How to File DV Complaint under Domestic Violence Act 2005 ?

Are you a victim of domestic violence and clueless about what to do next? Read this article to get a brief insight of all the legal steps that can be undertaken in such a situation. Domestic violence is the violent act of one spouse on another in order to gain power and control by instilling fear and subservience. Domestic violence includes harms or injuries which endangers health, safety, life, limb, or well being of women. Domestic violence does not just include physical abuse but also mental, sexual, emotional and economic abuse. 

Every Third Woman In India Suffers Sexual, Physical Violence at Home

According to the survey, 27 per cent of women have experienced physical violence since the age 15 in India. This experience of physical violence among women is more common in rural areas than among women in urban areas. Domestic violence cases, where women reported physical abuse in rural and urban areas, were at 29 per cent and 23 percent, respectively.

New Delhi: The issue of gender-based violence in India has been creeping up the policy agenda over the past couple of years. And with substantial data, it proves one thing: rampant domestic violence against women in India is a reality.

Every third women, since the age of 15, has faced domestic violence of various forms in the country, reported the National Family Health Survey (NHFS-4) released by the Union health ministry. Thus, incubating a new round of debate about the cultural underpinnings to domestic violence.

According to the survey, 27 per cent of women have experienced physical violence since the age 15 in India. This experience of physical violence among women is more common in rural areas than among women in urban areas. Domestic violence cases, where women reported physical abuse in rural and urban areas, were at 29 per cent and 23 percent, respectively.

The Protection of Women from Domestic Violence Act 2005 (PWDVA), provides a definition of domestic violence that is comprehensive and includes all forms of physical, emotional, verbal, sexual, and economic violence, and covers both actual acts of such violence and threats of violence. In addition, the PWDVA recognizes marital rape and covers harassment in the form of unlawful dowry demands as a form of abuse.

The Perpetrator At Home

Most of the times perpetrators of this violence have been the husbands. 31 per cent of married women have experienced physical, sexual, or emotional violence by their spouses. The most common type of spousal violence is physical violence (27%), followed by emotional violence (13%).

The survey reported that among married women who have experienced physical violence since the age of 15, 83 per cent reported their present husbands as perpetrators of the violence. However, for women who are not married, the experience of physical violence stems from the most common perpetrators, which includes mothers or step-mothers (56%), fathers or step-fathers (33%), sisters or brothers (27%), and teachers (15%).

However, the most worrying part of the spousal-violence is that almost every third married women, who has experienced spousal violence, reported experiencing physical injuries, including eight per cent who have had eye injuries, sprains, dislocations, or burns and six per cent who have had deep wounds, broken bones, broken teeth, or any other serious injury. Yet, only 14 per cent of women who experienced this violence sought help to stop it.

But the helplessness of stopping the violence being inflicted on them isn’t the only worrying factor. Women in India, surprisingly, are supportive of domestic violence.

Data from the survey shows women in India between the ages of 40 to 49 were most supportive of domestic violence, with 54.8% in agreement. The percentage justifying abuse is marginally lesser among younger women. 47.7% of girls between the age of 15 and 19 agreed with violence by husbands.

This marginal difference in attitudes of women towards domestic violence is also visible in urban and rural areas. While 54.4% of rural women surveyed across the country agreed with domestic abuse, only 46.8% of urban women supported such violence.

Sexual Violence: The Elephant In The Room

Sexual rights are a serious concern for Indian women. Validating this concern, six per cent of women in India and reported to having experienced sexual violence in their lifetime.

Among married women who were victims of sexual violence, over 83% reported their present husband and 9% report a former husband as the perpetrators. The form of sexual violence most commonly reported by women was that their husband used physical force to have sexual intercourse when they did not want to (5.4%). About 4% reported that their husband forced them with threats or in other ways to perform sexual acts they did not want to, and 3% reported that their husband forced them to perform other sexual acts they did not want to.

Husbands and wives being out of the purview of rape laws enables men to ‘prey’ on women in the security of her home. These statistics give a clear indication of the kind of sexual harassment and violence young girls and women face in India.

The scenario for unmarried women is no different. The survey report highlighted that most common perpetrators of sexual violence on unmarried women were other relatives (27%), followed by a current or former boyfriend (18%), their own friend or acquaintance (17%) and a family friend (11%).

Sexual violence is most often committed by individuals with whom women have an intimate relationship. Physical violence and Sexual violence may not occur in isolation; rather, women may experience a combination of different types of violence,” the survey report said.

IRONICALLY, India is one of the 36 countries where marital rape, the act of sexual intercourse with one’s spouse without the spouse’s consent, is still not a criminal offence.

Section 375 of the Indian Penal Code (IPC) considers forced sex in marriage as a crime only when the wife is below age 15. Marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA) for relief. The PWDVA, which came into force in 2006, outlaws marital rape. However, it offers only a civil remedy for the offence.

The Way Ahead

Human Rights Watch (HRW) in its November 2017 report found out that sexual harassment victims in India face significant barriers to obtaining justice and critical support services. The report, Everyone Blames Me’: Barriers to Justice and Support Services for Sexual Assault Survivors in India, found that women and girls who survive rape and other sexual violence often suffer humiliation at police stations and hospitals.

Under Indian law, police officers who fail to register a complaint of sexual assault face up to two years in prison. However, Human Rights Watch found that police did not always file a First Information Report (FIR), the first step to initiating a police investigation, especially if the victim was from an economically or socially marginalized community.

Most of the domestic violence, sexual violence, and marital rape cases in India are also never reported. Going by the pure numbers, these cases are grossly under-reported when comparing the National Family Health Survey and the National Crime Records Bureau (NCRB) data.

Lack of trained counsellors who can help domestic abuse victims and little access to legal aid also adds to the misery of these victims.

Education Makes A Difference

Irrespective of all the abuse meted to women at their homes, there still is a silver lining.

The main distinguishing factor in acceptance of domestic violence is education, much more than income, or even age. The report stated that experience of domestic violence, including physical and sexual violence decreases sharply with schooling and education.

By schooling, the percentage of women who report physical violence declined from 38 per cent among women with no schooling to 16 per cent among women with 12 or more years of formal education.

Similarly, experience of sexual violence decreases sharply with schooling from eight per cent among women with no schooling to three per cent among women with 12 or more years of schooling. Education does, however, not automatically translate in a lower incidence of domestic violence.

 

In India, more than 55% of the women suffer from domestic violence, especially in the states of U.P., M.P. and other Northern states. According to United Nation Population Fund Report, around two-third of the married Indian women are victims of domestic violence attacks. However, most of the women prefer staying with her husband and tolerating the abuse in the interest of their children. While few others resist from filing the case as they do not want to get involved in long legal proceedings either due to financial disability or because of the fear of undergoing public shame and scrutiny. As a result, most of the cases of domestic violence go unreported. 

However, it is very important to raise your voice against this gruesome act of the husband or his relatives rather than quietly enduring it. The offence of domestic violence is covered by both- section 498a of the Indian Penal Code, 1860 and by the Domestic Violence Act, 2005. However, both these provisions treat only the women as the victim and not the man in a relationship. Hence, only woman can seek relief through it. Before we delve into how you can file a domestic violence case in India, let’s understand what is domestic violence? 

What is considered as domestic violence under law?

Domestic violence as defined under section 3 of the Domestic Violence Act, 2005 includes:

Any kind of harm/ injury that is likely to endanger the life, health, limb and well being of  the woman whether physical or mental.

Or any harassment with a view to coerce the woman or any person related to her to meet any unlawful demand of property or security (dowry).

 

Against whom can you file the complaint?

If you are being constantly tortured and ill-treated in your matrimonial home or are undergoing mental trauma due to the acts of your in-laws, you can immediately file a legal complaint against all such people. It is a general misconception that domestic violence is “only” committed by the husband on his wife, which is untrue. A woman can file a complaint against the husband or any of his relative. A woman who is staying in a live-in relationship with a man can also file a case against him if he commits the offence of domestic violence.

 

Procedure for filing a domestic violence case 

The victim of domestic violence or any witness of the offence, on her behalf, can file an FIR/complaint with the local police officer, or the protection officer, or service provider, or directly to the Magistrate. The basic question that comes in the mind of every person filing a case is that which court should he/her approach? A domestic violence case is heard by the judge of the court within whose local limit either the victim resides or the accused or where the action has been committed. 

  1. The Magistrate shall upon receiving the complaint, commence the hearing of the case within 3 days of the complaint being filed.
  2. The Magistrate shall also give the notice of the date of hearing to the Protection officer who shall issue it to the accused.
  3. The court shall as far as possible dispose the case within a period of sixty days from the date of the first hearing.
  4. You can even request the Magistrate to conduct the proceeding in camera, i.e. you will not be required to be physically present for the hearing and the proceedings will be conducted via video conferencing.
  5. The court after conducting the hearings of the case, if satisfied that a genuine case of domestic violence was filed and the accused has actually committed the offence, can pass any of the following orders as it may consider necessary in the circumstances of the case (you can also request the court to pass any of these orders)-

 

Protection orders: Wherein the court can further restrain the accused to commit the act of domestic violence on you or any of your family members or can even disallow him/her to enter your place of employment or residence. The protection order can be claimed by you as an interim relief, i.e. before the final judgement is passed. 

Residence orders: The court, if satisfied, that you have no other place to stay or for any other reason, then it can also prevent the accused from dispossessing you from your matrimonial home and can even disallow him to enter that area of the household in which you are residing. 

Monetary relief: You can even ask the court for monetary relief from the accused in order to incur your medical expenses any other loss that has occurred to you due to the offence being committed.

Custody of the child: The court can also grant the temporary custody of the child/children to the person making the application.

Compensation orders: In addition to above-mentioned reliefs, the Magistrate may also on an application being made by you, pass an order directing the accused to pay the compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence. 

These orders will remain in force until the victim files an application in the court for its revocation. 

If the order of the court is not passed in your favour, you can also make an appeal against the order within thirty days from the date on which the order is passed.

You can file a case under section 498a of IPC 

Section 498a of the Indian Penal Code, 1860, also deals with the offence of domestic violence that provides for the punishment i.e. an imprisonment of three years or fine or both. Thus, an FIR for an offence under section 498a can be registered in the local police station of your area against the husband/his relative.

You can further consult our expert advocates & lawyer for matrimonial laws for dealing with the cases of domestic violence.