Professional Documents
Culture Documents
Swami Vivekanand Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women.
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Domestic Violence can be described as when one adult in a relationship misuses power to control another. It is the establishment of control and fear in a relationship through violence and other forms of abuse. The violence may involve physical abuse, sexual assault and threats. Domestic Violence isn't just hitting, or fighting, or an occasional argument. It's an abuse of power. The abuser tortures and controls the victim by threats, intimidation, and physical violence.
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Physical Violence
The word physical means Something related to body rather than mind or relating to things that you can see hear or feel.Thus, physical violence is that violence or exercise of power which has harmed the body. It is the intentional use of physical force with the potential of causing bodily injury, harm, disability, or death. SIRAJMOHMEDKHAN JANMOHAMADKHAN V. HAIZUNNISA YASINKHAN & ANR., (1981) 4 SCC 250
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Verbal abuse
Verbal abuse is giving its meaning itself as such type of abuse which hurts somebody verbally or we can say that violence which is committed by the words either written or spoken Is called verbal abuse. It is also called as revealing is a form of abusive behavior involving the use of language. It is a form of profanity in that it can occur with or without the use of expletives. A.JAYACHANDRA V. ANEEL KAUR REPORTED IN (2005) 2 SCC 22
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In 1994 The National Commission for Women takes up the draft bill on domestic violence. In 2003 The NDA government brings in a bill on domestic violence, this bill sparks intense protests and is referred to a Parliamentary Committee for review. With the change of government the NDA bill dies. In 2003-2004: The signature campaign from 8 states collects 2.5 lac voices from the ground to demand an early passage of the Bill. In 2005 The UPA Government passes the Protection of Women from Domestic Violence Act (PWDVA, 2005). The Act receives presidential assent and enters in law books. 2/20/2012 12
After the Government of India passed the PWDV Act in October 2005, the task ahead of the women s groups was to see that the Act was notified at the earliest. Keeping this in mind, Action India calls First National Conference on PWDVA in February 2006 to pressurize the government for early action. Lastly in 2006 (26th October), after sustained pressure from women s groups, the rules to the PWDVA are notified and the law comes into force like this the historical development takes place and we got the Act.
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The demand for the criminalisation of dowry death and domestic violence was a culmination of all these struggles ending successfully in the enactment of Indian Penal Code, 1860,s. 498A in 1983, s. 304B in 1986 and corresponding provisions in the Indian Evidence Act, 1872. The criminalisation of domestic violence in the form of ss. 498A and 304B (dowry death) sought to increase the certainty and severity of legal responses, thereby correcting historical, legal, and moral disparities in the legal protections afforded to abused women. At present, there is no specific legislation in India to deal with sexual harassment of women at workplace. The Sexual Harassment of Women at their Work Place (Prevention) Bill, 2006 is pending approval from both the houses. The bill once passed aims at providing legal protection to women at workplace against any kind of sexual harassment ranging from staring to rape.
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the Supreme Court has laid down in the case of Vishaka vs. State of Rajasthan AIR 1997 SC 3011 are to be followed. These guidelines encompass a comprehensive definition of sexual harassment, directions for establishment of a complaint mechanism and the duty under which employers are obligated to obviate any such act.
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Likewise, State to ensure the provision for just and humane condition of work and maternity relief. The fundamental duty on every citizen to renounce the practices derogatory to the dignity of women, Subject to the constitution parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. The Parliament is vested with the power of making laws for the whole or part of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body etc.
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All these provision are providing protection to the women but still there is need of new enactment. And it is the initiative by the Indian government by enacting such legislation and there is no doubt to say that this Act is constitutionally valid per se. with this discussion it is clear that this Act is constitutionally valid and therefore passed by the parliament of India.
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In Aruna Parmod Shah v. Union of India, WP (Crl.) 425/2008, High Court of Delhi, (Decided on 07.04.2008) A mother-in-law sought to quash proceedings initiated against her under the Act. She challenged the constitutionality of the Domestic Violence on two grounds first, the gender-specific nature of the Act, by excluding men, is arbitrary and, hence, violates Article 14 of the Constitution; and second, the placing of near or like marriage status (relationships in the nature of marriage) at par with married status in Section 2(f) of the Act leads to the derogation of the rights of the legally-wedded wife. The gender-specific nature of the Act was held to be a reasonable classification in view of the object that the Act seeks to achieve and, hence, was held to be constitutionally valid. The Court rejected the second contention by saying that there is no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his common law wife or even as a 2/20/2012 21 mistress.
The court opined that, like treatment to both does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a live-in relationship is invariably initiated and perpetuated by the male.
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Similarly in Dennison Paulraj and Ors. v. Union of India and Ors., WP No.28521 of 2008 and M.P.No.1 of 2008, High Court of Madras, (Decided on 03.04.2009) a writ petition was filed by the husband and his family members challenging constitutionality of the Act and alleging that the proceedings initiated in the lower court was a complete abuse of process of law. The main grounds of challenge were first, the Act violates Articles 14 and 21 of the Indian Constitution as the law does not permit a husband to file an application against the wife; second, sections 4, 12, 18, 19, 23 and 29 of the Act were challenged as providing preferential treatment to the wife and hence, affecting the right to life and liberty of the husband and his relatives; and section 23 in particular was challenged as arbitrary and conferring unrestricted powers on the Magistrate. It was argued that special protection provided to women is intelligible differentia and hence, the gender-specific nature of the Act does not make it 2/20/2012 23 unconstitutional.
The Madras High Court held however that when the Constitution itself provides for making special provision for women, the contention that there could be no special treatment for women cannot be accepted. The court highlighted the fact that the Act was enacted as a special legislation for women in keeping with Article 15(3) of the Constitution. It was also pointed out that this provision on special measures has been widely used to enact legislations and executive orders for women and the courts have upheld their validity. The Madras High Court went on to cite several judgments of the Supreme Court where sex was held to be a sound classification under Articles 14 and 15. Hence, this writ petition was dismissed by the court.
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PROTECTION OFFICER
Chapter three of the THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 defines the powers and duties of protection officers. Section 8 states appointment of protection officer which states Appointment of Protection Officers.(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act. (2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed. (3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may 2/20/2012 25 be prescribed.
This section empowers the State Government to appoint, by notification in the Official Gazette, such number of Protection Officers in each District as it considers necessary and also to notify the area in which such Protection Officer shall exercise the powers conferred and discharge the duties imposed under the Act. It also provides that the Protection Officers shall, as far as possible, be women and shall possess such qualifications and experience as may be laid down by the Central Government, by rules. The terms and conditions of service of the Protection Officer and the other officers subordinate to him may also be regulated by rules.
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Section 9 of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 states the duties and powers of a protection officer, which states that: Duties and functions of Protection Officers.(1) It shall be the duty of the Protection Officer(a) to assist the Magistrate in the discharge of his functions under this Act; (b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area; (c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, 2/20/2012 27 claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987 ) and make available free of cost the prescribed form in which a complaint is to be made; (e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate; (f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated; (g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place; Milan Kumar Singh S/o Rajendra Singh and Rajendra Singh S/o Gulab Singh v State of U.P. and Smt. Swapnil Singh S/o Milan Kumar Singh
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(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974 ); (i) to perform such other duties as may be prescribed. (2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
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This section lays down the duties and functions of the Protection Officers. The Protection Officer may assist the Magistrate in the discharge of his functions under the Act, make a domestic incident report to the Magistrate, make an application to the Magistrate if the aggrieved person so desires praying for issuance of a protection order, ensure legal aid to the aggrieved person under the Legal Services Authorities Act, 1987, maintain a list of service providers, make available a safe shelter home if the aggrieved person so requires, get the aggrieved person medically examined if she has sustained bodily injuries, ensure that the order for monetary relief under section 20 of the Act is complied with and executed in accordance with the provisions of the Code of Criminal Procedure, 1973, and perform such other duties as may be laid down by the Central Government, by rules. It also stipulates that the Protection Officer shall be under the control and supervision of the Magistrate and perform the duties assigned to him by the Magistrate and the Government by or under the Act.
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Section 4 of the act defines information to the protection officer, which states Information to Protection Officer and exclusion of liability of informant.(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer. (2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub- section (1).
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Section 33 deals with if protection officer fails to discharge his duties, act states: Penalty for not discharging duty by Protection Officer.- If any Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. This section provides that any Protection Officer who fails or refuses to discharge his duties as directed by the Magistrate in the protection order shall be punished with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both.
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Section 34 deals with the Cognizance of offence committed by Protection Officer, which states No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it in this behalf. Protection officers have certain which powers with them like as mentioned in section 35 of the act Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.
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The Court held that section 17(1) of the Act entitles the wife to claim a right to reside in the shared household only when the house is joint family property. Here, the property did not belong to the husband, the husband did not pay rent, and the house was not joint family property. Therefore, the Court vacated the injunction, thus permitting the womans in-laws to evict her from the home if they so desired.
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Vandana v. Mrs. Krishnamachari & Ors. 2007) 6 MLJ 205 A suit for permanent injunction filed by the wife restraining the respondents from dispossessing her, the Madras High Court provided a broad interpretation to shared household and domestic relationship as defined under Section 2(s) and Section 2(f) of the PWDVA, respectively. The respondent-husband contested the right of the aggrieved wife to reside in the shared household under Section 17 of the PWDVA because the parties had not lived together in the shared household for even a single day after their marriage. The parties disputed even the very fact of marriage. The Court, upholding the right of the aggrieved wife to reside under Section 17, held that she has a de jure right to live in the shared household because of her 2/20/2012 39 status as a wife in the domestic relationship.
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Dismissing this contention, the High Court of Madras held that the ratio laid down by the Supreme Court in S.R. Batra v. Taruna Batra could not be applied to the instant case as the facts clearly demonstrated that the husband, with the intention of defeating the rights of the wife, had transferred the household into the name of his mother, after the matrimonial dispute arose. In arriving at its conclusion, the Court recognised the fact that, before the wifes dispossession, both parties resided jointly in the said household.
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Conclusion
The Service Provider is entrusted with the responsibility to record domestic incident report and get aggrieved person medical aid, legal aid and shelter. The Service Provider should be a registered organization as per Section 10(1) of the Act. The Protections Officers are to be attached with the Magistrates of the courts for the area notified for each protection officer. Therefore, the Protection Officers are required to function from all the district Courts and needs a premises within the court. For effective implementation, they need to be provided with vehicles for spot visits and making reports, staff to assist in maintaining records and corresponding with the aggrieved person, furniture and fixtures for establishing the office. The implementation of the Act provides for effective coordination and correspondence between Protection Officers, Police aggrieved persons and her family/relatives, district court, there is likely to be a number of cases being registered under the Act. This also requires a great coordination and monitoring among all these stakeholders as all the actions have to be reported within the specified time .
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Although the rules of the Act provide for appointment of Protection Officers only, there is requirement of a monitoring authority/officer in view of the volume of work in each case, and the number of cases likely to be registered under the Act. Accordingly, it is proposed that a Chief Protection Officer may also be appointed for addressing all the requirements under the scheme for implementation of Protection of Women from Domestic Violence Act 2005. The Chief Protection Officer can function from office in Head Quarters of Department of Social Welfare.
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