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Content of post-hearing orders for protection

Legislation on the contents of orders for protection should describe a wide range of remedies to ensure safety and assistance to complainant/survivors. Because the violence is connected with demands for goods and cash, an order for protection in dowry-related violence should also address this economic component. The order should prohibit the violent offender and his relatives from alienating or disposing of dowry and any assets and property enjoyed, used or held by the offender and/or the survivor. The order should prohibit the husband and his relatives from making any explicit or implicit dowry demands of the survivor or her parents.

Legislation should ensure that orders for protection inform the complainant/survivor of criminal and civil remedies, including tort laws on compensation, in addition to the order for protection. See: The UN Model Framework, 3.10.2.

Legislation on orders for protection should allow relief based on what the court deems necessary in order to protect the safety of the complainant/survivor or the family of the complainant/survivor.  See: the Domestic Violence Act (1998) of  Guyana, (hereinafter law of Guyana) Part II 7 (f); the Domestic Violence Act (2006) of Zimbabwe, (hereinafter law of Zimbabwe) Section 11, (1) (i).

Example:  The law of Namibia states that, when determining the contents of a protection order, a court must consider, among other factors, the history of domestic violence by the respondent towards the complainant and the complainant’s perception of the seriousness of the respondent’s behavior. These factors may be important predictors of serious harm to complainant/survivors. Part II 7 (4) (a) and (d).

In addition to allowing courts to consider a history of domestic violence, laws should ensure that courts may consider any correlating history of dowry demands by the offender and his relatives, all dowry and gifts from the bride’s family to the offender or his relatives from before, at and after the wedding, and, where applicable, the registered list of gifts from the bride’s family to the offender or his family.
(See: Lethality or risk assessments; Registration of Gifts)

Legislation should contain provisions which prohibit the violent offender and his relatives from further violence or from threatening to commit further violence, from contacting or going near the complainant/survivor and her dependents, from accessing the family home, and from possessing or purchasing a firearm or acid.

Example: On Measures Against Violence in Family Relations (2006) of Albania (hereinafter law of Albania), in which content of orders for protection includes the following provision on firearms:

g) ordering the law enforcement officers to seize any weapons belonging to the perpetrator, found during police checks, or ordering the perpetrator to surrender any weapons belonging to them; Ch III, Article 10, 1 (g)

The law of Guyana contains the following provision on the content of orders for protection:

6. (1) Subject to this Act, a protection order may-
(a)
prohibit the respondent from being on premises in which a person named in the order resides or works;

(b) prohibit the respondent from being on premises that are the place of education of a person named in the order;

(c) prohibit the respondent from being on premises specified in the order, being premises frequented by a person named in the order;

(d) prohibit the respondent from being in a locality specified in the order;

(e) prohibit the respondent from engaging in harassment or psychological abuse of a person named in the order;

(f)  prohibit the respondent from speaking or sending unwelcome messages to a person named in the order;

(g) direct the respondent to make such contribution to the welfare of a person named in the order as the court thinks fit;

(h) provide for custody and maintenance of children;

(i) prohibit the respondent from taking possession of specified personal property, being property that is reasonably used by a person named in the order;

(j)  direct the respondent to return specified personal property that is in his possession or under his control which belongs to a person named in the order;

(k) prohibit the respondent from causing another person to engage in the conduct referred to in paragraph (e), (f) or (i);

(l) specify conditions subject to which the respondent may be on premises or in a locality specified in the order;

(m) direct the respondent to do or to refrain from doing any other act or act which the court in the circumstances of the case considers relevant;

(n) provide that the respondent seek appropriate counseling or therapy from a person or agency approved by the Minister, by notice published in the Gazette.

(2)  The court may make an order that includes a prohibition of the kind referred to in subsection (1)(a) or (i) notwithstanding any legal or equitable interests the respondent might have in the property comprising the premises or in the property to which the prohibition of the kind referred to in subsection (1)(i) relates.

Legislation should also include provisions which make it possible for a complainant/survivor to live independently from the abuser. Such provisions include granting the court or the police the authority to order the use of an automobile or other personal effects to the complainant/survivor. Legislation should allow courts to be able to order financial assistance in the form of mortgage, rent, insurance, alimony and child support.

Laws should allow courts to prohibit the violent offender from alienating or disposing of dowry and any assets and property enjoyed, used or held by the offender and/or the survivor. Courts should also have the authority to prohibit the husband and his relatives from making any explicit or implicit dowry demands of the survivor or her parents.

The law of India contains the following provision:
Monetary relief.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-

(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. Ch. IV, 20

Legislation should include provisions which consider medical bills, counseling or shelter fees.

Examples:

India: The Magistrate Court in India ruled on an appeal by a husband and his family seeking reversal of the petitioner’s application under India’s domestic violence law. Her application resulted in a residence order removing the respondents from the shared household. The household, however, was in the petitioner’s mother-in-law’s name, and the respondents alleged that the residence did not constitute a “shared household” for purposes of the domestic violence law. The court, however, found that the husband transferred title of the residence to his mother’s name to defeat his wife’s right to the home. It acknowledged that both parties had lived jointly in the household prior to the petitioner’s dispossession of the home. P. Babu Venkatesh &  Ors. V. Rani, MANU/TN/0612/2008, as cited in Lawyers Collective, Staying Alive: Second Monitoring & Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005, 2008, p. 62.

 

Spain: Spain’s law requires that judges who hear Orders for Protection must receive training on issues of child custody, security, and economic support for survivors and their dependants.
(See: UN Model Framework, I 2 (k); and Role of the Judiciary, StopVAW, The Advocates for Human Rights)

Resources:

For a detailed list of legislative provisions of an order for protection, see Family Violence: A Model State Code, Sec. 204, Sec. 305, 306; and UN Model Framework, IV B. 

For an example of a form, see Family Violence: A Model State Code, Sec. 302.

The law of Philippines includes a provision that requires standardized forms for orders for protection.