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Domestic Violence Act & The Rights of Men and Women
Gurdeep Singh
The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India, enacted "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 formatters connected therewith or incidental thereto." The Act came into force on 26 October 2006.
What is Domestic Violence?
Domestic violence is defined under Section 3 of the Act as "any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:
a. Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
b. Harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
c. Has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
d. Otherwise injures or causes harm, whether physical or mental, to the aggrieved person."
Pursuant to the Act, the aggrieved person is defined under section 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 domestic violence by the respondent."
“Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
“Respondent” as defined under section 2(q) of the Act, means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.
In the case of Hiral P. Harsora v. Kusum Narottamdas Harsora (2016), the Supreme Court ruled that the term "respondent" in the definition of persons against whom remedies under the DV Act are available cannot be limited to "adult male person" as it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The court clarified that the categories of persons against whom remedies are available include women and non-adults, so remedies under the DV Act are also available against female members and non-adults.
Rights of Aggrieved Women under Domestic Violence Act
The Protection of Women from Domestic Violence Act, 2005 recognizes the following rights of women who are victims of domestic violence:
Right to obtain protection orders: The Magistrate can pass a protection order for the aggrieved person if satisfied that domestic violence has taken place or is likely to take place. The protection order can prohibit the respondent from committing any act of domestic violence, aiding or abetting it, entering the aggrieved person's workplace or school, attempting to communicate with the aggrieved person, alienating assets or property, causing violence to dependants or helpers, or committing any other act specified in the protection order. The order can be passed after hearing both parties.
Right to reside in a shared household: Every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. The aggrieved person shall not be evicted or excluded from the shared household.
Right to monetary reliefs: The Magistrate can order the respondent to pay monetary relief to the aggrieved person and any children of the aggrieved person due to domestic violence. This relief can include compensation for loss of earnings, medical expenses, damage or removal of property, and maintenance for the aggrieved person and her children. This maintenance can be in addition to maintenance ordered under Section 125 of the Code of Criminal Procedure or any other law in force.
Right to custody: At any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.
Right to compensation: The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.
Right to legal assistance: A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence, shall inform the aggrieved person of her right to free legal services under the Legal Services Authorities Act, 1987.
Right to medical facilities and counseling: If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person shall provide medical aid to the aggrieved person in the medical facility. Further, the Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counseling.
Right to confidentiality: If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera.
Rights of Men under Domestic Violence Act:
Section 2(a) of the Act states that “aggrieved person” means 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. Thus, it is clear that protection under domestic violence Act is not applicable to men.
The Delhi High Court recently observed that the protection under Domestic Violence Act is not available to husband or male member of family. "In the present case, the respondent i.e. the husband of the petitioner has initiated proceedings under Section 12 of the DV Act. Prima facie it seems in view of Section 2(a), the protection of the Act is not available to a male member of the family and more particularly the husband. For the aforesaid reasons, the proceedings in complaint case No. 1296/2022 pending before the learned MM, Karkardooma Courts, Delhi shall remain stayed till the next date of hearing." the Hon'ble Court ruled.
However, the Bombay High Court recently in the case of Vithal Manik Khatri V/s Sagar Sanjay Kamble, Writ Petition No.4037 of 2021, held that a transgender woman who has undergone sex re-assignment surgery can be an “aggrieved person” under the Domestic Violence Act and has the right to seek interim maintenance in a domestic violence case.
"The Transgender who has performed surgery to change gender to a female, needs to be termed as an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005. It is, therefore, held that a person who has exercised his right to decide the self-identified gender of women is an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005.” the Hon'ble Court observed.
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Sophie Asveld
February 14, 2019
Email is a crucial channel in any marketing mix, and never has this been truer than for today’s entrepreneur. Curious what to say.
Sophie Asveld
February 14, 2019
Email is a crucial channel in any marketing mix, and never has this been truer than for today’s entrepreneur. Curious what to say.