CIVIL

An Ideal Domestic Violence Statute

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In this introduction, I tried to put some basic ingredients of an Ideal Domestic Violence statute, which eventually not available or fully discussed in Indian domestic violence act 2005 (Act no 43 of 2005) .

Indian Statute is completely biased and failed to take the issue of false allegations. Again another issue could be raised regarding the Monetary relief or interim petition for monetary relief, which could easily be confused with maintenance proceeding under matrimonial act or u/s 125 of the Criminal Procedure Code. The cause of action for asking monetary help by a women should be distinguished .

But Indian experience law application has been confusing and overlapping. Therefore multiplicity of proceeding against husband became reality. And more horrible part of the law is that there is no effective redressal against false acquisition.   This article shall provide fair criticism of the law and would adopt a balance treatment towards the both gender.

True to be said that Indian women are till weak even after 60 years of getting Independence but the approach of law nonetheless shall be biasless.

  1. Meaning of domestic violence and its scope

Domestic violence means any unlawful act, omission or behaviour which results in death or the direct infliction of physical, sexual or mental injury to any complainant by a respondent and includes the following—

       (a)   physical abuse;

       (b)   sexual abuse;

       (c)   emotional, verbal and psychological abuse;

`     (d)   economic abuse;

       (e)   intimidation;

        (f) harassment;

       (g)   stalking;

       (h)   malicious damage to property;

(i)   forcible entry into the complainant’s residence where the parties do not share the same residence;

(j)   depriving the complainant of or hindering the complainant from access to or a reasonable share of the use of the facilities associated with the complainant’s place of residence;

(k)   the unreasonable disposal of household effects or other property in which the complainant has an interest;

(l)   abuse derived from the following cultural or customary rites or practices that discriminate against or degrade women—

(i)   forced virginity testing; or

(ii)   female genital mutilation; or

 (iii)   pledging of women or girls for purposes of appeasing spirits;or

 (iv)   forced marriage; or

(v)   child marriage; or

(vi)   forced wife inheritance; or

(vii)   sexual intercourse between fathers-in-law and newly married daughters-in-law;

(m)   abuse perpetrated on the complainant by virtue of complainant’s age, or complainant’s physical or mental incapacity;

(n)   abuse perpetrated on the complainant by virtue of complainant’s physical, mental or sensory disability, including a visual, hearing or speech functional disability;

(o)   abuse perpetrated on the complainant by virtue of complainant’s mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind;

(p) any act of domestic violence described in paragraphs (a), (b), (c), (e), (f), (g), (h) or (i) when it is perpetrated on the person or property of the complainant’s representative.

(2)  For the purposes of—

       (a)   subsection (1)(a), “physical abuse” includes any act or threatened act of physical violence towards a complainant;

       (b)   subsection (1)(b), “sexual abuse” includes any conduct that humiliates, degrades or otherwise violates the sexual integrity of the complainant;

       (c)   subsection (1)(c), “emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a complainant, including but not limited to the following—

                  (i)   repeated insults, ridicule or name-calling; or

                 (ii)   repeated threats to cause emotional pain; or

(iii) the repeated exhibition of obsessive possessiveness which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security; or

(iv)   any act, omission or behaviour constituting domestic violence as defined in subsection (1) which, when committed in the presence of minor members of the family, is likely to cause them mental injury;

 (d)   subsection (1)(d), “economic abuse” includes—

                  (i)   the unreasonable deprivation of economic or financial resources to which a complainant is entitled under the law or which the complainant requires out of necessity, including household necessities, medical expenses, school fees, mortgage bond and rent payments, or other like expenses;

                 (ii)   denying the complainant the right to seek employment or engage in any income-generating activity;

(e)   subsection (1)(e), “harassment” means engaging in a pattern of conduct that induces in a complainant the fear of imminent harm or feelings of annoyance and aggravation, including—

 (i)   watching or loitering outside or near the building or place where the complainant resides, works, carries on business, studies or happens to be;

 (ii)   repeatedly making or sending or causing another person to repeatedly make or send abusive phone calls or electronically-transmitted messages to the complainant, whether or not conversation ensues;

 (iii)   sending, delivering or causing the delivery of offensive or abusive letters,  telegrams, packages, facsimiles, electronic mails or offensive objects to the complainant;

(f)   subsection (1)(f), “intimidation” includes uttering or conveying a threat or causing a complainant to receive a threat which induces a fear of imminent harm in the complainant;

(g)   subsection (1)(g), “stalking” includes following, pursuing, or accosting the complainant.

(3)  For the purposes of  subsection (2)(e) and (f) “imminent harm”, in relation to a complainant, includes harm that the complainant fears to be imminent taking into consideration the history of respondent’s known violent behaviour towards the complainant or other relevant factors.

2. Determination of application if Domestic Violence

(1)  The court shall as soon as possible consider an application made in terms of section 12  and may for such purposes—

 (a)   enquire whether an interim protection order or protection order has at any time been issued to either of the parties;

 (b)   call for such evidence, whether oral or by affidavit, as it considers necessary, including medical evidence:

Provided that any such medical evidence shall be supported by a police report forming the basis on which an examination of a victim of domestic violence was made;

 (c)   examine any witness before the court.

(2) Where the inquiry provided for in subsection (1)(a) reveals that there is an existing interim protection order or protection order the court shall—
(a) consider whether there is any change in circumstances that warrants the granting of a fresh protection order; and
(b) where appropriate, direct the parties to make application under section 12.

3. Issue of interim protection order
(1) Where, upon an application made in terms of section 23 ( or such type of provision), the court is satisfied that prima facie—
(a) the respondent has committed, is committing or is threatening to commit an act of domestic violence; and
(b) it is necessary or desirable to issue immediately an order to protect the complainant from serious or substantial harm or discomfort or inconvenience, whether physical, emotional or economic, which results or may result from such actual or threatened domestic violence;
the court shall issue an interim protection order against the respondent notwithstanding that he or she has not been given notice of the application or has not been before the court.
(2) An interim protection order may, where appropriate, contain any direction, prohibition or award which may be contained in a protection order issued in terms of relevant Provision.
(3) An interim protection order must be served on the respondent in the prescribed manner and must contain a notice calling upon the respondent to show cause, on a date specified in the order, why a protection order should not be issued.
(4) Whenever a court issues an interim protection order the court shall issue a warrant for the arrest of the respondent which shall be attached to the order and which shall be suspended on condition that the respondent complies with the order.
(5) Where upon an application made in terms of section 23 the court is satisfied that, prima facie, the respondent has committed, is committing or threatening to commit an act of domestic violence but that the circumstances do not justify or require the issue of an interim protection order, it may issue a notice calling upon the respondent to show cause why a protection order should not be made.
(6) An interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or a notice issued in terms of subsection (5) shall be served upon the respondent as soon as possible by any police officer:
Provided that, where the complainant so requires, service may be effected, at the complainant’s expense, by the messenger of the court or deputy sheriff, as the case may be.
(7)  The court that issues an interim protection order shall supply the complainant or the complainant’s representative with a certified copy of any interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or notice issued in terms of subsection (5), and, additionally or alternatively, forward the same to the police station nominated by the complainant or the complainant’s representative.
(8) An interim protection order shall remain in force until it is replaced by a protection order or varied or revoked by a competent court.

(9) Any person who fails to comply with the terms and conditions of an interim protection order shall be guilty of an offence and liable to a fine  or imprisonment or to both such fine and such imprisonment

4. Application for revocation, variation or extension of protection orders

(1)  Where there is a change of circumstances, a complainant, complainant’s representative or respondent may apply to the court for the revocation or variation of an interim protection order or a protection order or for the extension of any time limit attached to any direction or award contained therein.

(2)  A complainant’s representative may, with the leave of the court, apply for a revocation, variation or extension of a protection order without the consent of the complainant and the court, in determining whether or not to grant leave, shall have regard to all the circumstances including those referred to in section 7(2).

(3)  A complainant’s representative shall not, under any circumstances, make an application for a revocation, variation or extension of a protection order that may prejudice the complainant

(4) An application under subsection (1) or (2) shall be lodged with the clerk or registrar of the court who shall—
(a) fix a date for the hearing of the application; and
(b) place the application before the court as soon as possible, and in any event not later than forty-eight hours after lodging the application; and
(c) give notice of the date of hearing to other interested parties.
(5) On the date fixed for the hearing of the matter, the court shall consider the application and may for that purpose—
(a) call for such evidence, whether oral or by affidavit, as it considers necessary;
(b) examine any witness before the court.
(6) If the court is satisfied that good cause has been shown it may revoke or vary any interim protection order or protection order or may extend any such order by a period not exceeding twenty-four months.
(7) The  court shall give notice to interested parties of any revocation, variation or extension granted in terms of this section.

5. Filing false complaint and affidavit

 (1)  Any person who makes any false statement in any application or affidavit made in terms of this Act, knowing such statement to be false or not believing it to be true, shall be guilty of an offence and liable to a fine  or imprisonment five years or to both such fine and such imprisonment.

(2)  Where any offence other than one referred to in this Act is committed by a respondent upon a complainant during or in furtherance of the commission any act of domestic violence, the court convicting the respondent therefor shall regard such circumstances as aggravating when assessing the sentence to be imposed.

(3)  For the avoidance of doubt it is declared that the prosecution of a respondent under this Act or any other law shall not prevent the complainant from seeking protection and redress in terms of Domestic violence Act.