PROTECTION OF WOMEN FROM DOMESTIC

VIOLENCE ACT, 2005

There had been a significant lacuna in the legal system to accommodate for cases of everyday
domestic violence in the lives of women, something that has been restricted to the private
domain. But the Protection of Women from Domestic Violence Act, 2005, now seeks to
eliminate this lacuna and eradicate the evil of domestic violence. This Act was enacted by
keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide
for a remedy under the civil law, which is intended to protect the woman from being victims of
domestic violence and to prevent the occurrence of domestic violence in the society. The Act
certainly provides for shielding women from any sort of domestic violence in a relationship.

The definition of violence has evolved over the years to an extent that it not only includes
physical forms of violence but also emotional, mental, financial, and other forms of cruelty. The
Act has specified a comprehensive definition of domestic violence u/s 3 as any act which harm
or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or
tends to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional
abuse, and economic abuse, perpetrated by any person who is or was in a domestic relationship
with the victim.

Though the Indian Penal Code had provisions, namely sections 304B and 498A, but they weren't
adequate and satisfactory in checking the atrocities committed against women. Thus, a desperate
need was felt for an Act which could specifically cater to this cause and help women attain a
dignified status, and henceforth this Act was enacted.

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005: MEANING,

INTENT, AND OBJECTIVE

To minimize the cumbersome position of law, be it procedural or substantive the Protection of

Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of
domestic violence. The legislative intent was further emphasized by the Supreme Court of India
in the case of of Indra Sarma v.  V.K.V. Sarma1, wherein it was stated that the DV Act is

1
(2013) 15 SCC 755.

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enacted to provide a remedy in civil law for the protection of women, from being victims of such
relationship, and to prevent the occurrence of domestic violence in the society.

The objective of the Act lays down “An Act to provide for more effective protection of the
rights of women guaranteed under the Constitution who are victims of violence of any kind
occurring within the family and for matters connected therewith or incidental thereto.” The
Madras High Court in Vandhana v. T. Srikanth2, in one of the early cases since the enactment
of the DV Act, observed that the Act was formulated to implement Recommendation No. 12 of
United Nations Committee on Convention on Elimination of All Forms of Discrimination
Against Women (CEDAW), 1989, which was ratified by India in June, 1993.

The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai3, reiterated that
the object of the DV Act is to grant statutory protection to victims of violence in the domestic
sector who had no proprietary rights. The Act provides for security and protection of a wife
irrespective of her proprietary rights in her residence.

PROVISIONS UNDER THE PROTECTION OF WOMEN FROM DOMESTIC

VIOLENCE ACT, 2005.

This act contains five chapters and 37 sections. Its main features are firstly that the term
'domestic violence' has been made wide enough to encompass every possibility as it covers all
forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause injury to,
endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved
person. Secondly, the definition of an 'aggrieved' person' is equally wide and covers not just the
wife but a woman who is the sexual partner of the male irrespective of whether she is his legal
wife or not. The daughter, mother, sister, child (male or female), widowed relative, in fact, any
woman residing in the household who is related in some way to the respondent, is also covered
by the Act. The respondent under the definition given in the Act is "any male, adult person who
is, or has been, in a domestic relationship with the aggrieved person" but so that his mother,
sister and other relatives do not go scot free, the case can also be filed against relatives of the
husband or male partner.

2
(2007) 6 MLJ 205: 2007 SCC Online Mad 553.
3
(2011) 3 Mah LJ 849: 2011 SCC Online Bom 412.

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  Aggrieved Person

The term “aggrieved person” is defined u/s 2(a) of the Act as “any woman who is, or has been,
in a domestic relationship with the respondent and who alleges to have been subjected to any act
of domestic violence by the respondent.”

Therefore, any woman who is or has been in a domestic relationship is entitled to make a
complaint invoking provisions of the Act. In, M. Palani v. Meenakshi,4the Honourable court
held that the amount or period of time lived together by the petitioner and respondent is not
necessary in terms of that the petitioner and respondent should live or have lived together for a
particular period of time.

The Supreme Court in Krishna Bhattacharjee v. Sarathi Choudhury,5 observed that judicial

separation does not change the status of the wife as an “aggrieved person” under Section 2(a)
read with Section 12 and does not end the “domestic relationship” under Section 2(f). It stated
that judicial separation is mere suspension of husband-wife relationship and not a complete
severance of relationship as happens in divorce.

 Domestic Relationship

The term “domestic relationship” is defined u/s 2(f) of the Act.

The Supreme Court in Indra Sarmav v. K.V. Sarma6 held that the definition of “domestic
relationship” under the DV Act is exhaustive. It further stated that the word domestic
relationship means a relationship that has some inherent or essential characteristics of marriage
though not a marriage that is legally recognized.

 Shared Household

Under Section 2(s) of DV Act 2005, a shared household is where the aggrieved person or a
woman lives in a domestic relationship, either singly, or along with the man against whom the
complaint is filed. It may also imply a household where a woman has lived in a domestic
relationship but has been thrown out. This may include all kinds of situations whether the

4
2008(3) KHC 320: 2008 SCC Online Mad 150.
5
(2016) 2 SCC 705.
6
(2013) 15 SCC 755.

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household is owned by the respondent or it is rented accommodation. It also includes a house
either owned jointly by the aggrieved person and the respondent or both may have jointly or
singly, any rights, titles or interests.

The DV Act recognizes a woman’s right to reside in a shared household. This means a woman
cannot be thrown out of such a household except through the procedure established by the law.
In case she is thrown out she can be brought back again after obtaining the order from the court.

In the case of Vandhana v. T. Srikanth7, it was held that a woman to claim the protection of
right in “shared household” has to establish (a) that the relationship with the opposite party is
“domestic relationship”, and (b) that the house in respect of which she seeks to enforce the right
is “shared household”. It further stated that the correct interpretation of aforesaid definition
including the right to live in “shared household” would be that words “live” or “have at any point
of time lived” would include within its purview “the right to live”.

 Domestic Violence

The term “domestic violence” has been defined u/s 3 of the Act, as any act which harm or
endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends
to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional abuse, and
economic abuse, perpetrated by any person who is or was in a domestic relationship with the
victim.

The Section also defines the meaning of terms physical abuse, sexual abuse, verbal and
emotional abuse, and economic abuse. It further enunciates that the overall facts and
circumstances of the case shall be taken into consideration in order to determine whether any act,
omission, commission or conduct of the respondent constitutes “domestic violence” under the
said section.

 Filing Complaint of Domestic Violence

An aggrieved woman, in order to file a complaint for domestic violence may:

1. Approach the police station and register the complaint, or

7
(2007) 6 MLJ 205: 2007 SCC Online Mad 553.

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 2. File a complaint to a Protection Officer or Service Provider, or

3. Directly approach the Magistrate.

The Supreme Court in Santosh Bakshi v. State of Punjab8emphasised that the Police has to look
into the complaint made under the DV Act seriously and it cannot submit a report that no case is
made out without proper verification, investigation, enquiry not only from members of family
but also from neighbours, friends and others.

 Other Provisions

The Act establishes adequate machinery to ensure effective protection. The Act creates an
extraordinary post of a Protection officer who is charged with the responsibility of taking
expeditious steps for providing timely relief and it also grants authority to the Magistrate to give
sufficient relief in the form of maintenance orders, custody orders and compensation. The Act
also creates a novel agency called the service providers' who are entrusted with the job of filing
Domestic Incident Reports with the Magistrate. The act by itself does not punish the perpetrator
of domestic violence. But if a case discloses any offences punishable under IPC, CRPC or
Dowry prohibition Act, the Magistrate may then, frame appropriate charges to either try the case
himself or he may commit it to Sessions Court if he may deem fit.

The Act almost gives a legal sanction to any relationship, which is not at all socially acceptable
like the live-in relationship. In addition to this the respondent is totally deprived of his legitimate
rights over his property as he cannot alienate or dispose if an order is passed under the Act. On
the contrary there is an added liability on his part to arrange for an alternate accommodation or
pay the rent for the same.

LACUNAS IN THE ACT

This law was enacted by keeping in view the rights guaranteed under Articles 14, 15 and 21 of
the Constitution to provide for a remedy under the civil law, which is intended to protect the
woman from being victims of domestic violence and to prevent the occurrence of domestic
violence in the society. But this Act on the contrary, has provided for an elaborate mechanism for
abuse by women and has certainly become a glaring example of inequality. The likelihood of it
8
(2014) 13 SCC 25.

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being misused is so immensely incalculable that it has given wakeful nights to men and has left
his fate to the whims and fancies of their counterparts.

Further, the Act falls short in providing any relief to the male members in the community who
are subjected to domestic violence, being one of the areas where the law falls short.

This Act should have ideally included stringent penal provisions for curtailing the instances of
abuse and mishandling, but herein, instead various opportunities have been made available which
can ultimately lead to its grave misuse and can thus act as a catalyst for breaking homes. Thus,
this Act does not contain any provisions for creating awareness or for strengthening and
preserving family as an institution or even providing chances for reconciliation or even scope for
improvement to the husband.

RECOMMENDATIONS

1. It is recommended that states should initiate evaluations of their current reporting laws
addressing family violence to examine whether and how early case detection leads to
improved outcomes for the victims or families and promote changes based on sound
research.
2. Courts may put in place early warning systems to detect failure to comply with the
provisions or any signs of new abuse or retaliation against victims.
3. Collaborative strategies among caseworkers, police, prosecutors, and judges are
recommended.
4. Collection of Data Regarding Domestic Violence and Monitoring the incidence should be
done thoroughly.
5. Provisions safeguarding and providing relief to the male members in the community who
are being subjected to domestic violence should also be added.

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