PROCEDURE FOR DOMESTIC VIOLENCE

Remedies Against Domestic Violence

Background:

In accordance with various International accords such as Vienna Accord, 1994, Beijing Declaration, Platform for Action, 1995, etc., The Domestic Violence Act, 2005 was passed by legislature to protect woman from Domestic Violence. But this not only concerns with the aggrieved woman, also cares about the child of such aggrieved person.

Need of Domestic Violence:

Even though, The Indian Penal Code, 1860, was amended to include section 498A, it was not suffice to fulfill the social demands. The scope of this section was limited only to the husband and his family. There exist no chance for civil remedy if violence was committed by the relationship  of aggrieved person's family.
Therefore, makeup the lacuna in law the Domestic Violence Act, 2005 was passed. Not only husband, but also the relationship of the woman who are members of joint family are included in this act. Hence, the aggrieved person shall raise a plea against any of her relationships. This would mean that even daughters, mothers, sisters are eligible to make an application with the magistrate.

What are Domestic Violence?

Under section 3 of the Domestic Violence Act, 2005, any act or conduct or commission or omission of any act against a women is domestic violence if it satisfy the following conditions

(I) harms or injures or endangers the aggrieved person or tends to do so. It includes physical abuse, sexual abuse, emotional abuse and economic abuse.

(II) To harass, harm, injure to coerce her or any other person related to the aggrieved person

(III) To threaten the aggrieved person to do any of the act mentioned in (I) and (II).

(IV) Injures or causes harm, physical or mental to the aggrieved person.

PROCEDURES FOR DOMESTIC VIOLENCE:

The first and foremost question among anybody to raise a dispute is under which authority the jurisdiction falls or to whom the application to be submitted? Unlike other family dispute, it was not placed under the civil court jurisdiction. The Magistrate is the authority allowed to entertain application regarding domestic violence.

Who to file an application?

Following person are eligible to present an application before the Hon'ble Magistrate. They are
I. An aggrieved person
II. A Protection Officer
III. Any other person on behalf of the aggrieved person

Powers of the magistrate:

Notice:

A Notice shall be issued by a Magistrate to Protection officer, who shall server it upon the respondents and on any other person as directed by the magistrate. The proof of service by the protection officer is a conclusive proof unless contrary is proved. The Notice shall contain the date of hearing of the application under the above said Magistrate.

Counselling:

The Magistrate may call for counselling either singly or jointly for the aggrieved person or respondents. The counseling shall be done by the service providers. The next hearing date shall not exceed two months time.

Welfare expert:

The Magistrate may request a person who is engaged in promoting family welfare for assisting him in discharging his functions. The person so appointed shall preferably be woman.

In Camera Proceedings:

If the Magistrate thinks fit that circumstances of the case warrant in-camera proceedings and parties to the proceedings agree then the Magistrate shall conduct the proceedings in camera.

PROTECTION TO WOMAN DURING PROCEEDINGS:

As per the provision of section 17, the aggrieved woman shall vest with the right to stay in the common household in which she was residing along with the perpetrators of domestic violence. This right is irrespective of title or beneficial interest in the property.
Under no circumstances, the aggrieved woman shall not be evicted or excluded from the enjoyment of shared household or any part of it. Hence, the woman shall have the protection of shelter even if enmity prevail between the aggrieved person and the perpetrators of the crime.
But this claim shall prevail only against husband. Not against any other person who are involved in the act of domestic violence. The “Shared Household” would mean house where husband resides. Hence, it may be one of the followings:

• House belonging to husband
• rented by the husband
• or house which belongs to joint family of which husband is a member

Know about Service Providers under Domestic Violence