Sexual Violence in the Domestic Space is an oft-forgotten and rampant area of sexual violence. It is here that sexual violence also finds cover under the law, marital rape in India being explicitly legal. While some lawyers have tried to use IPC section 354 (Assault or Criminal Force to a Woman with intent to Outrage her Modesty) and IPC 377 (Unnatural Sex – the same law that criminalizes homosexuality) in case of marital rape, there hasn’t been any conviction in such a scenario. Invariably domestic sexual harassment victims either use IPC 498A (Cruelty towards a Married Woman) or the Protection of Women from Domestic Violence act, 2005, to get justice. While the husband is exempt from IPC 375 dealing with rape, his relatives are not.
How is Cruelty towards a Married Woman defined under Section 498A of the IPC?
This section deals with cruelty towards a married woman either by her husband or her husband’s relatives. Here cruelty is defined as “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman” and cruelty also includes harassing the woman to obtain property or a valuable security from her or her relative. Section 498A is often used to file complaints about sexual harassment by the husband and his relatives.
The punishment for crimes under 498A may extend upto 3 years of imprisonment and also a fine.
What is the law regarding sexual intercourse between a husband and wife when they are living separately?
As per IPC 376B, a man cannot have sexual intercourse without the consent of his wife if she is living separately from her husband whether under a court order or otherwise. If he does so he faces a minimum jail time of 2 years which may go up to 7 years and he will also be liable to pay a fine.
The Protection of Women from Domestic Violence Act, 2005 (PWDV)
What is Domestic Violence under this Act?
Domestic Violence under this law includes various forms of abuse and violence. It includes physical, sexual, verbal, emotional and economic abuse; whether directed at the wife or at any relative(s) of the wife, with a final purpose or without one. Not doing of certain things that ought to be done can also constitute as Domestic Violence.
How is sexual abuse defined under this Act?
It defines sexual abuse as, “sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman. Since this law includes sexual abuse, it is often used to safeguard women against sexual harassment in the domestic space. It is a civil law and its main goal is to protect the woman facing domestic violence (aggrieved party) and not criminally prosecute the offender (respondent) unless the respondent violates protection orders of the magistrate. This law is not just for the benefit of women in marriages but also for women in live-in relationships.
What are the duties of police officers, Protection Officers, service providers or Magistrates in cases of Domestic Violence?
Whenever police officers, Protection Officers, service providers or Magistrate’s either witness an act of domestic violence or receive a complaint, it is their duty to inform the victim about:
- The availability of service providers for shelter and medical help;
- The availability of Protection officers;
- Their right to free legal service;
- Their right to file a complaint under section 498A of the IPC; and
- Their right to seek a protection order, compensation order, monetary relief, custody or residence order from the magistrate.
Who is a protection officer? What is the role of the protection officer?
The protection officer is appointed by the state government to help enforce the PWDV act. As far as possible the officer is supposed to be a woman. The protection officer receives the complaints and files the report which is submitted to the magistrate, the officer helps the victim get medical help and also controls the shelter homes. The officer enforces the orders of the magistrate and makes sure that they are carried out properly.
What is the role of the service provider and shelter homes?
Any company or voluntary organization providing legal, medical, financial or any other support to women must register as a service provider with the state government. The service provider has the power to file the domestic incident report at the victim’s request, examine the medical situation and provide medical help through medical facilities and shelter through shelter homes with the assistance of the protection officer.
What is the process of filing the complaint?
Anyone can give information to the protection officer about domestic violence without any civil or criminal liability. The protection officer, who is appointed by the state governments, can order shelter homes to house the aggrieved person and medical facilities to provide Medical help to the aggrieved. The magistrate should take up the case within 3 days of filling and should endeavour to dispose of the case within 60 days from filing. The magistrate may recommend counselling to the aggrieved and the respondent, either jointly or separately, the next hearing date should be within 60 days. If either the magistrate deems it necessary or at the request of either party the proceedings are held in camera.
What does a protection order under the PWDV Act include?
After the preliminary hearing if the magistrate is satisfied with the domestic violence allegation, then they can issue a protection order. The protection order includes the following instructions:
- Prohibiting the respondent from committing any act of domestic violence or assisting in any act of violence against the aggrieved; or
- Prohibiting the respondent from entering the workplace of the aggrieved; or
- Prohibiting attempting any contact whatsoever, whether in written form or oral form, in person or on the phone, with the aggrieved; or
- Prohibiting the respondent from alienating the aggrieved from using any assets, bank lockers, bank accounts, held either jointly or separate without the court’s permission; or
- Prohibiting violence against relatives of aggrieved.
If the respondent violates the protection order he can be jailed for up to 1 year or fined Rs. 20,000 or both.
What does a residence order under the PWDV Act include?
If the magistrate is satisfied that domestic violence has taken place he can issue a residence order:
- Restraining the respondent from dispossessing the aggrieved from the shared household even if she doesn’t have a right on the title of the house; or
- Instructing the respondent to leave the house; or
- Restraining the respondent and his relatives from entering the portion of the house where the aggrieved person resides; or
- Prohibiting the respondent from renouncing his right in the shared household without the court’s permission; or
- Instructing the respondent to provide the aggrieved a similar level of accommodation as enjoyed by the respondent and paying rent for the same; or
- Instructing the respondent to return assets and property to which the aggrieved person has a right and also returning her stridhan. (jewellery, assets etc. received by her); or
- Instructing the nearest police station to provide protection to the aggrieved.
What is a compensation order? What are the provisions regarding monetary relief under this Act?
The magistrate can issue a compensation order to provide monetary relief to the aggrieved. The aggrieved is entitled to receive monetary relief for the expenses incurred due to the domestic violence including medical expenses and any evidence incurred on housing when living separately. The aggrieved is also entitled to receive monthly maintenance and child support based on the court’s decision and circumstances of the case.
What are the provisions regarding custody rights under this Act?
The court may give the custody of the children to the aggrieved and restrain the respondent from visiting the children if the court believes that to be in the best interest of the child.
What are the provisions regarding appeal under this Act?
The magistrate’s decision can be appealed in the Sessions Court within 30 days of the Magistrate’s Order.
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