Prakash Kamat
Panaji,April 19- With societal concerns like domestic violence having gone up during COVID-19 lockdown period and subsequently, it is desirable that people,especially women are aware about the legislative mechanisms available to them to tackle domestic violence situations in family or in surrounding areas.
Here is a old release by Press Information Bureau regarding the Protection of Women from Domestic Violence Act,2005,which could be very handy and useful for people,victims or civil society members, NGOs,etc., who would like to help persons/children,etc., in such situations.
Protection of Women from Domestic Violence Act 2005 | |
*Courtesy Lawyers Collective Women’s Rights Initiative
AGGRIEVED PERSONS
❖ Are minors entitled to reliefs under this law?
Yes, as the term 'child' is defined under the law, minors will also be within the ambit of the definition of 'domestic relationship'. Section 2 (b) of the PWDVA defines child as "any person below the age of eighteen years and includes any adopted, step or foster child".
❖ Can a minor male apply for reliefs under this law?
The mother can make an application on behalf of her minor child (whether male or female). In cases where the mother makes an application to the court for herself, the children can also be added as co-applicants for a relief under the PWDVA. The Court can also, whenever appropriate, appoint a guardian or next of friend to represent the child.
❖ What is the meaning of the expression 'relationships in the nature of marriage' used in the definition of 'domestic relationship' (Section 2(f))?
o 'Relationship in the nature of marriage' refers to those relationships where there is no marriage between the parties, in the sense of solemnization of a marriage under any law. Yet the parties represent to the world that they are a couple and there is stability and continuity in the relationship. Such a relationship is also known as a 'common law marriage'.
o Proof of such a relationship would be: the use of a common name, common ration card, same address, etc.
o It is useful to look at the South African case of Ethel Robinson Women's Legal Centre Trust versus Richard Gordon Volkas etc, (Case no 7178/03, in the High Court of South Africa, Cape Province Division), in which the following factors were considered in arriving at a conclusion on whether or not a relationship can be deemed to be a relationship in the nature of marriage between the parties : ▪ The commitment of the parties to the shared household.
▪ The existence of a significant period of cohabitation.
▪ The existence of financial and other dependency between the parties including significant mutual financial arrangements vis-à-vis the household.
▪ The existence of children of the relationship
▪ The role of the partners in maintaining the household and in the care of the children. ▪ Indian cases on relationships on relationships in the nature or marriage -
▪ Badri Prasad AIR 1978 SC 1557 The Supreme Court held that a strong presumption arises in the favor of wedlock where the partners have lived together for a long spell as husband and wife.
▪ Sumitra Devi (1985) 1 SCC 637. The Supreme Court held that relevant facts such as how long have the parties been living together, does society recognize them as husband and wife, etc need to be looked into to determine whether the relationship is in the nature of marriage.
o Accordingly, the following categories of women are intended to be covered under 'relationship in the nature of marriage:
▪ Women, whose marriages are void or voidable under the law, as apart from the legal invalidity of the marriage, the relationship satisfies all other criterion.
▪ Women who are living in a shared household in a conjugal relationship without contracting marriage.
▪ Common law marriages- when a couple has been cohabiting for a number of years and have held themselves out to the world as being husband and wife.
❖ Does the use of this term bring 'relationships in the nature of marriage' at par with marriages?
The law simply provides protection from violence to all women whether they are sisters, mothers, wives or partners living together in a shared household. To the extent of providing protection, the law does not differentiate between married and unmarried women. The law, however, does not state anywhere that an invalid marriage is valid. It provides protection from violence, the right toreside in the shared household, temporary custody of children, etc. However, for succession to the property of a male partner or in deciding the legitimacy of children, the general law of the land or the personal laws of the parties will have to be relied upon.
RESPONDENTS
❖ Who can a woman complain against?
A woman can file a complaint against any adult male perpetrator [Section 2 (q)] of an act of violence. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband/ male partner who have perpetrated the violence.
The proviso to Section 2 (q) was included in the PWDVA as, under Section 498A of the IPC, it is possible to prosecute the relatives of the husband for cruelty, whether male or female, example, mother-in-law, father-in-law, sister-in-law, etc.
❖ Who fall within the definition of 'relatives' under section 2 (q)?
The word 'relative' has not been defined in the PWDVA. Hence the ordinary meaning will have to be assigned. Therefore, examples of relatives would be the father, mother, sister, uncle; brother of the respondent who may be included in the word 'relative' in Section 2(q). Section 498A also uses the term 'relative' which is not defined. Hence the ordinary meaning of the word 'relative' will include female relatives.
❖ Can a complaint be filed by a wife against the husband's female relatives, for example, mother-in-law, sister-in-law?
Yes, orders can be passed against the female relatives of the husband. However, relief of dispossession against a female relative cannot be granted according to the proviso to Section 19(1) which states that no order under Section 19(1) (b) directing the respondent to remove himself from the shared household can be passed against any person who is a woman.
The aggrieved woman may obtain a protection order against the female relatives of the husband or the male partners. Maintenance (under orders for monetary reliefs) can only be obtained by those persons falling within the ambit of Section 125 CrPC.
❖ Can a mother-in-law file an application for reliefs against the daughter in law? No, a mother-in-law cannot file an application against her daughter-in-law (Section 2 (q)). However in cases where a mother-in-law is facing violence at the hands of her son and daughter-in-law she can file an application against her son and daughter-in-law as abetting the acts of violence perpetrated by the son. She, however, cannot ask for removal of the daughter-in-law from the shared household.
DOMESTIC INCIDENT REPORT
❖ What is a "Domestic Incident Report" ("DIR")?
The format of a DIR is provided in Form I of the PWDVR. It is to be used for recording complaints of domestic violence brought by an aggrieved woman to the Protection Officer or the Service Provider. It is a record of the fact that an incident (s) of violence has been reported, in that it is similar to an NCR (report of a non-cognizable offence). It has to be signed by the Protection Officer or registered Service Provider who fills it in. It is a public document.
❖ How is a DIR to be recorded?
A DIR is meant to be a faithful record of what the woman says. This means that all complaints must be recorded in a non-biased manner as long as the act complained of falls within the purview of the PWDVA.
If a woman is not able to narrate her story then the Protection Officer may call her on separate occasions to fill in the DIR. The Protection Officer can maintain a daily diary to enter details of each of the woman's visit.
❖ What is to be done once a DIR has been recorded?
The DIR is to be forwarded to the Magistrate by the Protection Officer. A copy of the DIR is to be forwarded to the police officer in charge of the police station in the jurisdiction.
The Service Provider on recording the DIR may forward it to the Protection Officer and the Magistrate, if the woman so desires.
If the woman so desires, the Protection Officer or a Service Provider can assist a woman to file an application for reliefs after recording a DIR and if the woman so desires. The DIR must be annexed to the application filed in Court in such cases.
❖ What should a Magistrate on the receipt of a DIR?
A magistrate should preserve it for the purposes of maintaining a record. It may be referred to in cases where an application is filed directly by the aggrieved woman. It may also be used in cases where an application is filed by with the assistance of a Protection Officer along with a DIR at a later stage.
❖ Can a DIR be filled in by the aggrieved woman or her lawyer?
No, a DIR can only be filled in by the Protection Officer or a registered Service Provider as Form I requires the signature of either one of them. Further, as a DIR is a public document, it can only be filled in by a Public Servant. Section 30 deems all Protection Officers and members of Service Providers as public servants while discharging their functions under the PWDVA.
❖ Can an aggrieved woman file an application without a DIR?
Yes, an aggrieved woman can file an application for reliefs without filing a DIR.
❖ In cases where women directly file applications for relief, should the Magistrate call for a DIR once the case is filed?
There is no need for a DIR at the stage when an application is filed in court as stage for the DIR is past and its purpose (i.e. recording the history of violence) does not exist. Once an application is filed in court, a Magistrate may order the Protection Officer to conduct a home visit or any other report under Rule 10 (1) if the circumstances so require.
❖ Can a Protection Officer conduct a home visit when recording a DIR?
No, a Protection Officer cannot conduct a home visit without a court order.(eom)  |
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