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Domestic Violence During Pandemic: Legal Protection Available

August 20, 2020
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Background

Pandemic highlighted several concerns one of them was women locked up with perpetrators of the domestic violence. This issue came before different High Courts of India to provide the required help.

One such matter -All India Council Of Human Rights, Liberties and Social v. Union of India & Ors. [W.P.(C) 2973/2020] was listed before the Hon’ble bench comprising of Justices J.R. Midha and Jyoti Singh.  The bench, in its order, directed the setting up of a high-level committee to look into the issues raised in the petition. The petition also noted that there is a huge number of complaints of Domestic Violence have been registered in this lockdown.

A. Laws for Protection of Women

Every woman has a right to take legal action against her husband if she is being tortured both physically and mentally or tortured for not agreeing to the demand of money or valuables (Sec. 498(A) of IPC).

Explanation of Section 498A. — For the purposes of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

If the relations of the husband of a woman or her mother-in-law or any other relatives, torture her and demand money, valuable articles from her parents, she can lodge a complaint against them. (Sec. 498(A) of IPC).

A woman, if she is a witness has a right to be examined in her own house where she resides. (Sec.160 of Cr.P.C.).

If the police tell, the incident does not fall under their jurisdiction, then they can ask them to register a Zero-FIR.

Zero-FIR means an FIR can be filed in any police station (irrespective of place of incident/jurisdiction) and later, the same can be transferred to the appropriate police station.

B. Laws Under the Protection of Women from Domestic Violence 

The provisions under the Domestic Violence Prevention Act, 2005 are mentioned below.

The person aggrieved under the act of domestic violence can approach the court as per-

Section 27. Jurisdiction under the DV Act.—

(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which—

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.

The Protection of Women from Domestic Violence Act, 2005 (DV Act) proposed the appointment of Protection Officers in each district of the country, who would facilitate the reporting of domestic violence. These officers, typically women, are appointed by the State Government and are deemed, public servants.

Reporting Violence: Based on the information the Protection Officer received, they are required to prepare a “Domestic Incident Report” to the Magistrate, seek relief from the Magistrate on behalf of the victim and forward copies of the report to the police station within the jurisdiction of the victim.

Section 5 – Duties of police officers, service providers and Magistrate.—

A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person—

(a) of her right to make an application for obtaining relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:
Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.
Section 6. Duties of shelter homes.—If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.
Section 7. Duties of medical facilities.—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 in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility.
What are the rights of a victim of Domestic Violence? 

A woman who is victimized by acts of domestic violence will have the right to obtain the services and assistance of Police Officers, Protection Officers, Service Providers, Shelter Homes and medical establishments as well as the right to simultaneously file her complaint under Section 498 A of the Indian Penal Code for matrimonial cruelty.

Right to the issuance of Orders
An aggrieved person can prefer an application under the following provision for appropriate relief mentioned below:

Section 12: Application to Magistrate.—

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

Section 18. Protection orders.–

The magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

Section 19. Residence orders.—

(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

Section 20. Monetary reliefs.—

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

Section 21. Custody orders.—

Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for a 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 the visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

Section 22. Compensation orders.—

In addition to other reliefs as may be granted under this Act, 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.

Section 23. Power to grant interim and ex parte orders.—

(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

C. Apps for Handling Domestic Violence Issues 
  1. National Commission for Women (NCW) has introduced a complaints portal [NCW] for registering complaints of women facing domestic violence and also launched a-
Special WhatsApp number – 7217735372

2. Delhi State Legal Services Authority (DSLSA): Delhi State Legal Services Authority (DSLSA) has

One toll-free Helpline number 1516

with a view to helping vulnerable sections of society. Also, a

WhatsApp number 9667992802

wherein any victim of domestic violence can approach DSLSA through SMS or just giving a missed call and even after receiving a message or a missed call, the victim is contacted by competent legal aid and advice. DSLSA has launched an app on 5 May 2020 called

DELHI VIDHIK SEWA App

This App is an initiative to provide help to the people of Delhi. Delhi State Legal Services Authority came to their rescue by announcing this APP to help needy people in the city.

Additionally, the DCW has also introduced a WhatsApp Helpline Number 9350-181-181 and is taking necessary steps to publicize the same to help vulnerable women. In serious assault/sexual assault cases, Crisis Intervention Centre (CIC) through rape crisis cell counsellors accompany the aggrieved person to the police station, hospital, etc.

Any victim of domestic violence can approach DSLSA through SMS or just giving a missed call and even after receiving a message or a missed call, the victim is contacted by competent legal aid and advice.

Ministry of Health and Family Welfare in collaboration with “NIMHANS” has started a helpline

Helpline: 080–46110007

to provide psychological support to victims of domestic violence.

D. Helpline

Various Helplines For Women Facing Domestic Violence/Intimate Partner Violence

STATE WEBSITE CONTACT NUMBER
NATIONAL National Women Commission Domestic violence helpline-cum-Watsapp number i.e. 7814103253
UTTAR PRADESH http://www.wpl1090up.in/ 1090
HIMACHAL PRADESH Himachal Pradesh State Commission for Women 9805520079, 9805520097 9736011071

WhatsApp helpline number: 9459886600 Complaints can also be filed on the commission’s email id shimlahpscw@gmail.com.
MADHYA PRADESH INDORE POLICE: Domestic Violence

https://www.indorepolice.org/women-domestic-voilence.php

 1090

Women Helpline Toll-free no. of the state.
CHATTISGARH 181

Women integrated helpline.
TAMIL NADU Social Welfare department

https://www.tnsocialwelfare.org/pages/view/women-helpline-scheme

 181
KERELA Government of Kerala

https://kerala.gov.in/helpline-against-atrocities-on-women

 1091
KARNATAKA Department of Women and Child Development (DWCD), along with the Police and the Department of Health 181
ODISHA Department of Women and Child 181

Watsapp number 7205006039 for reporting cases of domestic violence.
BIHAR Women Development Cooperation Bihar

http://www.wdcbihar.org.in/Helpline.aspx

 Helpline numbers on the website.
JHARKHAND Ranchi District Administration The two numbers are 995507955 and 9955589677.
WEST BENGAL State Commission for Women 9830947247
MAHARASTRA Privately run number launched by the State Government 1800120820050 18001024040
GUJURAT Government of Gujarat

http://www.grcgujarat.org/pdf/abhyam-81.pdf

http://www.gujaratuniversity.org.in/web/NWD/NewsEvents/1000_PoliceHEART-1091%20-%20Women%20Helpline%20for%20Emergency%20Rescue.pdf

 181

ABHYAM
RAJASTHAN State Women Commission 181
PUNJAB Department of Social Security And Women & Child Development 181, 1091
ASSAM DIRECTORATE OF SOCIAL WELFARE (WOMEN AND CHILD DEVELOPMENT SECTOR) 181

Helpline Numbers: +91-9345215029, +91-361-2521242
NAGALAND 1092

Multi-agency helpline
ARUNACHAL PRADESH Government of Arunachal

https://itanagar.nic.in/helpline/

 1091
HARYANA 1091
UTTARAKHAND Police officials said that women in any emergency situation can register their complaint on the number — 9411112780.
MEGHALAYA 181

Multipurpose helpline
MIZORAM Government of Mizoram 1091

Image Courtesy: Zee News





LEGAL RESEARCHER OF THE ARTICLE
MANSI KANOJIYA
Legal Intern, Indian Law Watch
BA.LL.B Student of Gautam Buddha Unviersity
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