DOMESTIC VIOLENCE

The Protection of Women from Domestic Violence Act, 2005 is the relevant legislation in India which addresses domestic violence specifically. Further section 498-A of the Indian Penal Code, 1860, which addresses cruelty, governs incidents of domestic violence.

Domestic violence is abuse that a woman may be subjected to in a shared household. The abuse can be subjected by the family and it can be in the form of physical, psychological, verbal, emotional, sexual or monetary abuse.

A domestic violence complaint is normally filed against “family” i.e. people the victim has a domestic relationship with. The victim can be related to her abuser(s) by blood (like parents or siblings), by marriage (like husband, in-laws), or  her partner (live-in relationship), or by living together i.e. with the extended family. The abuser(s) can be either male or female.  

Procedure for filing a domestic violence complaint
The victim or anyone on behalf of the victim can file the complaint. A victim of domestic violence can approach either of the options listed below for filing the complaint.

1. Police Station- The police will register a First Information Report (FIR) or Domestic Incident Report (DIR) or will direct the victim to a Protection Officer incharge in the area.
2. Protection Officer- A Protection Officer is the first point of contact for domestic violence cases in a district. A Protection Officer will help the victim file a DIR and file a case in court.
3. National Commission for Women (NCW) -NCW is empowered to investigate complaints related to domestic violence, dowry harassment or sexual assault. NCW will help monitor and expedite investigations led by local police, provide the option of counselling/ mediation, where the dispute can be resolved without having to go to court, and constitute an Inquiry Committee which makes spot enquiries, examines witnesses, collects evidence and submits a report to NCW with recommendations regarding the complaint. The NCW also has an online portal  where a victim can file a domestic violence complaint.

Domestic Incident Report
A Domestic Incident Report (DIR) is a report made on receiving a domestic violence complaint. The report can be made by a Protection Officer or a service provider (NGOs that work with women). It contains:

1. Victim’s name;
2. Age;
3. Details of abuser(s);
4. Details of the incident(s) of violence that happened, etc.

Court Procedure
An application will be required to be filed by the victim, with assistance of a lawyer before the Magistrate, in which the victim will have to state the type of reliefs she seeks from the court. It may include protection orders, residence orders, directions for monetary relief, a grant of compensation or damages and interim orders. A victim may engage a lawyer,  seek help from her Protection Officer, or ask an NGO to help her secure legal aid. 

The police officer, Protection Officer, service provider or  Magistrate who has received this complaint shall inform the victim about all the reliefs she can avail and her rights under the law. 

At the time of filing the complaint, the victim will need to disclose any previous or pending cases that may have been filed  between the parties under the Indian Penal Code, Criminal Procedure Code, Hindu Marriage Act, and Hindu Adoptions and Maintenance Act. The victim will further be required to disclose if any application for maintenance has been filed and if any interim maintenance has been awarded to the victim thereunder. 

The Magistrate shall fix the first date of hearing, within three days from the date of receipt of the application by the court.

A victim is entitled to a protection order from the abuser , a custody order (of her children), monetary relief, her right to secure housing, and access to medical facilities. The victim can seek immediate protection from the abuser(s) and the court can make such orders at the preliminary stage of hearing. The Magistrate will grant protection for a temporary but fixed duration until it feels that the order is not required due to change in circumstances.  The Magistrate may, depending on the situation, pass orders for shelter, residence, interim custody and monetary relief. It may also pass restraining orders to protect the victim from the abuser(s). 

As per the Act, all complaints are to be heard and disposed of in 60 days. If any party is aggrieved by the order passed by the Magistrate, then it can file an appeal against the said order. 

Types of reliefs granted by court
Typically the kind of protection orders a Magistrate can pass includes:

1. Prohibiting acts of domestic violence by directing the abuser to stop repeating any of the acts that have been detailed in the application;
2. Prohibiting the abuser(s) from entering the school/college or workplace of the victim.
3. Prohibiting the abuser(s) from stopping the victim from going  to her office.
4. Prohibiting the abuser(s) from entering the school, college or any place that the victim’s children go.
5. Prohibiting the abuser(s) from stopping the victim from attending school or college.
6. Prohibiting the abuser(s) from any form of communication with the victim.
7. Prohibiting the abuser(s) from alienating the victim’s assets.
8. Prohibiting the abuser(s) from operating the joint bank lockers/ accounts and allowing the victim to operate the same.
9. Directing the abuser(s) to stay away from the dependents/ relatives/ any other person of the victim to prohibit violence against them.

The victim can also seek immediate protection from the abuser(s). The Magistrate will grant protection for a temporary but fixed duration until it feels that the order is not required due to change in circumstances.

Frequently Asked Questions

Who is a Protection Officer?
Protection Officers are an important link between the victims of domestic violence and the system, i.e. the police, the lawyers and the courts. Their primary role is to help victims through the process of filing the complaint, connecting with lawyers and filing the case in court. If need be, they also help the victims access a medical examination in a hospital. Protection Officers are appointed by the State Government in each district. Mostly, Protection Officers are supposed to be women.

What type of residence orders can the victim obtain from the court?
The court orders normally restrain the abuser(s) from:

1. Dispossessing or removing the victim from the shared household.
2. Entering the portion of the shared household in which the victim resides.
3. Alienating/ disposing/ restricting use of  the shared household.
4. Renouncing their  rights in the shared household.

The court may also pass orders: 

1. entitling the victim continued access to her personal belongings; and/ or
2. directing the abuser(s) to – either remove  themselves from the shared household or secure the same level of alternate accommodation or pay rent for the same.

What are the types of monetary relief that a victim can claim?
Monetary reliefs can be claimed as on actuals or lump sum figures for the losses sustained in the past or  to meet future expenses. Monetary reliefs can be granted for any mental injury sustained by the victim as well. Monetary reliefs that can be claimed can be classified as:

1. Loss of earnings
2. Medical expenses
3. Loss due to destruction/ damage or removal of property from the control of the aggrieved person
4. Any other loss or physical or mental injury
5. Directions can be passed to the abuser(s) to pay for expenses relating to- food, clothes, medications and other basic necessities; school fees and related expenses; household expenses etc. The computation for the same may be done on a monthly basis.

Application for maintenance can be made under domestic violence act even if an application under Section 125 of Criminal Procedure Code, 1973 has been made or an order granting maintenance has been passed in that proceeding.

Will the abuser(s) get immediately arrested on filing a complaint?
It is unlikely that the abuser(s) will be arrested instantly on the filing of a complaint. The Supreme Court came out with guidelines for arrests in domestic violence cases to prevent any misuse of the law. An immediate arrest can be made in cases where the victim has suffered grave injuries.

What is financial or economic abuse?
Financial or economic abuse is when the abuser(s) limits the victim’s financial independence. It can be when:

1. the abuser(s) controls your money.
2. the abuser(s) deprives you of money or does not give you enough money.
3. the abuser(s) prevents you from taking up a job.
4. the abuser(s) has taken away your gold or other valuable gifts received prior to or during your marriage.
   

I am being removed from  my shared household. What can I do?
If you do not feel safe living with your abuser(s) in the same household, you can ask the court for a residence order. A residence order can:

1. stop your abuser(s) from removing you from the house;
2. ask the abuser(s) to leave the house and not enter until further orders.
3. ask the abuser(s) to provide you with alternative accommodation.

Such orders may be passed by the court even if you or the abuser(s) don’t have any right, share or title to the shared household.

I live with my partner. I fear I am being subjected to physical and sexual abuse. Can I file a domestic violence complaint?
If you are living with your partner under the same roof, it is said to be a shared household. Even though you and your partner are unmarried, it is considered to be a domestic relationship.  You have the legal right to file a domestic violence complaint against your partner. However, the court must be satisfied that your relationship is in the “nature of marriage” as live-in relationships are not regulated by law. The conditions are:

1. duration of the relationship;
2. socialization in public;
3. domestic arrangements;
4. age and marital status;
5. sexual relationship;
6. pooling of resources and financial arrangements;
7. intention and conduct of parties; and/or
8. children

Can a complaint be filed in an area where the victim does not live?
Yes, a complaint can be filed in any area regardless of the place of the incident(s). It is known as a Zero FIR. Zero FIR means an FIR can be filed with the serial number “zero” even if the police station does not have the jurisdiction and it can be later transferred to the police station located in the area where the incident(s) took place. The investigation will be conducted by the jurisdictional police station only. This has been done to reduce the time taken to file the FIR.

For instance: If your husband forces you to leave your house in Jaipur and you are now with your parents in Delhi, you can file the FIR in Delhi. However, the investigation will be carried out by the police in Jaipur.

How can I engage a lawyer?
Public Prosecutors and/or private lawyers can take up cases of domestic violence, and help in filing the application before the Magistrate and getting the protection order or monetary relief. For a list of organizations and law services, refer to the database.

How do I know if I am facing domestic violence?
If you feel that your partner or members of the family with whom you live in the same house are being violent, intimidating or abusive, then these are signs of domestic violence. 

Instances of domestic violence could begin with the victim being criticized, facing verbal abuse, etc. The victim may be subjected to physical violence which may include acts of pulling, grabbing, pushing, slapping, etc. Your partner may try to control you and your actions, bully you, physically harm you, or control your finances. You may feel emotionally fragile, a loss of confidence, low self-esteem and/or blame yourself. 

Often after the incident, the abuser(s) apologizes for the "mistake" and then continues behaving in the same manner.

What should I do if I am facing domestic violence?
If you are a victim of domestic violence, you might be afraid or choose not to  speak up and or report. You may fear that reporting may add to the situation or even cause harm to your children. Here are ways you can seek support:

1. NGOs in and around your area can provide support such as shelter or counselling. If you choose to report, the NGO can also guide you through the legal options available. Here is a list of NGOs you can seek help from. 
2. Report the incident(s) of domestic violence to the police station or on the NCW website. If you cannot go to the police station, dial 100 or the NCW helpline (011 2694 4805). During the lockdown imposed by the Government of India, NCW has also notified a Whatsapp number (+91 7217735372)  to report. You may also check our helpline section for numbers. 
3. Approach the Protection Officer in your area who will guide you through the legal process, and access medical help and shelter options. 

References

---

6. Section 3, Protection of Women from Domestic Violence Act, 2005

Filing a Complaint against Domestic Violence, https://nyaaya.org/family/filing-a-complaint-against-domestic-violence/

Filing a Complaint against Domestic Violence, https://nyaaya.org/family/filing-a-complaint-against-domestic-violence/, Complaint and Investigation Cell, http://ncw.nic.in/ncw-cells/complaint-investigation-cell

Section 12, PWDVA, 2005

Mobilizing for Action on Violence Against Women: A Hand book for ASHA, https://nhm.gov.in/images/pdf/communitisation/asha/ASHA_Handbook-Mobilizing_for_Action_on_Violence_against_Women_English.pdf

Section 12(4), PWDVA, 2005

Section 25, PWDVA, 2005

Immediate Protection for Domestic Violence, https://nyaaya.org/family/immediate-protection-for-domestic-violence/

Immediate Protection for Domestic Violence, https://nyaaya.org/family/immediate-protection-for-domestic-violence/, Section 25, Prevention of Women from Domestic Violence Act, 2005

 Role of Protection Officer, https://nyaaya.org/family/role-of-a-protection-officer/

Section 20, PWDVA, 2005

Staying in the House/Residence Order for Domestic Violence, https://nyaaya.org/family/staying-in-the-house-residence-order-for-domestic-violence/

Staying in the House/Residence Order for Domestic Violence, https://nyaaya.org/family/staying-in-the-house-residence-order-for-domestic-violence/

Indra Sarma v. V.K.V. Sarma, MANU/SC/1230/2013

Section 28 of The Protection of Women From Domestic Violence Act, 2005