Understanding Legal Protection Against Domestic Violence in India | Key Insights under PWDVA 2005

Domestic violence is a major problem that impacts millions of individuals, especially women and children, throughout the country. Domestic violence is not only limited to physical violence, but includes emotional, psychological, and financial violence that can cause emotional trauma. However, even with all the various laws available to deal with domestic violence, victims are often silent because of fear, shame, or not knowing what options are available to them. Fortunately, India has laws designed to protect victims of domestic violence. This article provides an insight at the laws available to victims of domestic violence so that they can seek justice.

Understanding Domestic Violence

The Protection of Women from Domestic Violence Act, 2005 (PWDVA)

The Protection of Women from Domestic Violence Act, 2005 is considered an innovative law that sought to offer women’s legal protection against domestic violence. Before this legislation was passed, there was no law in India to directly addressed domestic violence, leaving many women without options. The Act acknowledges that domestic violence can occur in different forms, and therefore it provides various options of recourse to enable victims to not only escape abuse, but also restore their lives to the point of independence.

Purpose and scope of the Act 

The PWDVA, essentially, exists to protect women from violence that occurs inside the home, whether it be by others in the family or an intimate partner. Furthermore, it offers a comprehensive regime of protection, not limited to only legal recourse, but immediate relief for victims. It is civil law, rather than criminal law, it is oriented toward placing women in a safe space, and providing recourse. On the other hand, if there is considerable violence inflicted upon a woman, it can be related to the criminal element. 

The PWDVA is available to women where there is a current or past domestic relationship exists with the respondent, there are varies forms of who can be captured, whether it be a wife, live-in partner, daughter, mother, and a sister.

Important Provisions and Sections

Section 3 – Meaning of Domestic Violence

This section defines domestic violence in general terms, covering physical, emotional, sexual, and economic abuse. Domestic violence also includes any act of commission or omission that causes a disturbance of the woman’s mental peace or disrupts her emotional wellbeing.

Section 12 – Complaint

A woman experiencing domestic violence can file a complaint with the Magistrate or Protection Officer. This section outlines the steps to file a domestic violence case and the obligations of authorities to assist the victim.

Section 18 – Protection Orders

A Protection Order is an order issued by the magistrate, prohibiting the abuser from contacting the victim or coming within close proximity. A Protection Order is intended to protect the victim’s safety and security.

Section 19 – Residence Orders

A Residence Order is an order of the court that allows the victim to live in her shared home or if necessary, relocate to a safe space. A Residence Order allows for the victim to remain in the residence and prohibits the abuser from dispossessing her, evicting her or removing her or one of her children.

20 – Money Relief

Victims of domestic violence can receive money relief for expenses or loss of income caused by the abuse. The court may order the abuser to pay the victim for the harm caused.

21 – Custody Orders

The courts can grant custody of children to the victim in cases where the child also suffered domestic violence or the abuser poses a risk to the child’s safety.

22 – Compensation Orders

If the domestic violence caused serious injury or suffering, the court may require the abuser to pay the injured party damages.

Rights and Remedies in PWDVA 

The law provides several remedies which are geared towards giving the victim urgent relief, including:

• Protection Orders: The law provides a legal order to protect the victim from any further violence which prohibits the perpetrator from contacting the victim or repeating the abusive behavior.
• Financial Relief: The law provides for financial assistance to the victim, covering rent or home related costs or education for her children and assistance for medical treatment, or even emotional distress.
• Residence Orders: The law ensures the right of the victim to remain in her home shared with the abuser, providing a stable place for the victim and any children involved.
• Custody Orders: If there are children involved, the law allows the victim to gain custody of those children if it is proven that the abuser has acted in a manner harmful to the well-being of the child.
• Counseling Orders: The law provides that the court may recommend counseling for the victim or perpetrator, or possibly both to help resolve the issues which may prevent violence from continuing.

Who Can Seek Protection?

The Protection of Women from Domestic Violence Act, 2005 (PWDVA), is aimed at protecting women who are victims of domestic violence. The Act acknowledges a wide range of relationships that are entitled to protection by the provisions for domestic violence, meaning that virtually any woman experiencing abuse in a domestic situation can exercise her right to protection.

Criteria for Women and Children 

Women in Relationships:  The legislation covers any woman, married or living in a domestic partnership, who experiences any type of domestic violence from a family member or intimate partner. This means wives, mothers, daughters, or sisters, and those women whose partners have deserted them. Women living in a domestic partnership are included, even when there has not been a formal marriage contract, as long as there is evidence to suggest there was a domestic relationship of some type between the respondent and the complainant. 

Children: The legislation also captures children who are affected by domestic violence, particularly if they witness the abuse or are victims themselves. If a child suffers harm, and resides in the same home as a woman being abused, the court can order custody of the child to the woman or make similar orders for protection. 

Female Family Members: The legislation seeks to protect all female family members who are subjected to domestic violence, including sisters, daughters, and mothers regardless of their relationship status.

Types of Relationships Covered

The PWDVA encompasses a range of domestic relationships where there is cohabitation and mutual dependence:

1. Married Women: The most recognized and prevalent meaning, a woman is in an abusive relationship with her husband or in-laws.
2. Women Living in a Live-In Relationship: Live-in relationships are defined as two people living together in a domestic relationship without the legal relationship of marriage, which is being increasingly accepted in Indian law. A woman in a live-in relationship can utilize the legal protection of the PWDVA if she encounters any abuse.
3. Women who have been abandoned and widows: Women who are abandoned by their husbands or partners (even if they are living separately) can seek protection under the law from her husband or his family when abuse occurs.

Female in-Laws or relatives of the abuser: Women can also seek relief under the PWDVA when the abuse is being conducted by the in-laws of their husband or partner, or by a member of the family of their husband or partner.

Legal Procedures and Steps for Filing a Complaint

One of the most noteworthy advantages of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) includes a definite process of law for victims to obtain help. This means that if a woman is a victim of domestic violence, the Act enables her to lodge a complaint and seek relief in a very straightforward and uncomplicated process. The procedural requirements of the Act can be broken down as follows:

How to lodge Case of Domestic Violence

1. Filing complaint: If a victim wants to lodge a complaint of domestic violence, she can approach a Magistrate or a Protection Officer. Alternatively, the victim can directly approach a police station, but filing with a Magistrate is usually more effective, as the Magistrate has the ability to issue protection orders.  The victim may request assistance from the Protection Officer, who is a government appointed person whose job it is to assist women in distress or anyone with a legal authority. The complaint should disclose the nature of the abuse and list the relief or remedy requested. Abuse can also be described in terms of physical, emotional, financial, or sexual abuse.
2. Documentation and Evidence: The victim is required to provide documents that are relevant to the complaint. These can include:
3. Medical records (if the abuse was physical)
4. Photographic evidence of injuries or damage

Police reports/records (if any prior reports have been made)

Role of Protection Officers and Police

The Protection Officer’s Function: The Protection Officer is an important person who will help the victim navigate the legal process. This role will primarily include: 

• Helping the victim file the complaint 
• Ensuring the victim’s safety through emergency protective measures 
• Making sure the complaint is filed in the right court (Magistrate or Court) 
• Monitoring the compliance of any protection orders and direction.

Temporary Orders (Residence, Protection, Custody)

Once the complaint has been submitted, it will be possible to make requests for temporary orders with the purpose of ensuring the immediate safety of the victim. The following orders are available:

Protection Order

This is the initial response. The Magistrate can issue a Protection Order prohibiting the abuser from having any contact or coming within a defined distance from the victim. This can include an order prohibiting the abuser from damaging the victim’s property, and/or threatening the victim.

Residence Order

If the victim fears being evicted from her residence by the abuser, the victim may also request a Residence Order. The purpose of this order is to ensure that the victim retains the ability to live in her current shared residence, or in some cases, will have an alternative place to stay. The court may order the abuser to leave her residence, and may also order that the victim is not evicted.

Custody Orders

If there are children involved, the Magistrate may issue temporary custody orders. If appropriate, these orders can establish custody of the children in the victim in order to protect the children from the abuser. Additionally, the court can also rule on visitation rights for the abuser while considering the safety and welfare of the children.

Timeline for resolution

Once a complaint is formally lodged, the Magistrate must hold a hearing as soon as possible. The timeline for the hearing will depend upon the urgency of the matter (typically 3-7 days). In a matter when there is serious physical injury or a threat to life, the Magistrate could issue immediate orders. For a less serious matter, the timeline could be lengthened.

The PWDVA mandates that all matters be resolved in a timely manner, generally no longer than 60 days from the date a complainant files their application. However, it should be noted that the timelines could go longer in the event of needing to gather additional evidence or witnesses.

Legal Assistance and Services

The Prevention of Women from Domestic Violence Act (PWDVA) makes provision for free legal assistance and representation for victims of domestic violence who cannot afford legal representation. Agencies such as the National Commission for Women (NCW) can assist with both filing complaints and seeking justice on the victim’s behalf, also at no cost. Legal aid is a provision under the Legal Services Authorities Act, 1987 legislation, covering legal guidance by legal professionals for victims of domestic violence at no cost.

Key Provisions and Protection Available

1. Protection Orders

The PWDVA outlines the provision for Protection Orders as one of its main provisions. Protection Orders are intended to protect the victim by stopping further abusive behaviors from occurring. A Protection Order can prohibit the abuser from:

• Coming to or contacting the victim
• Causing of harming, threats, or harassment
• Destroying the victim’s property or belongings
• Forcing the victim to leave or vacate the shared residence

Once the Magistrate has heard the complaint, they will issue the order to ensure the safety of the victim from immediate harm.

2. Residence Orders

A Residence Order makes sure that the victim and any children are not displaced from their home. The victim can remain in their home, or the abuser can be ordered to move out of the shared home. The order can provide accommodation to the victim where required.

3. Monetary Relief

A victim of domestic violence is entitled to a monetary relief from Section 20 of the Act, including:

• Compensation for medical treatment, legal costs and loss of earnings
• Maintenance costs for her and her children
• Monetary compensation for emotional distress

4. Custody Orders

In cases with children, the court can issue custody orders in cases where the abuser may threaten the child’s safety. If a victim is threatened, the court may grant the victim custody. Visitation can also be limited.

Recent Developments and Amendments

1. Judicial Interpretations

The PWDVA now extends beyond physical abuse and includes emotional abuse, psychological abuse and economic abuse in several different forms. These enhancements result in coverage for more victims, such as those tormented by financial or emotional control, harassment or abuse. The judiciary has advocated for the timely resolution of domestic violence cases and is committed to time bound litigation and faster protective solutions that would provide greater protections to victims of domestic violence.

2. Increasing Inclusion in the PWDVA 

Although there have not been major amendments to the PWDVA recently, the interpretation of the PWDVA has become increasingly inclusive. The Courts have enlarged the protection provided under the PWDVA to women who are in live-in or cohabitating relationships, recognizing that these women experience domestic violence in a similar context and are entitled to the same legal protections as married women. This development ensures that women experiencing domestic violence in a non-marital relationship are entitled to the same protections, to reduce or eliminate gaps in legal protections, and access to justice.

3. Enhancing Enforcement Mechanisms

Measures have been taken to enhance the enforcement of protection orders and other legal mechanisms for protection. The majority of states also have Domestic Violence Cells in police stations to facilitate the handling of cases involving domestic violence in specialist units. 

4. Technology and Access to Legal Resources 

Additionally, technology has improved access to justice for victims. E-filing systems and mobile applications have been launched to assist women in filing a complaint and tracking their cases, as an easier, more accessible, and efficient way of administering the justice process.

FAQs on Legal Protection Against Domestic Violence in India