This article is co-authored by Priyanka Chauhan
In this article we will discuss the domestic violence act, need, meaning, and discover a few topics such as jurisdiction of the domestic violence act, applications, relief, appeals, and sorts.
“If all men are born free, how is it that all women are born slaves?”Mary Astel: Some Reflections upon Marriage (1706 ed.)
Domestic violence and abuse can happen to anyone, regardless of size, gender, or strength, yet the problem is often overlooked as widely the victims are women. The right to be safe and live free from violence is a fundamental human right but all people are not lucky enough to enjoy this right. Home is considered as the safest place to dwell but not always.
There are situations where violence creeps into homes and makes life miserable. The violence within the home is known as Domestic Violence. Violence against women and girls is a global epidemic that kills, tortures, and maims them physically, psychologically, sexually, and economically and hence a need for the special statues was felt.
What was the need for The Protection of Women from Domestic Violence Act, 2005?
Although Section 498A of The Indian Penal Code, 1860 dealt with the punishment of husband or relative of the husband of a woman subjecting such a woman to cruelty, there was no recourse available to a woman after she was left on the road as the Indian Penal Code did not define domestic violence. Hence there was a need for a consolidated law to protect women from domestic violence. Therefore the Protection of Women from Domestic Violence Act, 2005 was enacted in order to provide for the protection of women facing abuse from the family members, The Protection of Women from Domestic Violence Act, 2005 was enacted.
Protection of Women from Domestic Violence Act, 2005
The Protection of Women from Domestic Violence Act, 2005 (No. 43 of 2005) was enacted in 13th September 2005 and came into force from 26th October 2006. It contains 5 Chapters and 37 Sections.
The law first time in itself provides the definition of “domestic violence” with this definition being broad including not just physical but also verbal, emotional, and economical as defined. The Protection of Women from Domestic Violence Act, 2005 is a civil law meant primarily for issuing protection orders and not for criminal prosecution.
It, inter alia, provides various definitions, legal recourse to lodge complain and remedies available to a woman. The Act is aimed at providing immediate support to women facing domestic violence.
What is Domestic Relationship?
Domestic Violence is the violence or abuse faced by a woman with whom she has been in a domestic relationship. To understand Domestic Violence, it is important to understand what Domestic Relationship means.
Domestic Relationship is defined in Section 2(f) of The Act’. It reads as
“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
Who can claim relief under Domestic Violence Act?
Any woman who is facing violence in a domestic relationship living in a shared household.
Consanguineous Relationship- It means family members who are connected through blood relations; such as mother-sons, sisters-brothers, father-daughters.
Marriage– such as wife, daughters-in-law, sisters-in-law, widows, etc.
Other Relationship- through adoption or other relationships in the nature of marriage.
What is a shared household?
As defined in Section 2(s) of The Act, “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
What is Domestic Violence?
Domestic Violence includes injury or harm to the life, health, safety, or well-being of the aggrieved woman by committing physical, verbal, economical or sexual abuse. It also includes injury to the aggrieved woman or her relative in order to coerce her or any other person to meet the dowry demand or any other valuable property.
The legal definition of Domestic Violence as defined in The Act is mentioned in Chapter II, Section 3 of The Act. It reads as:
-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or
(b) harasses, 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; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.-For the purposes of this section,-
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation, and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes-
(a) insults, ridicule, humiliation, name-calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes-
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts, and circumstances of the case shall be taken into consideration.
Can a minor apply for reliefs under the Act?
Yes, a minor can claim relief under the Act Section 2 (b) defines the term ‘child’, “a child means any person below the age of eighteen years and includes any adopted, step or foster child.”
The mother can make an application on behalf of the child. In cases where the mother makes an application for her relief, the child can be made a co-applicant.
Who can be the Respondent?
Respondent is defined in Section 2(q) of The Act. A Respondent is an adult male with whom the aggrieved has been in a domestic relationship. Respondents can be a husband or a male partner or his relatives. Relatives also include female relatives.
Can a mother-in-law claim relief against the daughter-in-law as per The Act?
No, a mother-in-law can not claim relief against the daughter-in-law as per The Act (section 2(q). However, in cases where the mother-in-law is facing violence at the hands-on son and daughter-in-law, she can file an application against her son and daughter-in-law as abetting the acts of the son.
What are the different authorities a victim can approach?
A victim can approach a Protection Officer or a Service Officer under the law or she can approach the police through a FIRST INFORMATION REPORT (FIR) or register a complaint with the magistrate directly.
A Protection Officer is the outreach officer of the Court, who can help a woman in making complains, filing applications before the Magistrate for orders, help her in getting support like medical aid, counseling, and making sure the orders of the Court are enforced. Protection Officer is defined in Section 8 and 9.
Service Provider is an NGO or any other voluntary association registered with the State Government.
They provide assistance and support to the women facing domestic violence. A victim can make a complaint in the registered service provider and they will provide legal aid as well as medical aid and counseling.
Application to the Magistrate
An application regarding domestic violence can be presented to the Magistrate seeking one or more reliefs as mentioned in the sections by:
The aggrieved person;
Protection Officer on behalf of the aggrieved person;
Any other person on behalf of the aggrieved person
Reliefs available to the victim
Protection Order (Section 18): Through the Protection Orders, Magistrates orders the respondent to prohibit the commission or aiding or abetting the commission of acts of domestic violence; prohibit entering the place of employment or if the victim is a child then the child’s school; prohibit any kind of communication; alienating any assets or bank account held together; prohibiting violence to the relatives of the victim or any other acts not specified in the Act.
Residence Order (Section 19): A Residence Order may be passed by the Court if the victim feels she may be thrown out of the house or in cases where she has been thrown out but wants to return to the house. In cases where a woman does not feel safe with the husband, an order may be passed to remove the husband from the shared household.
Monetary Relief (Section 20): This order can be sought to meet any expenses that the victim faced while facing violence e.g. medical bills, etc… A married woman or a female partner can also claim maintenance
Custody Order (Section 21): A victim can ask for temporary custody order of her children. This is to prevent the victim from being separated from her children.
Compensation Order (Section 22): A Compensation Order can be asked for by the woman for mental and physical injuries sustained.
Interim/ Ex parte Order (Section 23): An interim order may be passed by the Court after the initiation of the proceedings and before the pronouncement of final judgment. This is to ensure that women are protected while the proceeding is going on.
Section 24 of Act states that the Order copies to be given free of cost to the parties.
Alteration of Exparte orders
Section 25 of the Act states that Duration for an alteration of orders i.e the exparte orders modification can be sort in 3 days.
Relief in other suits of a similar nature can be sort:
Section 26 of the Act states that a relief that is claimed under this Act can be sort in another civil suit as well. The party claiming the relief has to mention that a similar relief has been sort.
Section 27 of the Act deals with Jurisdiction with regards to the filing of the Complaint. The Complaint can be filed in the court whose Jurisdiction the Residence of the victim or the respondents reside of the or place of the act.
Section 29 of the Act deals with Appeals. It states that the aggrieved party has to file an appeal in sessions court within 30 days from the order.
Section 30 of the Act states that the Protection officers have to be Government employees
SANDHYA WANKHEDE vs. MANOJ BHIMRAO WANKHEDE
(Criminal Appeal No. 271/2011)
This issue has often remained a controversial one as Section 2(q) of Domestic Violence Act defines “respondent” as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
In view of the definition of the term respondent covering the adult male person, the judiciary has time and again been confronted with the argument that an aggrieved person can file complain under the Domestic Violence Act against an adult male person only and not against the female relatives of the husband i.e. mother-in-law, sister-in-law.
However, the Supreme Court in the aforementioned case put to rest the issue by holding that the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore, complaints are not just maintainable against the adult male person but also the female relative of such an adult male.
SABITA MARK BURGES vs. MARK LIONEL BURGES
( Writ Petition No. 4150/2013)
Under Section 19 (1) (b) of the Domestic Violence Act order can be passed directing the Respondent to remove himself from the shared household. Thus, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household.
In this case, the Bombay High Court held that no matter that a man may alone own a particular house, he has no right to be violent against his wife or the woman he lives with and if the Court sees any violence he must be restrained from entering upon the residence essentially to secure the wife and children against further violence and similar disputes.
The object behind the enactment of Section 19 of Domestic Violence Act – In Sabita Mark Burges case, the Bombay High Court very succinctly explained the object behind residence order as-
It is common observance that the applications for grant of injunction in respect of the residence and possession of the respondent are essentially seen by Courts upon the proprietary rights of the parties. Since in most cases wives do not own matrimonial homes, they are statutorily given rights therein which were not given to them by Courts under the principles of common law so that they have a right to peaceful enjoyment of their matrimonial home. Section 19 of the Domestic Violence Act came to be enacted in the first place granting essentially the wives/women peace against domestic violence in their residence, their title notwithstanding. This statutory grant is upon the sublime principle of human rights prevailing over proprietary rights. It may bear repetition to state that both are equally entitled to the said flat unless one of them is violent.
MEENAVATHI vs. SENTHAMARAI SELVI
( CRL O.P. (Md) No. 12092 of 2008)
The Proviso to Section 19 clearly states that no order under Section 19 (1) (b) of the Domestic Violence Act can be passed against any person who is a woman.
In this case, it was held that in the guise of passing an order under Section 19 (1) (b) of Domestic Violence Act, such women members of the family cannot be directed to be removed from the shared household.
A similar observation was made by the High Court of Madras in the case of Uma Narayanan vs. Mrs. Priya Krishna Prasad, ( Criminal Original Petition No. 9277/2008) wherein the Court observed that under Section 19 (1) (b) of Domestic Violence Act the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household. While enumerating the directions that could be passed under Section 19 (1) (b) of Domestic Violence Act and with particular reference to the direction that could be issued under Section 19 (1) (b) of Domestic Violence Act the said proviso has been incorporated just to protect the interest of a woman member of the family who is living in such a shared household. Such a provision in the proviso has been incorporated only for the aforesaid limited purpose. In a shared household which may belong to a joint family women members may also be living and in the guise of passing an order under Section 19(1) (b) of the Act, such women members of the family cannot be directed to be removed from the shared household but such a direction can be issued only against male members.
V.D. BHANOT vs. SAVITA BAHNOT
(SLP ( CRL.) No. 3916/2010)
In the case, the Apex Court upheld the Delhi High Court’s view that “even a wife who had shared a household before the Domestic Violence Act came into force would be entitled to the protection of the Domestic Violence Act.
Hence, the Domestic Violence Act entitles the aggrieved person to file an Application under the Act even for the acts which have been committed prior to the commencement of the Domestic Violence Act
MOHD. ZAKIR vs. SHABANA & ORS.
( Cri Appeal No. 926/2018)
In this very interesting case of 2018, the High Court of Karnataka held that a petition under the Domestic Violence Act by the husband or an adult male can be entertained. To arrive at its decision, the High Court placed reliance on Supreme Court’s judgment in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora, wherein the Supreme Court while striking down a portion of Section 2 (a) of the Act (defining “aggrieved person”) on the ground that it is violative of Article 14 of the Constitution of India and the phrase “adult male” as appearing in Section 2(q) of the Act stood deleted.
In view of the aforesaid ruling of Apex Court, the High Court opined that If the said sub-section is read after deleting the expression ‘adult male’, it would appear that any person, whether a male or female, aggrieved and alleging violation of the provisions of the Act could invoke the provisions under the Act.
In that view of the matter, the petitioner’s complaint could not have been trashed on the ground that the Act does not contemplate provision for men and it could only be in respect of women.
However, the aforesaid verdict of High Court passed by Justice Anand Byrareddy was later on withdrawn by him when an Advocate opposed the verdict alleging that the Supreme Court’s verdict in the Hirala Harsora case had been wrongly interpreted by the Judge.
INDIRA SARMA vs VKV SARMA
(Criminal Appeal No. 926/2018)
In this case, the Supreme Court held that ‘Not all live-in relationships are relationships in the nature of marriage.’
Guidelines for testing the concept of live-in-relationship
- Duration of relationship
- Shared household
- The pooling of resources and financial arrangements
- Domestic arrangements
- Sexual relationship
- Socialization in public
- Intention and conduct of the parties.
LALITA TOPPO vs. STATE OF JHARKHAND & ANR
( Criminal Appeal No. 2656/2013)
In this recent case, the Supreme Court has categorically held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.
The Bench explained that the provisions contained in Section 3(a) of the Domestic Violence Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as domestic violence. The Court further opined that under the provisions of the Domestic Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.
KAMLESH DEVI vs JAIPAL & ORS.
( SLP No. 34053/2019)
The Supreme Court has held that a mere vague allegation is not sufficient to bring the case within the domestic violence act.
Facts: The petitioner claimed that she and respondents are the family members of the same family and have been living in the same premises. The husband of the petitioner is retired from BSF and she has three daughters, namely, Urmila, Anusaya, and Gaytri. Anusaya and Gaytri are unmarried daughters of the petitioner and have been going to Krishna Nagar College for their study.
Further respondents have made a gang and are quarrelsome persons and whenever daughters of petitioner i.e. Anusaya and Gaytri went to their college, respondents Jaipal, Krishan Kumar and Sandeep followed them and teased them and also did obscene activities.
The husband of the petitioner Sube Singh also made a complaint to Sarpanch of Village Gaud against the respondents then in the presence of respectable persons of the village, the respondents also apologized in writing on 5.8.2008.
Thereafter, they remained normal for some time but afterward again started those obscene activities. Hence, finding no other alternative for protection from domestic violence, the complaint has been filed.
Trial Court after discussing the provisions of the Act found that none of the witnesses on record has established any fact to the effect that the respondents and the petitioner have been living in a shared household and the respondents have caused domestic violence upon them.
The trial court also held that no violence whatsoever has been alleged of any kind within the premises of the shared household. Ld. Magistrate dismissed the case. Appeal filed before the High Court also got dismissed.
Left with no alternative, the petitioner approached the Supreme Court which also declined to give any relief observing:
“The High Court has rightly found in effect that the ingredients of domestic violence are wholly absent in this case. The petitioner and the respondents are not persons living together in a shared household. There is a vague allegation that the respondents are family members. There is not a whisper of the respondents with the petitioner. They appear to be neighbors. The special leave petition is dismissed”.
BINITA DASS vs UTTAM KUMAR
(CRL REV P. 659/2017)
The High Court of Delhi in a case held that “Magistrate cannot deny interim maintenance to a wife only because she has earning capacity or is a qualified person”.
Facts: Petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with the application had filed an interim application under Section 23 seeking interim maintenance. Said application has been rejected by the Trial Court by order solely on the ground that the petitioner and respondent are equally qualified and petitioner was previously employed and has not disclosed any cogent explanation or disability on her part so as to disable her to earn her living.
The High Court observed, “Clearly both the Trial Court as well as the Appellate Court have erred in not appreciating the judgments of this Court wherein it has specifically been held that capacity to earn and actually earning are two different things”.
The High Court then observed and held “It is not the case of the respondent, that petitioner is actually employed or earning. The only ground taken is that she is qualified and capable of earning………. Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income”.
KULDEEP SINGH vs. REKHA
(Civil Writ Petition No. 10403/2010)
Madhya Pradesh High Court has held that if wife and husband live the share households to establish their own household, the domestic relationship comes to an end in respect of parents, and therefore complaints under DV Act cannot be maintained against them.
In this case, the court held that after the marriage, the wife came to her matrimonial house situated at Gwalior and resided with the family members of her husband. It is stated that in the year 2011 her husband got a job at Treasure Island, Indore, and in the year 2012 her husband moved to Delhi and they started living there.
When they were living at Indore and Delhi, applicant No.2 and 3 came there and demanded Rs.22, 00,000/- and harassed her. It is alleged that the applicant No.2 and 3 used to visit Indore and Delhi and they reiterated the respondent No.1 with regard to dowry.
The wife filed a complaint under the Domestic Violence Act against several persons including her husband and his mother & father.
When the matter reached the High Court, it observed: “The aforesaid documents clearly established that after some time of the marriage, respondent No.1 and her husband moved out joint family and established their own households at Indore and Delhi”.
It further observed “In this regard, the provision of the Domestic Violence Act is to be taken into account. Under the Domestic Violence Act, the first per-condition is that the applicant must be an aggrieved person is a person defined in Section 2(a) of the Act. The domestic relationship must be there between the aggrieved person and respondent to invoke Domestic Violence Act”.
Finally, the High Court quashed the case against parents-in-law by saying “This Court has carefully gone through the complaint preferred under Section 12 of the DV Act, and in the considered opinion of this Court, that in the present case, after some time of the marriage the respondent goes with her husband leaves the share households to establish their own households at Indore and Delhi, and as a result domestic relationship comes to an end, therefore proceedings based upon the complaint initiated in the matter pending before the Judicial Magistrate, First Class- Indore is not maintainable against the applicant No.2 to 8 and deserves to be quashed”.
KUSUM SHARMA vs. MAHINDER KUMAR SHARMA
(FAO 369 OF 1996 Decided on 14/1//2015)
The Delhi High court has stated that “the affidavit of assets, income, and expenditure of both the parties are necessary to determine the rights of the parties and hence it is essential that both parties on sworn affidavits file the same before the court so as to pass orders regarding monetary reliefs”
Domestic violence amid COVID 19
The National Commission for Women reported that from February 27 to March 22 a total of 396 offences related to women were reported, out of which 123 were domestic violence cases. The National Commission for Women on 17th April said that the number of domestic violence cases has continued to surge. It has received 587 distress calls or complaints between March 23 and April 16 out of which 239 are domestic violence cases.
Smt. Rekha Sharma, the Chairperson of NCW in a webinar hosted by the Association of ILI Alumni and Indian Law Institute, said that the number of cases received from March 21 to June 7, the no of cases the NCW has received is 1665.
In order to record who needs legal aid during the lockdown, NALSA has documented cases including domestic violence, the number of cases as reported by NALSA is:
Andhra Pradesh: 1