The Domestic Violence (Prevention & Protection) Act 2010: Rights & Remedies
In accordance with the Constitution of Bangladesh, it has been certain that all citizens of Bangladesh are equal before the law and are entitled to protection of law (Art: 27) Moreover, it is also mentioned that women shall have equal rights with men in all spheres of the State and of public life (Art: 28(2)).
Though there are clear provisions of the supreme law of the land yet women do not receive the desirable fair treatment. In fact, in the day to day life of a women and children in their family are often ill-treated and left without remedies as most of them are dependent on the other family member for their day to day life needs. Therefore, a woman or child can easily be a victim of domestic violence through physical or psychological abuse, sexual exploitation or economic abuse are also very common within the family. To solve these problems and to rescue the vulnerable woman and children the government of Bangladesh has enacted the domestic violence (prevention and protection) act, 2010 and tried to provide some remedy to the victims.
What is Domestic Violence?
According to Section 3 of the DVPP Act, 2010 Domestic Violence might take place physically, psychologically, sexually and economically against any woman or child by any family member with whom the victim has a family relationship;
We can arrange them categorically for better understanding
- Physical Abuse: physical abuse includes the conducts which cause or has the possibility to cause damage or injury of the victim’s life, health or any organ and her safety. To force or provoke the aggrieved party to commit any offence will be also considered as physical abuse.
- Psychological Misconduct: Psychological misconduct will encompass (i) verbal abuse, insults, neglect, threat or any utterance that lead to mental disturbance, (ii) harassment or (iii) interference on the individual’s mobility, communication or self-expression.
- Sexual Exploitation: Sexual exploitation that is any kind of treatment of sexual nature which hampers respect, honor or dignity of the victim.
- Economic Abuse: Economic abuse which covers;
- Deprivation of any economic or financial resources or property to which the aggrieved party is entitled under any law or custom or by order of any Court or any competent authority,
- Not to provide daily necessities,
- Prohibiting the victim from her legal rights over dower or any considerations from marriage or any other allowance or gifts,
- Transferring without the consent of the victim or preventing her from applying legal rights over her assets whether moveable or immovable,
- Prohibiting the victim from her legal rights to continue the access to properties or facilities on which she is entitled by virtue of the family relationship.
The Procedure to follow under The Domestic Violence Act
A victim can get aid under this Act going through the following procedure; The aggrieved/victim or on her behalf anyone (can be an Enforcement officer, a service provider) can apply for remedy in any Court under whose jurisdiction the applicant or respondent resides or the place where the domestic violence occurred or where the victim temporarily resides. After receiving the application the Court shall set a date for hearing within 7 (seven) working days. Upon receipt of the application if the Court satisfied that there has committed or possibility to commit or abet to commit any domestic violence then an ex-parte interim protection order can be issued.
Later on, the Court considering the application can issue orders namely protection order, residence order, compensation order, custody order and in all cases the order passed by the Court under this Act shall be given to the applicant party, the officer in charge of the concern police station, the Enforcement office and if applicable, any service provider. Under Chapter- 5 of the Act, the Court shall dispose of every application under this Act from the date of issuance of notice within a period of 60 working days and if it is not disposed within the specified time due to unavoidable reasons then the period can be extended gradually to 15 days and again if not disposed then 7 days however the reasons should be informed in writing to the Appellate Court. Even if the concerned Court again fails to dispose of the case within the last specified time then the Appellate Court can transfer the case to another appropriate Court and this Court will dispose of the case from the stage where it was pending.
How the Trial is going to be held?
Any application or trial or any proceeding under this Act, according to the Chapter- Five, shall be tried by a First Class Magistrate or Metropolitan Magistrate as the case may be and in granting compensation order the Judicial Magistrate or the Metropolitan Magistrate shall have no pecuniary jurisdiction. For disposal of any application or trial or any proceedings under this Act, the provisions of the Code of Criminal Procedure and especially the provisions of summary trial under Chapter XXII of the CrPC shall be applicable. Under this Act the trial can take place in camera either with the consent of the parties or the Court can with its own motion if necessary. Even the order issued by the Court shall be served to the parties according to the procedure under the CrPC by the process server of the Court or police officer or the Enforcement Officer within 3 working days.
Now if the respondent is absent during trial though he is notified then the Court can dispose of the case ex parte. On the other hand, if the complainant is absent then the Court may reject the application but if the complainant again applies within 30 days of such rejection and if the Court considers that there were valid grounds then the case can be revived.
For the purpose of the DVPP Act, 2010, under section 28, the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall be determined as the Appellate Court. The aggrieved party can file an appeal against any order under the Act within 30 working days from the date of passing of the order and the appeal shall be disposed of within 60 working days. It is to be noted that without any valid reason the appeal shall not be transferred more than once.
The Victim’s Rights
Well, the rights which one can obtain being a victim of domestic violence has been discussed in Chapter 4 of the DVPP Act, 2010. According to the Act the victim or on her behalf anyone (can be an Enforcement officer, a service provider) has the right to apply for remedy in any Court under whose jurisdiction the applicant or respondent resides or the place where the domestic violence occurred or where the victim temporarily resides and after receiving the application the Court shall set a date for hearing within 7 working days.
In spite of all due to family relationship the victim shall have the right to reside in the shared residence. She can also by order, appearing with Enforcement officer, can enter the shared residence for collecting personal belongings, medical, educational and professional records, passport, cash money, jewellery, mobile, bank account and income tax documents and other documents and valuables.
The Court’s Powers & the Remedies
Now the question is, to what extent the victim will get a remedy? it has been figured in the Chapter- Four of the DVPP Act, 2010 conforming to the Court’s power. The Court has the power in favor of the victim to issue an ex-parte interim protection order if upon receiving the application prima facie it is satisfactory that the respondent has committed or has possibility to commit or abet any domestic violence and also a show cause notice to the respondent to reply with reasons within 7 working days that why permanent protection order shall not be issued against him.
After the hearing case if the Court satisfied that domestic violence has taken place or likely to take place may issue a protection order in favor of the victim and also an order restraining the respondent from committing any domestic violence, aiding or abetting any domestic violence, prohibiting from entering any workplace, any business or educational institution or any other institution where the victim generally visits, restraining from contacting with the victim personally or through written, telephone, mobile phone, email, or any other means of communication, detaining from inducing any violence to the dependents or relatives of the victim or any other person who aided the victim to protect from the domestic violence or any other act as the Court thinks necessary.
Moreover, based on the application the Court may issue orders on dwelling that is to say restricting the respondent from residing, visiting or dispossessing the shared residence of the victim and even in case of using vehicle which generally used by victim, the respondent may be directed to let her continue using; to make settlement for a safe shelter for the victim and her children with her consent under the supervision of the Enforcement officer and circumstantially the respondent can be directed to settle alternate accommodation and also pay rent for the victim. Moreover, the Court can, for the time being, evict the person against whom the order is made if it is necessary to ensure the victim’s safety. And also the Court can execute a bond with or without sureties that the respondent or his family member won’t commit any further domestic violence. However, no order shall be made which affect any title or interest of the person against whom the order is made.
If the victim is injured physically, mentally and economically or there is damage of the moveable and immovable property of the victim then she can apply for compensation and then the Court will dispose of the application within 6 months after hearing of the parties. Based on the actual loss or damage considering the nature and effect and also cost of such physical or mental injury, the amount and value of the moveable or immovable property that has been transferred, destroyed or damaged the Court can pass an order for compensation in favour of the victim. Additionally, an order may be passed for adequate and reasonable maintenance of the victim and her child. Subsequently, the Court can grant an order for temporary custody of the victim’s child or children to her or to someone on behalf of her.
Offences & Punishments
Under Chapter- Six of the Act there has been stated about the offences and punishments. The offences committed under the Act shall be cognizable, bailable and compoundable. Now if the respondent breach the protection order under this Act then it will be considered as an offence and he shall be punished with imprisonment which may extend to 6 months or fine which may extend to 10 thousand Taka or both and in case of repetition of the same the punishment shall be imprisonment which may extend to 2 years or fine which may extend to 1 lakh Taka or both.
However, if the Court thinks fit then instead of passing order of sentence against the respondent, may pass an order to carry out various community welfare services and the responsibility and supervision may be vested upon any institution or organization. any income gained by such services the respondent may be liable to pay such portion to the aggrieved party as the Court thinks fit. Lastly one of the important points is that if any person to cause loss to any other person, makes a complaint knowing that there is no legitimate reason to file such application then shall be punished with imprisonment which may extend to 1 year or fine which may extend to 50 thousand Taka or both.
Although it has been defined about the rights and remedies under the DVPP Act 2010 that the victim of domestic violence can get but still many of them do not get proper remedies. Due to several reasons like lawyers are not pursuing these kinds of cases as it is not cost effective, not enough budget from the government in this sector, lack of management for victim’s shelter, superstitious society and so on, the Act is still not progressive. It is a matter of fact that many of them even do not know that there is a specific law through which being a victim of domestic violence one can get relieves.