Legislation

Throughout this knowledge module, reference to certain provisions or sections of a piece of legislation, part of a legal judgment, or aspect of a practice does not imply that the legislation, judgment, or practice is considered in its entirety to be a good example or a promising practice.

Some of the laws cited herein may contain provisions which authorize the death penalty. In light of the United Nations General Assembly resolutions 62/14963/16865/206, and 67/176 calling for a moratorium on and ultimate abolition of capital punishment, the death penalty should not be included in sentencing provisions for crimes of violence against women and girls.

Other Provisions Related to Domestic Violence LawsResources for Developing Legislation on Domestic Violence
Sexual Harassment in Sport Tools for Drafting Sexual Harassment Laws and Policies
Immigration Provisions Resources for developing legislation on sex trafficking of women and girls
Child Protection Provisions Resources on Forced and Child Marriage
Other provisions related to dowry-related and domestic violence laws
Related Tools

Order for Protection Remedies

Last edited: March 01, 2011

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Lawmakers should include an order for protection remedy for victims of dowry-related violence or incorporate dowry-related violence into a domestic violence framework that provides such a remedy. Many states have created order for protection remedies for complainant/survivors of domestic violence in their criminal and civil legislation.  In the criminal system, or criminal no contact orders, may provide similar remedies as the civil order for protection. The criminal no contact order may be a part of the criminal process when a violent offender is accused of a crime. (For example, see: Domestic Abuse Act of Minnesota, (1979), Minnesota, §518B.01 Subd.22.)

 

Example: In addition to enacting specific legislation on dowries, India has incorporated violence related to illegal dowry demands into its definition of domestic violence and provides an order for protection remedy. (See: Protection of Women from Domestic Violence) An earlier draft of Pakistan’s domestic violence bill had incorporated dowry demands as a form of domestic violence as “[h]arasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry; or other property or valuable security.” See: Good practices in legislation to address harmful practices against women in Pakistan, at 11 (footnote 22). The latest version of Pakistan’s domestic violence law, however, omits reference to dowry demands. Similarly, Bangladesh includes dowry deaths in the Prevention of Oppression Against Women and Children Act 2000, but does not address orders for protection in this act. Lawmakers should include violence and harassment related to dowry demands in a definition of domestic violence. See: Section on Definition of Dowry-related Violence.

 

Civil orders for protection orders can take the form of emergency or ex parte orders (temporary orders issued without notice to the defendant), which last a short time, or complainant/survivors may seek longer-term orders for protection. These longer orders can require a full hearing before a judge with the respondent present. The Domestic Abuse Act of Minnesota, USA (1979), (Minn. Stat. §518B.01 Subd.4) was among the first laws on orders for protection in the world, enacted more that thirty years ago. The order for protection remedy has proven to be one of the most effective legal remedies in domestic violence cases. See: Orders for Protection, StopVAW, The Advocates for Human Rights. Because dowry-related violence is a form of domestic violence, lawmakers should ensure that orders for protection are made available to survivors/complainants of dowry violence.

Lawmakers should consider expanding or including other types of remedies in addition to the traditional order for protection that take into account the dynamics of dowry-related violence. For example, India’s Protection of Women from Domestic Violence Act, 2005 includes an order for protection addressing the domestic violence and alienation of assets, a residence order restraining the perpetrator’s use of the shared household and directing the perpetrator to secure the victim alternate accommodation, as well as custody orders and compensation orders. Lawmakers may wish to draw upon Article 19(1)) when incorporating the remedies of a residence order in a dowry-related violence law; the residence order should authorize the judge to prohibit the perpetrator from dispossessing or interfering with the victim’s possession of the shared home, irrespective of the perpetrator’s legal interest in the home; order the perpetrator to leave the home; prohibit the perpetrator or any of his relatives from entering the shared home where the victim is living; prohibiting the perpetrator from alienating, encumbering or disposing of the shared home; prohibiting the perpetrator from repudiating his obligations to the shared home, and; order the perpetrator to pay for comparable accommodation. The law authorizes the magistrate to direct the respondent “to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to” (Article 19(8)). Legislation should use compulsory language that mandates the police to execute an order for protection.

 

CASE STUDY: Legislation should not preclude orders for protection from being passed against women. For example, in Smt. Sarita v. Smt. Umrao 2008 (1) R. Cr. D 97 (Raj), a challenge was brought under India’s domestic violence law that because women cannot be respondents, the petition against the mother-in-law should be withdrawn. The petitioner argued that she may file a complaint against relatives of her husband, and as the term “relative” is not gender-specific, may include her mother-in-law. The Rjasthan High Court found that “relative” is broad and may include all relatives, including female relatives, of the husband regardless of her sex. Nand Kishor and others vs. State of Rajasthan MANU/RH/0636/2008 and Rema Devi v. State of Kerala I (2009) DMC 297 have ruled that women can be made respondents under Lawyers Collective, India’s domestic violence law. See: Landmark Judgments & Orders (Recently Updated).

 

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