This article is written by Sneha Awasthi, Chatrapati Sahuji Maharaj University, BA LL.B hons 2nd year internship under Le Droit India
Abstract: In this literature, the writer provides information and analysis on the topic of Protection of Women from Domestic Violence Act with regard to functionality, current changes and challengers. The findings of this study identify places in the enactment that needs international reference for improvement and development. This is in an effort to increase improvements of implementation of enforcement mechanisms, supportive services and improvement on existing legislation on protection of survivors of domestic violence.
Keywords: Introduction, Legal framework & objectives, Comparative analysis, Types of order, Eligibility criteria, Procedure, Impact, Mediation, Appeal, Challenges and conclusion
Introduction:
It can be agreed that without any doubt, domestic violence is an immense problem that exists in all parts of the world affecting people of all classes of the population. It defines as the physical or verbal abuse of an individual within a sexual partnership and in any other aspect as well. Various laws have been enacted by India in order to prevent against such asexuality which are Protecting of Women from Domestic Violence Act (PWDVA), passed in year 2005. This rather extensive piece of legislation has been drawn up specifically in order to provide safety and shelter to the women enduring the violence of domestic relations. The legal remedies are the protection orders, the residence orders and the orders of monetary relief as provided in the Act. It also tries to find out impacts that such violence has on children being brought up in such a violent environment. The PWDVA describes how the appointment of Protection Officers is to be carried out so that women can approach the law for protection in a bid to ensure safe shelter.
Legal Framework and Objectives:
The Protection of Women from Domestic Violence Act (PWDVA) was passed in 2005 to address a significant gap in the legal system regarding domestic abuse. Before this law, domestic violence often went unaddressed by existing legal measures, which primarily focused on criminal offenses rather than providing comprehensive support for victims.
The PWDVA was introduced in response to both domestic and international pressure for more robust protection for women. It aligns with India’s obligations under international treaties like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), reflecting a commitment to broader gender justice.
The primary goals of the PWDVA are to protect individuals from all types of domestic abuse, whether physical, emotional, sexual, or economic. It aims to offer immediate legal help, such as protection and residence orders, to ensure the safety of those affected. The act also seeks to provide financial support and address custody matters for women and children impacted by violence. Additionally, it empowers women by giving them the legal tools and support needed to seek justice and rebuild their lives.
The Act aims to create a more supportive and effective response to domestic violence, ensuring that victims receive the protection and assistance they need.
Comparative Analysis with Domestic Violence Laws in Other Countries
On comparing the Protection of Women from Domestic Violence Act (PWDVA), with the legislation in other countries some distinct differences and similarities were noticed.
For example, in the United States, the Violence against Women Act (VAWA) offers a broad amount of assistance to the victims such as emergency shelter along with legal representation and counselling. Thus, unlike the Indian PWDVA, which is centred on legal redress – protection orders, VAWA provides a range of services and stresses on inter-organizational cooperation for victims’ assistance.
In the UK, the Domestic Abuse Act 2021 is an act that is broader in its protections compared to the PWDVA but also particular protection is given to children who might witness abuse. The economic abuse is incorporated in the UK law as a type of domestic violence and corresponds to the recent changes in the PWDVA focusing on both, the economic and the emotional abuse.
Australia’s Family Violence Protection Act also covers a similar ensemble of types of abuse/violence and protection orders. It is using services for children and Australian laws empowering family safety and support while reinforcing advancement of shelter.
Despite this, the PWDVA has covered several types of abuse; however, several international laws to provide more extensive various forms of services and ordered, more cohesive methods when it comes to enforcement and assistance to victims. Canada, like other countries of the Anglo-American world such as the USA, UK, had a more advanced legal provision for immediate victim’s support and integrated strategies indicating the emerging universal trend of incorporation of all aspects of domestic violence in general legislation of the country.
Knowledge of these differences might provide significant ideas as to the changes and revisions of the PWDVA in order to more efficiently help the victims of domestic violence.
Types of Orders under the Act
Bases on the act there are the following types of orders;
The Protection of Women from Domestic Violence Act (PWDVA) provides several types of legal orders to protect and assist women experiencing domestic violence: The Protection of Women from Domestic Violence Act (PWDVA) provides several types of legal orders to protect and assist women experiencing domestic violence:
- Protection Orders: These are meant to protect the life of the victim in the shortest time possible. It can prevent the abuser from using physical force, communicate with the victim, or be near her residence or her workplace. For instance, if a woman is experiencing stalking by her former boyfriend, an order will bar him from being close to her or children.
- Residence Orders: These orders assist in ensuring that the victim gets safe living conditions are provided for. It can order the abuser to vacate the residence that both parties share or offer a place of residence if needed. For example, if the man is a threat to the woman and their children, the court can grant her a protection order that lifts him from the house so that she and the children can stay there securely.
- Monetary Relief Orders: All these orders help to cope with the financial problems that may arise because of domestic violence. They can lead the abuser to provide for the victim’s basic needs, healthcare, or attorney services. For instance, if the victim has suffered medical bills as a result of abuse or has lost her source of income, the court can compel the abuser to cater for the expenses to assist her in meeting them.
- Custody Orders: These orders define who among the parties to the case will take responsibility in raising the children that are victims of domestic violence. They can award the physical custody to the victim and sort out visitation rights throughout the abuser. For instance, if a woman wants protection from a partner who abuses her, the court may grant her permanent custody of the children in order to protect them from the abusive partner.
Collectively, these orders ensure that women experiencing domestic violence are protected, have a stable environment and support
Eligibility Criteria for Filing Orders
In order to enjoy legal provision, a woman has to be in domestic relationship with the person against whom she wants to file complaint. This category can be including the husband, boyfriend or anyone else with whom she may be living with. For instance, in Smt. In Shalu v. Harvinder Singh (2013), the court permitted a woman, who was in a live-in relationship with her partner, to seek protection; such a ruling proves that the statute is applicable various forms of domestic partnerships. More to it, the woman must have been exposed to some form of abuse in the marriage such has physical, emotional, verbal, or financial abuse. Even in Vijay v. State of Karnataka (2015) the Hon’ble court also upheld the grounds of Emotional and Financial Abuse as legal for seeking protection. Emphasised was the time when the complaint should be filed soon after the abuse had taken place. It should be noted that the Act does not set a definite time limit for its implementation, however, it is critical to act quickly to solve the problem. For instance, in Ritika Sharma v. Rajesh Sharma (2017), the utilitarian perception of the court was positive regarding the complaint filing. The case should be presented in a court of the area of jurisdiction of the region where the abuse happened or the area where the woman lives.
Procedures for Securing Orders
For women who want to seek protection under the Protection of Women from Domestic Violence Act (PWDVA), kindly go to the nearest police station/duty Officer or a Protection Officer with a complaint. You may bring the complaint in writing, or orally, detailing the violent behaviour you have suffered and what you require.
Subsequently, consult a lawyer or a legal aid service to get more information on the procedure and build your case. Next, apply to the local Magistrate’s court to obtain a protection order, permission to reside in the region or obtain monetary restitution or custody orders. Don’t forget to provide the evidence some of which may include documents.
Go to the two of the court proceedings when you and the abuser will be presenting his or her arguments. Based on the evidence adduced the Magistrate will make the above decisions. Once the orders are given make sure that they are complied with by informing the appropriate authorities if need be and call on them to help in the enforcement. This process assist in the achievement of the protection and support one needs.
Role and Responsibilities of Protection Officers
Protection Officers are involved under the Protection of Women from Domestic Violence Act (PWDVA) as the link between the woman and the law. They also help women file complaints, support them in getting protection and residence orders and also follow up on the same
They operate under the force’s instruction as detectives and police officers investigating cases of domestic violence and collecting evidence, including preparing reports for Magistrate. Protection Officers also assist in proving services that may include medical services, counselling services and legal services to the affected people. They have a significant responsibility of working closely with the cops, and any other authority to guarantee the safety of the victim.
Furthermore, Protection Officers are responsible for maintaining confidentiality and providing emotional support to the victims throughout the legal process. They also work to raise awareness about domestic violence and advocate for the victim’s rights, ensuring that the legal protections under the Act are fully utilized.
Overall, Protection Officers are essential for bridging the gap between victims and the justice system, facilitating access to justice and ensuring the effective implementation of legal protections.
Impact of the Orders
It could be observed that the orders passed under the PWDVA has been very effective, but the degree of efficiency might vary here. Though these orders may be useful to the women, because it eliminates the offender from their lives and reduces threats, there are many instances. Residence orders are advantaged by the fact that the abuser is barred from the home thus providing the victims and children with safety.
The monetary relief orders play a role in managing the financial crisis since it compels abusers to meet the expenses of the victim. Custody orders help in cases of making sure that children do not see violence while ensuring their safety at the same time.
The study also revealed that depending on the efficiency of these orders, the quantity of risk and vulnerability reduction in the lives of the subject(s) can be distinguished. First for example the protected women claimed that they felt safe and protected or another form of it could be; women who applied for protection orders believed that they were safe. However, the potency can sometimes be kept in check; this can be a case of slow enforcement of the law, or inadequate supportive services. Altogether the legal orders form part of the legal redress strategies that are very crucial towards the substantiation of FGM, and its continuation; nevertheless depends on its and more support.
The Effectiveness of Mediation in Domestic Violence Cases
Family mediation in cases of domestic violence entails the use of a third person in order to reach a compromise on the matter. Even though mediation can be helpful in many different situations, its application in the case of domestic violence is stirred a lot of discussions.
The key aim of mediation is to set out the disputes to a peaceful conclusion. Such circumstances, though, are distinctive because the power is uneven in the case of domestic violence. The abused will always succumb to the demands of the abuser due to coercion hence will be forced to sign deal. Thus, it can be done at the victim’s detriment, hence reducing the appropriateness of mediation.
It is for this reason that many professionals insist that mediation is sometimes not very appropriate where there is domestic violence since it might not work to solve the root cause of the problem which is the exercise of power. He should instead concentrate on the safety of the victim and the legal remedies with the help of orders issued by the court. For instance, through the orders of protection, etc. one may get to have the protection that one needs as compared to mediation that may not warrant such protection.
Thus, there are some situations when mediation is useful, for example, if the abuse is not very serious and both partners are ready to communicate constructively. In these circumstances, mediation can be useful in helping to sort out disagreements concerning child access or property, as long as there is a safe plan for the mother as well as any kids that are included.
All in all, although there are some instances when mediation can provide the resolutions of domestic violence cases, it should be done cautiously with the aim to maintain the victim’s safety and protection of her rights.
Appeal Processes and Review Mechanisms
Under the Protection of Women from Domestic Violence Act, there are clear processes for appealing and reviewing decisions. If someone is unhappy with a decision made by a Magistrate, they can appeal to a Sessions Court within 30 days. The Sessions Court will then review the case and can either uphold, change, or overturn the Magistrate’s decision.
If there’s still dissatisfaction after this, the case can be taken to the High Court through a revision petition. This step is used when there’s a concern that the lower courts made a mistake or misinterpreted the law. The High Court reviews whether the decision followed legal procedures and whether justice was properly administered.
These appeal and review options are in place to ensure that decisions are fair and legally sound, offering a way to correct any errors and uphold the protections intended by the Act.
Challenges and Areas for Reform
PWDVA has been effective in dealing with the cases of domestic violence; however, the following challenges arise and require some form of reforms. A major concern is the execution of orders provided by the senior management officers. In some cases women are faced by problems of accessing ORDs which often involves problems in enforcement of protection and residence orders arising from bureaucratic blunders or lack of support from the law enforcement agencies as per provisions of the Act. For example, in Laxmi v. Union of India ((2014) 10 SCC 694), the Supreme Court of India underlined the inability of enforcement mechanisms stating that the lacuna requires more effective implementation strategies.
The last one is the problem of facilitating legal treatment in the cases where individuals can turn to the Act as the source of protection. This is because; many women such as the rural women are ignorant of their rights or the process to seek redress for the injustice. This often leads to under reporting and poor protection since the dangers are not appreciated as they should be. The judgement of Suman v. State of Maharashtra (2017) showed that victims often fail to get proper instructions about their legal rights, which ratios proved demanding for improvement.
Besides, monetary relief and maintenance under the Act’s terms may be inadequate or incongruent. The court observed in Suman Sharma v. Suresh Sharma (2018) that the amount of compensation awarded doesn’t prove to be sufficient to the needy person, which again indicated that there is a great need for a rational and reasonable approach in the matter of giving maintenance allowance.
Also, there is apprehension as regards the efficiency of the Act in managing non-contact kinds of violence, that is, emotional and financial violence. Even though some forms of abuses have been recognised by the Act such as those highlighted in the Neeta Sharma v. Rajesh Sharma (2022), the Act heavily lacks appropriate implementation standards, and protective responses could be erratic, it is therefore suggested to issue improved guidelines and capacity Recent Legal Developments and Amendments
The Protection of Women from Domestic Violence Act (PWDVA) has been amended recently with the purpose of betterment and extensiveness of the law. In the previous Act its scope was limited only to the physical abuse of the women but according to the new Act it includes all the abuses in the emotional, verbal and financial forms. What this means is that victims of these types of abuse can also look for legal inquiries, which also gives more meaning into the Act.
With regard to updates, there is a need to enhance the enforcement of protection orders within the shortest time possible. These new provisions enhance the expectations on the implementation of these orders to occur at an earlier time as well as bear stiffer consequences on those that fail to adhere to them. This assisting in making definite that victims acquire the protection they require without extended undue delay.
Also, attentions have been paid to enhance the victim services by enhancing cooperation between the Protection Officers and services in the area. This includes; having easier access to shelters, medical facilities and counselling services; thereby making the opportunity of getting necessary assistance to the victims easier.
Collectively, all these alterations aim at responding to the various types of domestic violence and offer enhanced, prompt defence and assistance to the victims.
Therefore, there are applaud able development on protection of women from Domestic Violence Act and still has some limitations. Consequently, younger women require more extensive supportive services compared to their older counterparts. It is necessary for the protection and search for justice for the survivors of domestic violence to implement further reforms, to enforce them properly, and to get references from other countries
Reference
The Protection of Women from Domestic Violence Act, 2005 March 29, 2022
Protection of women’s from domestic violence ACT
Trupti Jhaveri Panchal ‘Domestic Violence and the Law: A Study of Complaints under the Protection of Women from Domestic Violence Act, 2005 in Maharashtra, India’ (July 2023)
SRIRAKSHA V SRIVATSAV ‘the Protection of Women from Domestic Violence Act, 2005- Civil or Criminal’ (May 2, 2022)
