domestic violence

Law

Good To Know : How To Report Domestic Violence Via PWDV Act 2005?

Pavan Manikanta Kumar

August 23rd, 2016

SHARES

Relationships are a necessary part of healthy living being. It is said that when two people develop a connection based on mutual respect, trust, and support, it is a sign of healthy relationship.However, the same relationships can cause discomfort, and sometimes even cause harm when not being taken care of. We simply call it domestic violence that includes: physical violence, financial violence, sexual violence, and emotional abuse.

Domestic Violence not only violates the human right but also violates one in terms of economic, health, mental and social perspective. In a patriarchal setup, domestic violence is often downplayed and internalised as “Natural” and shushed about. The Protection of Women from Domestic Violence Act 2005 (PWDVA) addresses these unspoken and usually unmentioned issues. Passed by the Parliament in August 2005, the act came into force on October 26, 2006. PWDVA provides a legal recourse to women (wives and live in partners) facing domestic violence be it physical, mental, sexual, emotional or economical.

The Act calls for the appointment of Protection Officers, Service Providers, Medical Facility In-charge, and Shelter Homes. The offender if guilty is liable to a fine of Rs. 20,000/- and a jail sentence up to one year. Aggrieved women may file a FIR (First Information Report) in the nearest police station or file a DIR (Domestic Incidence Report) under the PWDV Act apart from under 498A of IPC. Magistrates may also be approached directly to file a DIR. Immediate monetary relief is to be provided to the victim by the government. Violation or non-compliance with the order of the court is a criminal offense under the PWDVA 2005. In such cases, the woman can complain to the magistrate or the police or the appointed Protection Officer. The abuser can be arrested following such a complaint, and necessary action would be taken against him.

ANYONE CAN BE A VICTIM! Victims can be of any age, sex, race, culture, religion, education, employment or marital status. Both men and women can be abused, but the majority of the victims are women. Unfortunately, there are no laws in India to protect men from domestic violence.

Children living in homes where there is domestic violence are more likely to be abused and/or neglected ,which becomes a threat to the development of the children. Even though the child is not physically harmed, they may have emotional and behavior problems.

If you are being abused, REMEMBER:

  • You are not alone
  • It is not your fault
  • Help is available

Also Read : What To Do If You Are A Victim Of Domestic Violence ?

PART 1

Protection Of Women From Domestic Violence Act 2005 (PWDVA).

Method 1 :

Women in India are protected from domestic violence under Protection of Women from Domestic Violence Act 2005 (PWDVA).This is a civil law. With this act, the victim can get legal remedies pertain to civil reliefs such as injunctions, compensation, and monetary relief. There can be no arrests made on a complaint filed under this law. This is a civil law aimed at providing immediate support to women facing domestic violence.

It is different from criminal law, which is directed at providing punishment to perpetrators of violence (those who commit violence) through imprisonment or fines. The advantage of a civil law is that it is victim-oriented and the woman is not dependent on the police to initiate action.
1What does the domestic victim gets under PWDVA -2005?


i.  Protection Order [Section 18]- This can also be termed as a “stop violence” order. Through this order, the court can direct the other party to immediately stop the acts of violence. The following incidents can also be prevented through the “Protection Orders”:

  • Prohibiting the perpetrator from entering the woman’s place of employment and causing harassment.
  • Prohibiting any communication with the woman from the perpetrator.
  • Prohibiting any violence being caused to a person related to the woman.
  • Prohibiting sale/transfer of property/use of bank accounts/locker by the perpetrator to the woman’s detriment.

ii.  Residence Order [Section 19]- A residence order may be passed by the court in cases where the woman apprehends being thrown out of the house  (shared household) or in cases where she has been thrown out and wants to return to her house.

  • The aim of this order is to ensure that women have a shelter that is safe. In cases where a woman does not feel safe living with the male perpetrator of violence, she can apply for an order seeking his removal from the shared household. or
  • else the court can direct the perpetrator to provide alternate accommodation for the woman.
  • No orders for removal from a shared household can be obtained against female relatives under the PWDVA.

iii.  Monetary relief [Section 20] – This order can be sought to meet any expenses the woman may have incurred as a result of the violence faced.

  • This may include payment of medical bills, any loss of belongings, etc.
  • Married women or women living in the nature of marriages can also claim maintenance from the husband/ male partner.
  • The amount claimed under this provision is to take care of actual expenditure incurred by the woman.

iv.  Compensation order [Section 22] – A compensation order can be asked for by the woman for injuries (mental and physical) sustained. This is over and above the actual expenditure that can be obtained by a monetary order explained above.


v.  Custody order [Section 21] – A woman can also ask for temporary custody orders for her children.

  • This is to prevent the woman from being separated from her children, which itself is a form of emotional abuse and blackmail.
  • This order is temporary in nature and does not affect rights under existing laws on custody and guardianship.

vi.  Interim / Ex parte order [Section 23] – An interim order can be given by the court at the time the proceedings are initiated under the PWDVA and before a final order is passed.

  • This is to ensure that women are not detrimentally affected during the course of the legal proceedings.
  • In order to get interim orders, a woman has to show that she has or she is facing violence or fears violence.
  • An ex parte order means an order that is passed in the absence of the other party to the dispute. Such orders are interim in nature and passed only if there is an immediate danger to the person making the application or when the other party refuses to appear in court despite prior intimation given by the court.

E.g. Sonakshi has filed an application in court for a “stop violence” order against her brother, Amit who has been beating her. The threat to her life and safety is so severe that she needs an immediate order. The court can then pass an ex parte “stop violence” order against him even without hearing him. The order will be served on him along with the application. He will , of course, have the right to be then heard and ask for the order to be vacated (i.e. direction by the court to bring the order to an end).


2Who can help the woman in getting the reliefs under the Act?

i.  Protection Officer (PO) is an outreach officer of the court, who can help a woman in making
complaints, filing an application before the Magistrate for orders, helping her in getting support like medical aid, counseling etc., and making sure that the orders passed by the court are enforced [Section 9 & Rule 8, 10].
E.g. if a woman has been beaten up by her husband and needs to go to a hospital, she can approach the PO to arrange for transportation to the hospital and make sure that she gets proper treatment.


ii.  Service Provider is an NGO or other voluntary association registered with state governments. They provide assistance and support to the woman facing domestic violence.

  • A woman can go to a registered SP for making a complaint under the Act.
  • An SP will assist her by providing legal aid, medical care, counseling or any other support [Section 10].
  • Though there will be other unregistered NGOs providing support services to women, but the major difference between the unregistered SPs and registered SPs under the law is that complaints can be lodged only with the registered SPs.
    E.g. if a woman has been thrown out of her house and needs shelter, then along with lodging a complaint, the SP will also take her to a shelter home where she can stay temporarily.
PART 2

Procedures involved under the PWDVA(2005) to file a complaint:

Step 1: Information [Section 4].

  •  A woman or any person on her behalf can give information of domestic violence to the PO or to the Police.

Step 2: Complaint [Section 5, Rule 5 & Form I].

  • A woman can lodge a complaint of domestic violence with the Protection Officer, the Service Provider, the Police or directly with the Magistrate.
  • This complaint is made in the form of a Domestic Incident Report. (If a woman wants to file a complaint under criminal law, she has to lodge an FIR. But since this Act is a civil law, she must file her complaint as a Domestic Incident Report).
  • A Domestic Incident Report (DIR) is the official format in which the complaint will be registered. This is an extremely simple format, which is available in Form I in the Rules of the Act.
  • Click here for the here for Form1
  • A woman can get this Form I from police stations, POs or SPs and fill it herself
  • If the woman cannot fill the Form herself, the PO, SP or Police will convert her complaint into this Form I as a DIR and explain the contents to her. The PO, SP or Police will then send the complaint (DIR) to the Magistrate/

Step 3: Application [Section 12]

An application for reliefs under PWDVA to the Magistrate can be made by the woman herself, directly to the court or

  • The PO on behalf of the woman, if she consents or
  • Any person on behalf of the woman, if she consents.
  • An application asking for reliefs (orders passed by the court) can also be filed in existing legal proceedings i.e. divorce cases, maintenance cases etc.

E.g. If there is a pending divorce case between a woman and her husband and she has been facing violence from him, she can ask for a Protection Order in the divorce proceeding itself.


Step 4 : Proceedings in court.

After the filing of the application for reliefs before the court, the following can take place.The Court shall then fix the next date of hearing in the case for three days after the application has been filed [S. 12(4)].

  • In case the woman is facing grave danger, the court can pass an ex parte interim order in her favor and then fix the next date of hearing.
  • The other party shall get notice of the proceedings within 3 days and asked to attend court [S. 13].
  • In case, the other party does not appear before the court on the date mentioned, the court can pass an ex parte order in favor of the woman [S. 23(2)].
  • The court can also pass an interim order in favor of the woman [S. 23(1)].
  • The other party shall be directed to respond to the woman’s application in writing, i.e. by filing a “written statement”. After the filing of the written statement, the parties shall be directed to present evidence and argue their case in court.
  • At any stage of proceedings before the court, the court can direct counseling of either/both parties [S. 14].
  • The court can at any stage take the assistance of family welfare experts [S. 15].
  • The objective of the counseling is to prevent any further acts of violence from being committed[R. 14(4)].
  • A settlement can also be attempted at by the counselor, only if the woman requests for the same [R.14 (7)].
  • If a case of domestic violence is proved, the court can pass an order providing the woman with the relief she had asked for in the application. The entire court proceedings should be completed within 60 days of filing the application [S.12 (5)].

Step 5: Passing of order.

Within 60 days of the filing of the application, the court can pass the orders asked for by the woman.

  • In case the court thinks that there is the need for any other kind of direction to make sure that the violence is stopped, it can also give such kind of direction in addition to the orders that she had asked for in the  application.

Step 6: Discharge/ Alteration/ Modification of order.

  • The order passed by the court will continue to be in force till the woman herself files another application asking the court to discharge the order, as explained above.

E.g. Asma has successfully got a Custody Order from the court for temporary custody of her son. But in the meantime, there was also pending litigation for permanent custody under guardianship law. The court, in that case, has given her permanent custody of her son. She can now go to court and ask for the discharge of the temporary custody order under the act.


Step 7-:Appeal [S. 29]

  • Either party can appeal against the order passed by the court to a higher court within 30 days from the date on which they received official information of the order.

Step 8:Violation of Order of Court [S. 31]

  •  If the order passed by the court is violated by the other party, a woman can report to the PO and then file a complaint with the court.
  • The violator can be immediately arrested, as it is a criminal offense.
  •  The only provision for arrest under this law is  where the other party has violated the court order, and the violator is then and only then arrested.

For the list of Protection Officers, Counsellings Centers, and Shelters in various states:Click here.

PART 3

Alternative Ways To Complain Against Domestic Violence.

Method 2: Police Complaint.
Under the Act, a woman can also file criminal complaints under criminal law (Section 498A of the Indian Penal Code) seeking the arrest of the perpetrator of violence, under the circumstances mentioned therein [Section 5(e)]. The decision of whether to go under the new law or S. 498A IPC is that of the woman and depends on her goals.


Method 3: National Commission For Women(NCW).


Resources :


Disclaimer:* This information is subject to periodic government policy / process change. Kindly contact the concerned department to cross check for recent updates, if any.

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