Chapter 24: Domestic Violence Legal Aspects

24.1: Introduction

• Domestic Violence — includes elaborately all forms of actual abuse or threat of abuse of physical, sexual, verbal, emotional, and economic nature that can harm, cause injury to, or endanger the health, safety, life, limb, or wellbeing, either mental or physical of the aggrieved person.

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• Victims/ persons of domestic violence are mostly women and they usually belong to one of the following three categories:
  • Single and legally divorced, recently widowed, recently separated, recently sought an order of protection, younger than 28 years of age, addicted to alcohol or other drugs, pregnant, having excessively jealous or possessive partners.
  • Witnessed or experienced physical or sexual abuse as children.
  • Have partners who have witnessed or experienced physical or sexual abuse as children.

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24.2: Medical Aspects of Domestic Violence

1. Physical Violence
   • Pushing, shoving, slapping, punching, choking, kicking, holding, binding, and assault with weapons is frequent.
   • Two forms of physical violence have been noticed at home and they are: occasional outbursts of bidirectional violence and frank terrorism.
2. Physical Abuse
   • This includes threats of physical harm to the patient or others, intimidation, coercion, degradation and humiliation, false accusations, and ridicule.
   • Annoyance may occur during a relationship, or during and after a relationship has ended.
   • Cyberstalking.
3. Sexual Abuse
   • This may include nonconsensual or painful sexual acts.
   • Sexual abuse under domestic violence is said to have occurred when any one of the following several forms between intimate partners has taken place:
     • Minimized the importance of your feelings about sex
     • Criticized you sexually
     • Insisted on unwanted or uncomfortable touching
     • Withheld sex and affection
     • Forced sex after physical abuse or when you were sick
     • Raped you
     • Been jealously angry, assuming you would have sex with anyone
     • Insisted that you dress in a more sexual way than you wanted.

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24.3: Effects of Domestic Violence on Children

• Many children in families where domestic violence has occurred appeared to be “parentified.”
  • They are forced to grow up faster than their peers, often taking on the responsibility of cooking, cleaning, and caring for younger children.
• They do not trust their fathers because of their role as an abuser and they may have been worried about what to expect when coming home.
• They learned at a young age to be prepared for anything.
• Children may also be isolated.
  • Typical activities such as having friends over to their house may be impossible due to the chaotic atmosphere.
  • Kids aren’t going to have their friends over at home when mom has a black eye.
• Children may respond by being overachievers.
• Children in domestic violence tend to be either extremely introverted or extremely extroverted.
• Psychosomatic problems are common; these children’s eating and sleeping patterns tend to be disrupted.
• Children who witness domestic violence can wipe out a child’s confidence and leave them shocked.
• Infants and toddlers who witness violence show excessive irritability, immature behavior, sleep disturbances, emotional distress, fears of being alone, and regression in toileting and language, and may develop behavior problems.
• Teenagers living with domestic violence face the unique problem of trying to fit in with their peers while keeping their home lives a secret.
• Teens in shelters often face the problem of having to move and begin school in a new place and having to make new friends while feeling the shame of living in a shelter.
• Needless to say, their family relationships can be strained to the breaking point.
• The result can be teens who never learn to form trusting, lasting relationships, or teens who end up in violent relationships themselves, ending up in violent relationships as adults either as victims or abusers.

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24.4: The Protection of Women from Domestic Violence Act (2005)

1. Physical Abuse

   • An act or conduct causing bodily pain, harm, or danger to life, limb, or health;
   • An act that impairs the health or development of the aggrieved person;
   • An act that amounts to assault, criminal intimidation and criminal force.

2. Sexual Abuse: Any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman.

3. Verbal and Emotional Abuse

   • Any insult, ridicule, humiliation, name-calling;
   • Insults or ridiculed for not having a child or a male child;
   • Repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

4. Economic Abuse

   • Depriving the aggrieved person of economic or financial resources to which she is entitled under any law or custom or which she acquires out of necessity such as household necessities, stridhan, her jointly or separately owned property, maintenance, and rental payments;
   • Disposing of household assets or alienation of movable or immovable assets;
   • Restricting continued access to resources or facilities in which she has an interest or entitlement by virtue of the domestic relationship including access to the shared household.

5. Domestic Relationship: A domestic relationship as under the Act includes live-in relationships and other relationships arising out of membership in a family.

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Beneficiaries under the Act

• Women

  • The Act covers women who have been living with the Respondent in a shared household and are related to him by blood, marriage, or adoption and includes women living as sexual partners in a relationship that is in the nature of marriage.
  • Women in fraudulent or bigamous marriages or in marriages deemed invalid in law are also protected.

• Children

  • The Act also covers children who are below the age of 18 years and includes adopted, step or foster children who are the subjects of physical, mental, or economical torture.
  • Any person can file a complaint on behalf of a child.

• Respondent: The Act defines the Respondent as any adult male person who is or has been in a domestic relationship with the aggrieved person and includes relatives of the husband or male partner.

• Shared household: A household where the aggrieved person lives or has lived in a domestic relationship either singly or along with the Respondent.

24.5: Rights Granted to Women

• Right to reside in a shared household:
  • The Act secures a woman’s right to %%reside in the matrimonial or shared household even if she has no title or rights in the household%%.
  • A part of the house can be allotted to her for her personal use.
  • A court can pass a residence order to secure her right of residence in the household.
• Right to obtain assistance and protection:
  • 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 own complaint under Section 498 A of the Indian Penal Code for matrimonial cruelty.
• Right to issuance of orders:
  • Protection Orders:
  • These are passed to %%prevent the accused from aiding or committing an act of domestic violence%%, entering the workplace, school, or other places frequented by the aggrieved person, establishing any kind of communication with her, alienating any assets used by both parties, causing violence to her relatives or doing any other act specified in the Protection order.
  • Residence Orders:
  • This order ensures that %%the aggrieved person is not dispossessed%%, her possessions not disturbed, the shared household is not alienated or disposed off, she is provided an alternative house by the respondent if she so requires, the respondent is removed from the shared household and he and his relatives are barred from entering the area allotted to her.
  • Monetary Relief:
  • %%The respondent can be made accountable for all expenses incurred and losses suffered by the aggrieved person%% and her child due to the infliction of domestic violence.
  • Custody Orders:
  • This order %%grants temporary custody of any child or children to the aggrieved person%% or any person making an application on her behalf.
  • Compensation Orders:
  • The respondent may be %%directed to pay compensation and damages for injuries caused to the aggrieved person%% as a result of the acts of domestic violence by the respondent.
  • Interim and Ex parte Orders:
  • Such orders may be passed if it is deemed just and proper upon commission of an act of domestic violence or likelihood of such commission by the respondent.

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24.6: Liabilities and Restrictions Imposed upon the Respondent

• He can be subjected to certain restrictions as contained in the Protection and Residence order issued against him.
• The respondent can be made accountable for providing monetary relief to the aggrieved person and her children and paying compensation damages as directed in the compensation order.
• He has to follow the arrangements made by the court regarding the custody of the child or children of the aggrieved person as specified in the Custody order.

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24.7: Authorities Responsible and their Functions

• Protection Officers:

  • They provide assistance to the court in preparing the petition filed in the magistrates office, also called a Domestic Incident Report.
  • It is their duty to provide necessary information to the aggrieved person on Service Providers and to ensure compliance with the orders for monetary relief.

• Service Providers:

  • These refer to organizations and institutions working for women’s rights, which are recognized under the Companies Act or the Societies Registration Act.
  • It is their duty to approach and advise the aggrieved person of her rights under the law and assist her in initiating the required legal proceedings or taking appropriate protective measures to remedy the situation.

• Court of First Class Judicial Magistrate or Metropolitan Magistrate: This shall be the competent court to deal with cases of domestic violence and within the local limits of this court, either of the parties must reside or carry on business or employment, or the cause of action must have arisen.

• General Duties of Police Officers, Service Providers and Magistrate:

  • Upon receiving a complaint or report of domestic violence or being present at the place of such an incident, they are under a duty to inform the aggrieved person of:
  • Her right to apply for obtaining a relief or the various orders granted under the Act;
  • The availability of services of Service Providers and Protection Officers;
  • Her right to obtain free legal services; and
  • Her right to file a complaint under Section 498 A of the Indian Penal Code.

• Counselors: The Magistrate may appoint any member of a Service Provider who possesses the prescribed qualifications and experience in counseling, for assisting the parties during the proceedings.

• Welfare experts: The Magistrate can appoint them for assisting him in discharging his functions.

• In-charge of Shelter Homes: The person in charge of a shelter home shall provide shelter to the aggrieved person in the shelter home upon request made by the aggrieved person.

• In-charge of Medical Facilities: The person in charge of a medical facility shall provide medical aid to the aggrieved person upon request made by the aggrieved person.

• Central and State Governments: Such governments are under a duty to ensure wide publicity of the provisions of this Act through all forms of public media at regular intervals, to provide awareness and training to all officers of the government, and to coordinate the services provided by all Ministries and various Departments.

24.8: Penalty and Punishment (in India)

• For Respondent:
  • The breach of the Protection Order or interim protection order by the Respondent is a cognizable and non-bailable offense.
  • It is punishable with imprisonment for a term, which may extend to one year or with fine up to twenty thousand rupees or with both.
  • He can also be tried for offenses under the Indian Penal Code and the Dowry Prohibition Act.
• For Protection Officer:
  • If he fails or does not discharge his duties as directed by the Magistrate without any sufficient cause, he will be liable for having committed an offense under the Act with similar punishment.
  • He cannot be penalized without the prior sanction of the state government. The law protects him for all actions taken by him in good faith.

24.9: The Protection of Women from Domestic Violence Rules

• The Act empowers the Central Government to make rules for carrying out the provisions of the Act. In exercise of this power the Central Government has issued the Protection of Women from Domestic Violence Rules 2005 relating to the following matters:
  • The qualifications and experience to be possessed by a Protection Officer and the terms and conditions of his service;
  • The form and manner in which a domestic incident report may be made;
  • The form and the manner in which an application for Protection Order may be made to the Magistrate;
  • The form in which an application for legal aid and services shall be made;
  • The other duties to be performed by the Protection Officer;
  • The rules regulating registration of Service Providers;
  • The means of serving notices;
  • The rules regarding counseling and procedure to be followed by a Counsellor;
  • The rules regarding shelter and medical assistance to the aggrieved person; and
  • The rules regarding breach of Protection Orders.

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24.10: Domestic Violence and Law (Global Scenario)

• In all US jurisdictions, the victim of domestic violence can obtain by statute a Civil Protection Order (CPO).
• Violation of CPO is a crime for which the police can arrest the offender, even if the violation did not occur in the presence of the officer.

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People who most likely get abused:

• Women who are single or who have recently separated or divorced

• Women who have recently sought an order of protection

• Women who are younger than 28 years of age

• Women who abuse alcohol or other drugs

• Women who are pregnant

• Women whose partners are excessively jealous or possessive

• Women who have witnessed or experienced physical or sexual abuse as children

• Women whose partners have witnessed or experienced physical or sexual abuse as children.

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CPOs typically require that the respondent shall:

• Not molest assault, harass, or in any manner threaten or physically abuse the petitioner and/or his/her child(ren).
• Stay 150 yards away from the petitioner’s home, person, workplace, children, place or worship, and daycare provided.
• Not contact the petitioner and/or his/her children in any manner.
• Vacate the residence at (location) by (date and time) the police department shall stand by and shall:
  • Give the respondent 15 minutes to collect his or her personal belonging;
  • No other property may be removed from the premises without petitioner’s permission;
  • The police shall take all keys and garage openers from respondent,
  • Check to see that they are the right ones, and then turn keys over to the petitioner.
• Relinquish possession and/or use of the following personal property as of (date and time).
• Turn over to the police any and all weapons that the respondent owns or possesses, and all licenses the respondent has authorized the possession of or purchase of weapons.
• Participate in and successfully complete a counseling program.
• Relinquish custody of minor children to petitioner until further order of the court or the expiration date of the order.
• Have rights of visitation with minor child(ren) under specified conditions.
• Pay spousal and child support as designated.
• Pay for specified repairs, medical or health insurance costs, attorney’s fees, and court costs.

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