Although the family is the smallest unit in society, any conflict within it affects society too. When considering family conflicts, the term “Domestic Violence” is much talked about.
Domestic violence can be defined as violation of peace by domestic abuse or some other maltreatment at the matrimonial home.
Violence often occurs from husband to wife and sometimes vice versa. Domestic violence which may also affect children takes multiple forms including physical, verbal, emotional, economic, religious, reproductive and sexual abuse.
Taking into account the situation in Sri Lanka, various laws have been introduced to prevent or at least to minimise domestic violence related incidents and to initiate legal action.
The relevant laws are set out in the Prevention of Domestic Violence Act No. 34 of 2005.
Measures to be taken
If any person is a victim of domestic violence, they can lodge a complaint with the Police and seek an application to the Magistrate’s Court within the relevant jurisdiction to issue a “Protection Order” under Section Two of the Domestic Violence Act.
Through the issuance of such an order, the person who is or may be subject to domestic violence, will be protected from the defendant. Usually, the defendant would be prohibited from entering any premises where the victim permanently or temporarily resides.
In addition, they can also make an application to the court as a personal complaint through an Attorney.
When the victim is a child, the request can be made by one of the child’s parents’, guardian, a resident of the victim’s place of residence or by a person authorised by the National Child Protection Authority (NCPA).
An affidavit of a person who is aware of the violence should be submitted in support of the application and after considering the application and when deemed necessary, the court would issue an “Interim Protection Order” to the respondent until the case is heard.
However, it is noteworthy that the court would issue an Interim Protection Order only if the court is satisfied after examining the available evidence.
In the process, the court would take into account the urgency and the need to ensure the safety of the victim.
This may prevent domestic violence related incidents perpetrated by the respondent.
Also, in both cases that has already been mentioned (Issuance of an Interim Order and Protection Order), the court shall, in accordance with Section Four of the Domestic Violence Act, fix a date for the hearing not exceeding 14 days since the date of request.
A social worker or family counselor would be instructed to consult the parties after the issuance of an interim protection order.
At the same time, the court would direct a social worker, family counselor, probation officer, family health worker, or children’s rights promotion officer to submit a report on whether the order is being implemented from the day the request is heard.
Following the issuance of Interim Protection Order to the respondent, the court would direct them to make excuses for not having done so.
Even if the respondent does not appear in court, the request should be considered in terms of Section Seven of the Domestic Violence Act.
After considering the evidence, a protection order would be issued under Section Eight of the Domestic Violence Act.
This order is immediately made available to the respondent by the fiscal or authorised officer.
A copy is given to the victim and the Officer in Charge (OIC) of the Police area where both parties reside.
In case if the respondent is unreachable, the order would be affixed in front of his/her residence and it would be considered to have been handed over in terms of Section Four of the Domestic Violence Act.
Under Section 13 of the said Act, the court has the power to issue any order with the consent of the parties, without proof of guilt or without acknowledgment of guilt.
The court also entertains the power under Section 10 of the Domestic Violence Act to give effect to the order issued in this manner for a period not exceeding 12 months.
Section 17 of the Act reserves the right to appeal to the High Court if any party is dissatisfied with the order given by the Magistrate.
Prohibitions
Section 11 of the Domestic Violence Act facilitates prohibitions that may be contained in an interim order or a protection order.
The section states that the court may additionally, by using an interim order or protection order limit the respondent from getting into a house or any detailed element thereof, shared by the aggrieved person and the respondent, coming into the aggrieved man or woman’s residence, location of employment or college.
The respondent would be restricted from getting into any refuge in which the aggrieved character may be briefly accommodated, preventing the aggrieved individual who primarily lives or had lived in a shared residence from entering or last inside the shared house or a detailed part of the shared house and occupying the shared residence.
Supplementary Orders
Also, if the Court is satisfied under Section 12 of the Domestic Violence Act, it may issue a Supplementary Order with the Protection Order; thereby ordering the Police to seize any weapons that may be in the possession of the respondent; ordering the Police to go somewhere with the victim to assist in the collection of personal property of children born to both parties, assigning the respondent and the victim to attend psychiatric clinics or other forms of rehabilitation, ordering that a social worker, a family counsellor, a probation officer, or a family health worker monitor the protection order between the two parties and submit a report to the court once every three months, ordering that when the respondent has a duty to assist a person, they should provide immediate financial assistance to such a person or ordering that the respondent should make the necessary payments and facilities to enable the aggrieved party to remain in a certain place during the period of execution of the order.
The court has to ensure that the rights of a person are not by the Maintenance Act No. 37 of 1999 when ordering the above Five and Six. If the respondent fails to make the above payment, the court may order the respondent’s employer to pay the said amount or part thereof directly to the aggrieved party.
Variation or revocation of a Protection Order
According to Section 14 of the Domestic Violence Act, on the aggrieved person’s or respondent’s application, a Protection Order may be amended, modified, varied, extended, or cancelled, if the Court is satisfied that there has been a change of circumstances that necessitates such alteration, variation, extension, or revocation.
However, no such adjustment, modification, variation, extension, or revocation shall be done without both the aggrieved person and the respondent having being heard.
And also, the Court would not approve such an application to the aggrieved party unless the Court is satisfied that the application is brought freely and willingly.
Punishment
Section 18 emphasises that if a respondent who has been served with an Interim Order or a Protection Order fails to comply they are guilty of an offense and are liable on conviction after a summary trial before a Magistrate to a fine not exceeding Rs. 10,000 or to imprisonment of either description for a term not exceeding one year, or to both.
Section 20 of the Act states that any person who prints or publishes the name of an applicant or a respondent in an application under this Act; or any matter other than a judgment of the Supreme Court or Court of Appeal, concerning any court hearing under this Act, in any Court, shall be punished with imprisonment of either description for a term that may extend to two years or a fine of either description or both fine and imprisonment.