³domestic relationship´ as defined under Section 2(s) and Section 2(f) of the PWDVA. 2007) 6 MLJ 205 A suit for permanent injunction filed by the wife restraining the respondents from dispossessing her. 2/20/2012 40 . in whose name it was registered. in fact. Hence. alleging dispossession from the matrimonial home. Babu Venkatesh & Ors. by his mother. v. Rani A criminal revision petition was filed by husband and family seeking reversal of an order of the lower court in an application filed by the wife under Section 23(2) of the Act. it was not a ³shared household´ for the purposes of the Act. owned not by the husband but. The Magistrate¶s Court had granted a residence order and allowed the police to break open the lock of the ³shared household´. The husband and his family contended that the house in question was.P. Dismissing this contention. had transferred the household into the name of his mother. with the intention of defeating the rights of the wife. after the matrimonial dispute arose. 2/20/2012 41 . the High Court of Madras held that the ratio laid down by the Supreme Court in S. Batra v. the Court recognised the fact that. both parties resided jointly in the said household. Taruna Batra could not be applied to the instant case as the facts clearly demonstrated that the husband. In arriving at its conclusion.R. before the wife¶s dispossession. Therefore. This also requires a great coordination and monitoring among all these stakeholders as all the actions have to be reported within the specified time . furniture and fixtures for establishing the office. district court. The implementation of the Act provides for effective coordination and correspondence between Protection Officers. legal aid and shelter. the Protection Officers are required to function from all the district Courts and needs a premises within the court. For effective implementation.Conclusion The Service Provider is entrusted with the responsibility to record domestic incident report and get aggrieved person medical aid. there is likely to be a number of cases being registered under the Act. they need to be provided with vehicles for spot visits and making reports. 2/20/2012 42 . Police aggrieved persons and her family/relatives. The Protections Officers are to be attached with the Magistrates of the courts for the area notified for each protection officer. The Service Provider should be a registered organization as per Section 10(1) of the Act. staff to assist in maintaining records and corresponding with the aggrieved person. and the number of cases likely to be registered under the Act. Accordingly. 2/20/2012 43 .Although the rules of the Act provide for appointment of Protection Officers only. it is proposed that a Chief Protection Officer may also be appointed for addressing all the requirements under the scheme for implementation of Protection of Women from Domestic Violence Act 2005. there is requirement of a monitoring authority/officer in view of the volume of work in each case. The Chief Protection Officer can function from office in Head Quarters of Department of Social Welfare.