Case BriefsSupreme Court

Supreme Court: In a case where the petitioner sought recusal of Justice Dr. DY Chandrachud from hearing an application seeking recall of a previous order of which Justice Chandrachud a part of, the bench of Dr. DY Chandrachud and MR Shah*, JJ has not found any valid and good ground for recusal and has said that,

“Merely because the order might not be in favour of the applicant earlier, cannot be a ground for recusal. A litigant cannot be permitted to browbeat the Court by seeking a Bench of its choice.”

Background

The petitioner had instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act 2005 against a man with whom she had claimed to have entered into a relationship ‘in the nature of marriage’. She, however, was unable to prove this claim before the Karnataka High Court and hence, the High Court had, on July 31, 2018, noticed that,

“Domestic relationship means, the relationship between two persons who live or have at any point of time, lived together in a shared household. This concept has not been established by the petitioner.”

The petitioner, hence, instituted a case under Article 226 seeking that the decision of the Single Judge of the High Court dated July 31, 2018 “may be declared void/disabled/ recalled”.

It was her case that,

“In order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”

Order dated September 3, 2020

The Bench of Dr. DY Chandrachud and KM Joseph, JJ had declined to entertain the writ petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated July 31, 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.

It had said,

“A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”

Present order

The Court considered the following factors and dismissed the application at hand:

  • earlier one other application was filed by the petitioner to recall order dated 03.09.2020 which was dismissed.
  • order dated 03.09.2020 was pronounced after hearing the applicant.
  • earlier application for recalling of order dated 03.09.2020 was also dismissed after hearing the petitioner.

The Court also directed that the Registry shall not accept any further miscellaneous application on the subject matter of order dated 03.09.2020 or on the two orders dismissing the application for recall of the order dated 03.09.2020.

[Neelam Manmohan Attavar v. Manmohan Attavar, 2021 SCC OnLine SC 58, decided on 05.02.2021]


*Justice MR Shah has penned this judgment

Also read

Know Thy Judge| Justice Dr. DY Chandrachud

Op EdsOP. ED.

Reflection on Domestic Violence Act and Role of Judiciary

Introduction

I would like to begin the article with a quote of Justice S Rajendra Babu, the then Chief Justice of India, who in his speech on Gender Justice – Indian Perspective[1] said as follows:

“Sita was not born, but found, and after marriage, exile, agnipariksha and abandonment was her lot. Yet there is not a single temple to Sita, and Rama is adored as the ideal man — Maryada Purushottama — Adarsha Purusha. Women get nothing being Sitas. Let us look for Durga and Kali in them.”

International Documents, i.e. Covenants, Chargers, Declarations and Treaty, etc.

The United Nations developed its policy on domestic violence in 1981. Pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in the year 1976, the Convention on the Elimination of All Forms of Discrimination Against Women came into force. However, this convention did not in unequivocal terms include violence against women or domestic violence, and therefore, in 1992, a Committee on the Elimination of Discrimination Against Women was formed. United Nations’ document A/47/38 was promulgated in 1992. In 1995, at the Fourth World Conference on women in Beijing, China, the topic of domestic violence and responsibility for domestic violence was taken into account. In 2000, a special session on women was conveyed by the United Nations known as Beijing +5 which dealt with the topic of domestic violence as the focal point and it was given priority. There was a report of Radhika Coomaraswamy, belonging to Sri Lanka, who was appointed as Special Rapporteur on violence against women and her report addressed domestic violence at length and model legislation of domestic violence was included. Thus, international and regional human rights conferences directed the States to take reasonable steps to prevent violence on women and to ensure that the victim was given adequate compensation, notable conferences are mentioned herein below:

  1. Human Rights and Women – Universal Declaration of Human Rights.
  2. The United Nations Convention on the Elimination of Discrimination against Women, 1967.
  3. The United Nations Convention of the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) – Vienna Declaration.
  4. Universal Declaration of Human Rights, 1948.
  5. United Nations World Conference on Human Rights, 1993 (Vienna Declaration and Programme of Action)
  6. Convention on the Elimination of All Forms of Discrimination against Women, 1979.
  7. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

First World Conference on Women, Mexico, 1975

As early as the United Nations re-affirmed the faith in fundamental human rights, it claimed about equality, dignity and rights of women in Article 6 of Declaration of elimination of discrimination against women in 1976, advocating the principle of non-discrimination. Article 6 directs the state parties to make provisions for civil and criminal law to combat all forms of exploitation of women. Later on, immediately after six years of Convention, punishment of crime on the basis of discrimination against women was issued in the 1973 Charter. Thereafter in 1979, Convention against Elimination of All Kinds of Discrimination against Women was passed by the United Nations. Domestic violence is pre-dominating part of the human rights and is violative of human rights, and therefore, all the National Commissions for Women Act of 1996 emphasised on the protection of civil rights of women and the United Nations Charters Convention also made basis of legislative law enacted in the year 2005.

Constitution of India and Women Empowerment

In view of the rights guaranteed under Article 14, 15 and 21 of the Constitution of India to provide for a remedy under the civil law, which is intended to protect the women from being victim of domestic violence and to prevent the occurrence of domestic violence in the society, the Constitution placed a great insight and farsightedness in incorporating various provisions for safeguarding the women. The Constitution in Article 15(3) lends helping hands to the women and children by incorporating that nothing would prevent the State from legislating any provisions for women and children. This shows that Article 14 prohibits discrimination of any kind but Article 15(3) encourages the affirmative discrimination in favour of women. The constitutional philosophy has inspired bringing special legislation intended to eradicate the evil prevailing in the society. The Constitution has been interpreted by the Supreme Court of India which can be said to be bold innovation in administrative constitutional cannons in favour of the women. In a recent decision in Mangat Mal v. Punni Devi[2], the Supreme Court has taken within its compass the provisions of residence along with the maintenance. The recent decision of the Supreme Court was in State of Rajasthan v. Hat Singh[3], which prohibited “Sati”.

Reports of Law Commission of India on Violence against Women

Since 1986, the Law Commission of India has been of the view of legislating the law on domestic violence. It has suggested piecemeal amendments in different legislations like Hindu Marriage Act, 1955, Evidence Act, amendment in Code of Civil Procedure and Criminal Procedure Code and also the latest being recommending the law for Protection of Women from Domestic Violence Act, 2005.

Working of the Act

This topic would cover the provisions of the statute which is sought to be discussed namely, the definition of term “Domestic Violence”, incorporated in Section 3 of the Protection of Women from Domestic Violence Act, 2005  takes within its sweep mental or physical harassment or injury or even endangers the life of the aggrieved person and also the sexual abuse, verbal and emotional abuse and even economic abuse to the injured or anyone else related to her. It even takes within its sweep the demand for any dowry or any other property or valuable security. The definition also includes threatening by any conduct mentioned in clause (a) or (b) of the Act. The legislative intention was to stop male dominance.

Chapter 4 is the most important chapter of the Act. Section 12 empowers the Magistrate and other courts adjudicating the matter. Beginning with the application to the Magistrate, counseling as per Section 14 and the welfare expert can also be taken into confidence. The most important Section is S.17 which provides for right to residence in shared household, and therefore, the Magistrate and the court would have wide powers to pass interim orders to protect the women. However, all these are discretionary powers given to the judicial officers, and therefore, the role of Magistrate becomes very much important and the judiciary is made the custodian of the protection of the rights of the women. Section 23 is also very important as it relates to interim orders, which can be passed by the judicial officers. All these reliefs can also be collaterally agitated before the court where either other proceedings are pending and there would be in addition to and as narrated above, the rights, which are given to a destitute lady would take within its sweep, residence orders, compensation orders and other custodial orders, which would be for the benefit and the protection of the disturbed lady.

Section 29 prescribes appeals against the orders could be made within 30 days from the date of the order of the magistrate and served to the other party.

Section 31 prescribes penalty for breach of order by the respondent. Therefore, execution becomes very easy, non-cumbersome and the most important factor is that the punishment prescribed would be treated to be an offence as per Section 31 and would be non-bailable, giving sole powers to the aggrieved persons.

Critical and analytical view overview of the Act

The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora[4] has held that:

“(i) A cursory reading of the statement of objects and reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence; (ii) It is not difficult to conceive of a non-adult 16 or 17- year-old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person; (v) The impugned judgment of the Bombay High Court was set aside and it was declared that the words ‘adult male’ in Section 2(q) of the Act, 2005 will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stood deleted.”

In Krishna Bhattacharjee v. Sarathi Choudhury[5], the Supreme Court has held that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the term “economic abuse” as the provision would show, has many facets.

In Deoki Panjhiyara v. Shashi Bhushan Narayan Azad[6], the Supreme Court has interpreted and defined the object of the Protection of Women from Domestic Violence Act, 2005, Section 12 vis-a-vis Hindu Marriage Act, 1955, Section 11. In this case, on application, interim maintenance was granted by Trial Court, affirmed by Sessions Judge and against which, writ was filed by husband before High Court and also revision application by husband that the marriage between the appellant and the respondent was null and void. The High Court held that the appellant was not the legally wedded wife of the respondent and she was not entitled to maintenance granted by the learned lower courts. The Supreme Court on appeal by the appellant-wife held that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court, it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all the benefits and protection available under the Domestic Violence Act, 2005 and held that the interference made by the High Court with the grant of maintenance in favour of the appellant was not justified and, hence, the Supreme Court had set aside the order of High Court.

The Supreme Court also held that if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra, the respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a “relationship in the nature of marriage” would be justified. In the absence of any valid decree of nullity or the necessary declaration, the Court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance.

This view is too harsh on the husband where courts have held the women not to be legally wedded wife. The decision of the Supreme Court requires rethinking.

The Supreme Court in S.R. Batra v. Taruna Batra[7] has held that a wife can seek alternative accommodation for the said accommodation can be sought from the husband but not the relative of the husband. The said decision has been reconsidered and a different view has been there by the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja[8], wherein the view has been that the wife can claim even from the other members of the family and directed the Trial Court rather the Family Court to proceed further and decide the same. The reason for discussing this judgment goes to show that the Court once again interpreted the statutory scheme of the protection of women from Domestic Violence Act, 2005. The Court has felt that there is rampant violence to the women and the remedies were limited before 2005. The Supreme Court in the latest decision of Satish Chander Ahuja case[9] has enlarged the scope of matrimonial home. The decree of the Trial Court was set aside by the High Court and the order was remanded for fresh adjudication. The author has been very critical about remand of the matters but this was a case which was arisen from interim relief. A reference to the judgment in Neelam Gupta v. Mahipal Sharan Gupta[10], goes to show that in the matrimonial matters, the Court has held that women would be entitled to a shared residence in lieu thereof husband should provide her with a suitably reasonable accommodation. The protection order was granted but disposed of way back on 17-6-2008 by Mahila Court. The Supreme Court disposed of the appeal with certain directions as the matter was mediated and the parties have decided to part away by filing a petition under Section 13-B of the Hindu Marriage Act. This shows that mediation is an alternative remedy applicable to such litigation also. The decision of the Supreme Court in Aishwarya Atul Pusalkar v. Maharashtra Housing & Area Development Authority[11] goes to show that the Court has interpreted the term “shared household” and by alienating any immovable assets would defeat right of a victim lady which would be described as domestic violence. The Court again reiterated and directed the lower courts to take proper decision as the lady was permitted to retain the possession of the residential accommodation and pay the rent and the Housing Board was directed not to disturb her residence.

It goes without saying that in Shyamlal Devda v. Parimala[12], the Court has once again reiterated that provisions of Section 482 of CrPC can be invoked for quashing the complaints under the Domestic Violence Act. The person aggrieved has been explained and the maintainability of the complaint makes it clear that domestic violence complaint can be lodged or filed in the Court where the person aggrieved permanently or temporarily resides or carries out his business or is employed. Objections, so as to challenge the jurisdiction of the Metropolitan Court of Bangalore, were turned down against the husband and parents-in-law.

Recently in P. Rajkumar v. Yoga[13], the overlapping of Section 125 Cr.P.C with Domestic Violence has been considered which has been reiterated by the Supreme Court in Lalita Toppo v. State of Jharkhand[14]. The Supreme Court has laid down the guidelines for determining compensation in matrimonial cases in recent decision in Amarendu Jyoti v. State of Chhattisgarh[15]. Thus, it goes to show that the courts have been zealous in interpreting the Act so that the object is satisfied.

Also refer to Saraswathy v. Babu[16], Indra Sarma v. V.K.V. Sarma[17], Rupali Devi v. State of U.P.[18], Ajay Kumar v. Lata[19], Sangita Saha v. Abhijit Saha[20], Reema Aggarwal v. Anupam[21], and Madhu Kishwar v. State of Bihar[22] and Hira Lal v. State (Govt. of NCT) Delhi[23]; these judgments dealt with Dowry Prohibition Act, 1986. This was the time when the Supreme Court proved that the law was inadequate.

All these decisions are related to domestic violence. As mentioned earlier, judgment of the  Supreme Court holding that the wife would have the right of maintenance which would partake even it the right to residential home.

Any other related points

This law works in addition to other laws and does not make the existing pre-2005 legal regime redundant. Instead, it recognises the need for relief to be granted as a basic minimum to provide women with a violence-free space from which they can negotiate their future from a position of equality. Hence, the nature of relief is emergency and temporary in nature; the permanent solution still remains in the realm of personal laws under which a woman would have to decide on whether or not to continue the relationship. In doing so, the PWDVA makes a first but significant step towards achieving the goal of equality.

The next question to be answered was how a woman would access these reliefs. Going to a court is a traumatic process for most people, women being no exception. In addition, there are other constraints such as stigma attached to litigating against one’s own family, the lack of wherewithal to access the courts and difficulties in getting orders enforce. It was essential to address these concerns by providing mechanisms within the law. The office of the “Protection Officer” was therefore instituted under the law. The protection officer has a twofold duty; first, to assist the woman in accessing the court and other support services (such as legal aid, medical facilities, shelter homes, etc.) and second, to assist the court during the course of the proceedings and in the enforcement of orders.

Suggestions

There appears to be wide divergence in the kind of orders that are being granted by magistrates across the States. One commonality being that the major users of the law are married women and the most commonly granted orders are for maintenance. This is perhaps due to the fact that magistrates are accustomed to granting maintenance orders under Section 125 of the Criminal Procedure Code, 1973. It is, however, heartening to note that in a number of cases, widows and aged mothers, who hereinbefore were not covered, have been able to obtain favourable orders, particularly residence orders. There are also diverse trends in the nature of the orders being claimed by women, for instance in Rajasthan, where women have mostly claimed orders for restoration into the shared household whereas in Kerala, many women have sought orders directing the men to stay away. It is, however too early to ascribe reasons behind such divergent practices.

The purpose of the Act is to give protection to the aggrieved woman from domestic violence keeping in view the intention of the legislature in passing the Act that minor procedural discrepancies do not disentitle the complainant from seeking the relief.

Conclusion

The genesis of the legislation along with the other legislations on the subject was, as can be seen necessitated by the harassment which was faced by women. At times, the maintenance would not be enough. The provision of matrimonial homes had not been discussed. The main purpose of this legislation is equality before law and equal protection of laws regardless of religion, caste, community and faith. Difficulties which arise at times with complaints under Domestic Violence Act are also felt and if the entire family is sent to jail without there being pre conciliations, the role of the Judge becomes very important so as to see that the family does not suffer what can be said to be irretrievable breakdown of marriage. The Act has been strictly interpreted recently in the judgments which are analysed by the undersigned. The provisions of Indian Evidence Act had been made applicable but the overriding effect is there, so as to give primacy to the Act. There is radical approach which is required to be taken by the family courts as they are under an obligation to see that matrimonial rights and obligations of the women are fulfilled. The jurisdictional aspect also requires to be seen as litigation under the Domestic Violence Act goes to the Magisterial Court whereas for other maintenance, divorce, restitution of conjugal rights, the parties have to go to the Civil Court or the Family Court as the case may be. This also requires to be looked into by the legislation.


* Judge, Allahabad High Court   

[1] (2002) 5 SCC J-1.

[2] (1995) 6 SCC 88

[3] (2003) 2 SCC 152

[4] (2016) 10 SCC 165

[5] (2016) 2 SCC 705

[6] (2013) 2 SCC 137

[7] (2007) 3 SCC 169

[8] 2020 SCC OnLine SC 841

[9] 2020 SCC OnLine SC 841

[10] 2020 SCC OnLine SC 422

[11] 2020 SCC OnLine SC 408

[12] (2020) 3 SCC 14

[13] 2019 SCC OnLine SC 1825

[14] (2019) 13 SCC 796

[15] (2014) 12 SCC 362

[16] (2014) 3 SCC 712

[17] (2013) 15 SCC 755

[18] (2019) 5 SCC 384

[19] (2019) 15 SCC 352

[20] (2019) 18 SCC 81 : 2019 SCC OnLine SC 559

[21] (2004) 3 SCC 199

[22] (1996) 5 SCC 125

[23] (2003) 8 SCC 80

Case BriefsSupreme Court

Supreme Court: In a bid to harmonise the competing reliefs of a daughter-in-law and her in-laws under the Protection of Women from Domestic Violence Act 2005 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, respectively, the 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that the Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent, however, the over-riding effect for remedies sought under the Senior Citizens Act 2007, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005.

Background

The spouse of the appellant purchased a property in his own name a few months before the marriage but subsequently sold it, after a few years, under a registered sale deed at the same price to his father (the father-in-law of the appellant), who in turn gifted it to his spouse i.e. the mother-in-law of the appellant after divorce proceedings were instituted by the Fourth respondent. Parallel to this, the appellant had instituted proceedings of dowry harassment against her mother-in-law and her estranged spouse; and her spouse had instituted divorce proceedings. The appellant had also filed proceedings for maintenance against the Fourth respondent and the divorce proceedings are pending. It is subsequent to these events, that the parents-in-law instituted an application under the Senior Citizens Act 2007 seeking their daughter-in-laws’s eviction from the residential house.

The appellant had asserted that she had been living in the house, as her matrimonial residence, until the application was filed. According to her, her spouse has deserted her and their minor daughter and left them in the lurch. The electricity to the premises was disconnected for non-payment of dues. She claimed that the proceedings have been utilised to secure the eviction of the appellant so as to deny her claim of a right to reside in the shared household under the Protection of Women from Domestic Violence Act 2005.

Harmonising competing reliefs under the DV Act 2005 and Senior Citizens Act 2007

Section 36 of the DV Act 2005 stipulates that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. This is intended to ensure that the remedies provided under the enactment are in addition to other remedies and do not displace them. The Senior Citizens Act 2007 is undoubtedly a later Act and Section 3 stipulates that its provisions will have effect, notwithstanding anything inconsistent contained in any other enactment. However, the provisions of Section 3 of the Senior Citizens Act 2007 giving it overriding force and effect, would not by themselves be conclusive of an intent to deprive a woman who claims a right in a shared household, as under the DV Act 2005.

“Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail.”

The Senior Citizen’s Act 2007 contains a non obstante clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise. Hence, Section 36 of the DV Act 2005, albeit not in the nature of a non obstante clause, has to be construed harmoniously with the non obstante clause in Section 3 of the Senior Citizens Act 2007 that operates in a separate field.

In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The DV Act 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, “is widely prevalent but has remained largely invisible in the public domain”. The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a penal offence out of a woman’s subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would “provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society”.

A significant object of the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household.

“Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the DV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation.”

The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the DV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed.

“Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.”

Role of Tribunals constituted under Senior Citizens Act 2007

Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly, Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry, with all powers of the Civil Courts, under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens Act 2007.

“However, the over-riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005. The DV Act 2005 is also in the nature of a special legislation, that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations, it would be appropriate for a Tribunal under the Senior Citizens Act, 2007 to grant such remedies of maintenance, as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes, such as the DV Act 2005.”

Section 26 of the DV Act empowers certain reliefs, including relief for a residence order, to be obtained from any civil court in any legal proceedings. Therefore, in the event that a composite dispute is alleged, such as in the present case where the suit premises are a site of contestation between two groups protected by the law, it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the DV Act 2005 and Senior Citizens Act 2007.

Duty of “aggrieved woman” under DV Act

Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over-ride and nullify other protections in law, particularly that of a woman’s right to a “shared household‟ under Section 17 of the DV Act 2005. In the event that the “aggrieved woman” obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007, she shall be duty-bound to inform the Magistrate under the DV Act 2005, as per Sub-section (3) of Section 26 of the DV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the DV Act 2005- of ensuring speedy relief to its protected groups who are both vulnerable members of the society, is effectively realized.

Decision on facts

A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws or that her estranged spouse is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the DV Act 2005.”

On construing the provisions of sub-Section (2) of section 23 of the Senior Citizen Act 2007, it is evident that it applies to a situation where a senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred. On the other hand, the appellant’s simple plea is that the suit premises constitute her “shared household‟ within the meaning of Section 2(s) of the DV Act 2005.

Considering the series of transactions which took place in respect of the property, the Court noticed that the fact that specific proceedings under the DV Act 2005 had not been instituted when the application under the Senior Citizens Act, 2007 was filed, should not lead to a situation where the enforcement of an order of eviction deprives her from pursuing her claim of entitlement under the law.

“The inability of a woman to access judicial remedies may, as this case exemplifies, be a consequence of destitution, ignorance or lack of resources. Even otherwise, we are clearly of the view that recourse to the summary procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared household.”

Conclusion

The Court, hence, concluded that the claim of the appellant that the premises constitute a shared household within the meaning of the DV Act 2005 would have to be determined by the appropriate forum. The in-laws i.e. the Second and Third Respondents will be at liberty to make a subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum.

The Court left it open to the appellant to pursue her remedies under the DV Act 2005. For that purpose, it would be open to the appellant to seek the help of the District Legal Services Authorities and if the appellant does so, all necessary aid and assistance shall be furnished to her in pursuing her legal remedies and rights. Further, in order to enable the appellant to pursue her remedies under the DV Act 2005, there shall be an order and direction restraining the respondents from forcibly dispossessing the appellant, disposing of the premises or from creating any right, title and interest in favor of any third party in any manner whatsoever for a period of one year, to enable the appellant to pursue her remedies in accordance with law. The appellant is at liberty to move the Court to espouse her remedies under the DV Act 2005 for appropriate orders, including interim protections.

[S. Vanitha v. Deputy Commissioner, Bengaluru Urban District, Civil Appeal No. 3822 of 2020, decided on 16.12.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here.

For Appellant: Advocate Yatish Mohan

For Respondents: Advocate Rajesh Mahale

Case BriefsSupreme Court

Supreme Court: The bench of NV Ramana* and Surya Kant, JJ has acquitted a man convicted under Section 498­A read with Section 34 IPC for the death of his brother’s wife after it was found that the case against him was not proved beyond doubt.

Allegedly, after several instances of abuse at her matrimonial home, the deceased went to live with her parents. On the fateful day, her husband came to visit her and took her for a walk but came back alone and hurriedly packed his belongings to leave. When confronted about the whereabouts of the deceased, he said   that the deceased was attending the call of nature and would be back soon. He left thereafter. When the deceased did not return after an hour, the complainant started searching for her and she was   ultimately found dead, near a canal with strangulation marks on her neck.

Deceased’s husband, Brother-in-law (the appellant herein) and Father-in-law were convicted under Section 498-A read with Section 34 IPC.

In the present appeal, the deceased’s brother-in-law contended that the prosecution story comprises of vague allegations, unsubstantiated by evidence and that the entire family has been roped in this case. Thus, the conviction of the appellant cannot be sustained.

The prosecution had alleged that the appellant in the present case, had, along with his brother and father, demanded dowry of Rs. 10,000 from the family of the deceased at the time of the vidai ceremony and had continued to harass her for the non-payment of the same.

On perusal of the testimonies of the witnesses, the Court noticed that deceased’s father had named the appellant-accused in the same breath along with other accused persons and their family members accusing them of troubling the deceased for demand of dowry of Rs. 10,000/-.

However, apart from the vague allegations, no specific instance of hostile attitude or persistent demands of dowry have been pointed out by any of the witnesses. All other independent witnesses have turned hostile and have not supported the prosecution story. Also, the paternal uncle of the deceased and a witness named in the FIR, has not supported the prosecution story.

The Court, hence, concluded that on consideration of the oral testimonies of the witnesses, the ingredients of Section 498-A IPC have not been proved against the appellant by the prosecution at the standard of beyond reasonable doubt and, hence, acquitted the appellant.

The Court also discharged the bail bonds of the appellant who is out on bail since September, 2010.

[Nimay Sah v. State of Jharkhand, 2020 SCC OnLine SC 982, 02.12.2020]


*Justice NV Ramana has penned this judgment. Read more about him here

Case BriefsForeign Courts

London High Court of Justice (Queen’s Bench): The instant high profile case of libel brought in by well known American actor Johnny Depp against The Sun newspaper, the High Court on appreciation of facts and evidences, decided to dismiss Mr Depp’s claim. Andrew Nicol, J., in his 129-page judgment, observed that, “The claimant has proved the necessary elements of his cause of action in libel; the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true”. The Court further held that, “It has not been necessary to consider the fairness of the article or the defendants’ ‘malice’ because those are immaterial to the statutory defence of truth”.

Facts and contentions

The 1st defendant is the publisher of The Sun newspaper and also the owner and publisher of the associated website www.thesun.co.uk. The claim revolves around an article first published on the website on 27th April 2018 with the headline- ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting wife-beater Johnny Depp in the new Fantastic Beasts film?’. On 28th April 2018 the headline of the website article was changed to, ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting Johnny Depp in the new Fantastic Beasts film after assault claim?”. The contents of the article on the website however remained unchanged and it was published in the hard copy edition of The Sun.

The solicitors of Mr Depp (the claimant) argued that the natural and ordinary meaning attributed to each of the articles was that – “the claimant was guilty, on overwhelming evidence, of serious domestic violence against his then-wife (Amber Heard), causing significant injury and leading to her fearing for her life”. They further argued that the publication of the articles has caused serious harm to the actor’s personal and professional reputation. Since the article was published in the backdrop of “Me Too” Movement, as a result it is likely to finish the claimant’s career.

Per contra, the defendants relied on the ‘defence of truth’ as per S. 2 of Defamation Act, 2013. As per their pleadings- ‘throughout their relationship the Claimant was controlling and verbally and physically abusive towards Ms Heard, particularly when he was under the influence of alcohol and/or drugs.’ The defendants further presented the particulars of 14 incidents in supporting their defence.

What is “defence of truth”-

While deciding the matter, the Court shed some light on the statutory defence of truth as taken by the defendants.  The ‘defence of truth’ was a common law defence to a claim for libel to prove that the libel was ‘justified’. The common law defence has now found in a statutory form under Defamation Act, 2013. Section 2 (1) of the 2013 Act makes it clear that, it is for the defendant to prove that the libel was substantially true. The burden of proof therefore rests on the defendant.  As for the standard of proof, the starting point is that these are civil proceedings and in civil proceedings the standard of proof is the balance of probabilities.  The Court observed that the points upon which they must judge the defendant’s defence are – is it more probable than not that the article was substantially true in the meaning that it bore; is it more likely than not that the claimant did what the articles alleged?

Observations and conclusion

The Court at length perused the list of incidents presented by the defendants and the claimant’s reply to them. The Court observed that a libel claimant must, in brief, prove that “defamatory material has been published by the defendant of and concerning him and in a form that has a degree of permanence”. It was stated by the Judge that, “the overall purpose of the task which is to decide whether the Defendants have proved the substantial truth of their articles in the meanings which I have found them to bear”. The Court delved into the core of the issue i.e. the dispute between Mr Depp and Ms Heard and perused the details of incidents and ongoing simultaneous court cases in other countries. The Court also considered the evidences brought in by the defendants which included photos, audio recordings and Depp’s own text messages. The Court also noted the claimant’s admission regarding long-term problems with drugs and alcohol during the trial and the impact that these allegations had on Ms Heard’s career.

After examining in detail the evidences etc. the Judge stated that the great majority of alleged assaults of Ms Heard by Mr Depp have been proved to the civil standard. The Court also disagreed with the claimant’s portrayal of Ms Heard as a “gold- digger” stating that, “There were other elements to the divorce settlement as well, but her donation of the $ 7 million to charity is hardly the act one would expect of a gold-digger.” The Judge finally concluding the judgment held that he reached these conclusions having examined in detail the 14 incidents on which the defendants rely as well as the overarching considerations which the claimant submitted.[John Christopher Depp II v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), decided on 02-11-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsSupreme Court

[Note: This report is a detailed analysis of Supreme Court’s judgment in Rajnesh v. Neha*. To read the guidelines and directions issued by the Court, click here.]

Supreme Court: The bench of Indu Malhotra** and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The directions came in a case which revealed that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.


Legislations dealing with the issue of maintenance


The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the Cr.P.C. ,1973; and the Protection of Women from Domestic Violence Act, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Further, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 , and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 by invoking Sections 24 and 25 of the said Act.

The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time frames being prescribed by various statutes for disposal of interim applications, in practice that in a vast majority of cases, the applications are not disposed of within the time frame prescribed.

Special Marriage Act, 1954

  • Section 36 of this secular legislation, applicable to all persons who solemnize their marriage in India, provides that a wife is entitled to claim pendente lite maintenance, if she does not have sufficient independent income to support her and for legal expenses. The maintenance may be granted on a weekly or monthly basis during the pendency of the matrimonial proceedings. The Court would determine the quantum of maintenance depending on the income of the husband, and award such amount as may seem reasonable.
  • Section 37 provides for grant of permanent alimony at the time of passing of the decree, or subsequent thereto. Permanent alimony is the consolidated payment made by the husband to the wife towards her maintenance for life.

Hindu Marriage Act, 1955

  • Sections 24 and 25 make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The prerequisite is that the applicant does not have independent income which is sufficient for her or his support, during the pendency of the lis.
  • Section 24 of the HMA provides for maintenance pendente lite, where the Court may direct the respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount, which is considered to be reasonable, having regard to the income of both the parties. The proviso to Section 24 providing a time line of 60 days for disposal of the application was inserted vide Act 49 of 2001 w.e.f. 24.09.2001.
  • Section 26 of the HMA provides that the Court may from time to time pass interim orders with respect to the custody, maintenance and education of the minor children.

Hindu Adoptions & Maintenance Act, 1956

HAMA is a special legislation which was enacted to amend and codify the laws relating to adoption and maintenance amongst Hindus, during the subsistence of the marriage.

Section 18 provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. She is entitled to make a claim for a separate residence, without forfeiting her right to maintenance. Section 18 read in conjunction with Section 23 states the factors required to be considered for deciding the quantum of maintenance to be paid. Under sub-section (2) of Section 18, the husband has the obligation to maintain his wife, even though she may be living separately. The right of separate residence and maintenance would however not be available if the wife has been unchaste, or has converted to another religion.

Distinction between maintenance under HMA and HAMA

  • The right under Section 18 of HAMA is available during the subsistence of a marriage, without any matrimonial proceeding pending between the parties. Once there is a divorce, the wife has to seek relief under Section 25 of HMA.
  • Under HMA, either the wife, or the husband, may move for judicial separation, restitution of conjugal rights, dissolution of marriage, payment of interim maintenance under Section 24, and permanent alimony under Section 25 of the Act, whereas under Section 18 of HAMA, only a wife may seek maintenance.

Section 125 of the Cr.P.C

The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions :

  • the husband has sufficient means; and
  • “neglects” to maintain his wife, who is unable to maintain herself.

In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.

Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application.

Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the respondent.

Protection of Women from Domestic Violence Act, 2005

The D.V. Act provides relief to an aggrieved woman who is subjected to “domestic violence.”

1.Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the right of residence in a “shared household”, irrespective of her having any legal interest in the same or not. From the definition of “aggrieved person” and “respondent”, it is clear that :

(a) it is not the requirement of law that the aggrieved person may either own the premises jointly or singly, or by tenanting it jointly or singly;

(b) the household may belong to a 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; 24

(c) the shared household may either be owned, or tenanted by the respondent singly or jointly.

2. The right to residence u/S. 19 is, however, not an indefeasible right, especially when a daughter-in-law is claiming a right against aged parents-in-law. While granting relief u/S. 12 of the D.V. Act, or in any civil proceeding, the court has to balance the rights between the aggrieved woman and the parents-in-law.

3. Section 20(1)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded under Section 125 of the Cr.P.C., or any other law in force.

4. Under sub-section (6) of Section 20, the Magistrate may direct the employer or debtor of the respondent, to directly pay the aggrieved person, or deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

5. Section 22 provides that the Magistrate may pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence perpetrated by the respondent.

6. Section 26 of the D.V. Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court.

7. Section 36 provides that the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.


Analysis of the issues


(a)Issue of overlapping jurisdiction

The Court noticed that while it is true that a party is not precluded from approaching the Court under one or more enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders. This process requires to be streamlined, so that the respondent/husband is not obligated to comply with successive orders of maintenance passed under different enactments.

“It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.”

The Court, hence, directed that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.

[Read detailed guidelines and directions here]

(b) Payment of Interim Maintenance

At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance.

“While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.”

It was hence directed that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

Apart from this the Court also directed that in the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act 1984, must make an endeavour for settlement of the disputes.

For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Section 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counsellors in every Family Court, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.

[Read detailed guidelines and directions here]

(c) Criteria for determining quantum of maintenance

The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

“The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.”

For determining the quantum of maintenance payable to an applicant, the factors which would weigh with the Court inter alia are

  • the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; etc.
  • the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living.
  • On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years as she would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job.
  • In case where the wife is working, it cannot operate as a bar from being awarded maintenance by the husband. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
  • The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed.

“Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.”

  • Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

[Read detailed guidelines and directions here]

(d) Date from which maintenance is to be awarded

Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.

The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.

[Read detailed guidelines and directions here]

(e) Enforcement of orders of maintenance

Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law.

An application for execution of an Order of Maintenance can be filed under the following provisions :

(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);

(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and

(c) Section 128 of Cr.P.C. before the Magistrate’s Court.

Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC / Cr.P.C.

Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier

Some Family Courts, however, have passed orders for striking off the defence of the respondent in case of non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition.

The Court, however, was of the opinion that striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.

Hence, it was directed that the order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.

[Read detailed guidelines and directions here]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]


*CRIMINAL APPEAL NO. 730 OF 2020

**Justice Indu Malhotra has penned this judgment

Case BriefsSupreme Court

Supreme Court: The bench of Indu Malhotra* and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The directions came in a case which revealed that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.


Legislations dealing with the issue of maintenance


The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the Cr.P.C. ,1973; and the Protection of Women from Domestic Violence Act, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Further, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 , and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 by invoking Sections 24 and 25 of the said Act.

The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time frames being prescribed by various statutes for disposal of interim applications, in practice that in a vast majority of cases, the applications are not disposed of within the time frame prescribed.


Guidelines and Directions 


(a)Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, the Court issued the following directions in order to ensure uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

(b) Payment of Maintenance

Interim Maintenance

(a) the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

[Note: The judgment has the Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III.]

(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks.

  • The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.
  • If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.
  • On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;

(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.

(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.

(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC. On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so.

The income of one party is often not within the knowledge of the other spouse. Hence, the Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.

(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination.

(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court.

(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.

(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned 37 order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.

(k) A professional Marriage Counsellor must be made available in every Family Court

Permanent alimony

(i)Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.

(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.

(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.

(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.

(c) Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

The financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living.

Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

Maintenance in all cases will be awarded from the date of filing the application for maintenance before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

(e) Enforcement/Execution of orders of maintenance

For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

[Rajnesh v. Neha, 2020 SCC OnLine SC 903, decided on 04.11.2020]


*Justice Indu Malhotra has penned this judgment

Case BriefsSupreme Court

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.”

Supreme Court: Answering important question pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (DV Act) in relation to right of residence in the shared household, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that

“The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household.”

In the judgment running into over 150 pages, the Court elaborately discussed and interpreted the provisions and scheme of DV Act. Overruling the law laid down in SR Batra v. Taruna Batra, (2007) 3 SCC 169, the Court held that respondent in a proceeding under Domestic Violence Act can be any relative of the husband and in event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.

In SR Batra v. Taruna Batra, (2007) 3 SCC 169, a two judge-bench had held that where it was held that the wife is entitled only to claim a right under Section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.


KEY TAKEAWAYS FROM THE JUDGMENT


WHAT IS A SHARED HOUSEHOLD?

“Means and includes”

The definition of shared household in Section 2(s) of the DV Act is an exhaustive definition. The first part of definition begins with expression “means” which is undoubtedly an exhaustive definition and second part of definition, which begins with word “includes” is explanatory of what was meant by the definition.

The use of both the expressions “means and includes” in Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other.

Conditions to be fulfilled for a shared household

(i) person aggrieved lives or at any stage has lived in a domestic relationship.

(ii) (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and 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

(b)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.

“At any stage has lived”

The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent.

The shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time.

“… shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent. .”

Further, Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.

Hence, the words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not.

IS RIGHT TO RESIDENCE UNDER SECTION 19 AN INDEFEASIBLE RIGHT?

The right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law.

“While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties.”

WHO CAN BE A RESPONDENT?

There are two conditions for a person to be treated to be respondent within the meaning of Section 2(q), i.e.,

  • in a domestic relationship with the aggrieved person, and
  • against whom the aggrieved person has sought any relief under Act, 2005.

For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant. Hence,

“To treat a person as the “respondent” for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person.”

NOTE: The Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, where the Court has struck down the expression “adult male” from the expression “any adult male person” and held that restricting the meaning of respondent in Section 2(q) to only “adult male person” is not based on any intelligible differentia having rational nexus with object sought to be achieved. Hence, it is now permissible under definition of Section 2(q) to include females also. [Read the full report on the 2016 verdict here]

IS THERE ANY EXCEPTION TO THE RIGHT TO RESIDE IN SHARED HOUSEHOLD?

The expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household.

“In appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household.”

For example, when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself.

Further, the embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005.

CAN AN ORDER UNDER SECTION 19(1)(b) BE PASSED AGAINST A WOMAN?

Section 19 (1)(b) of DV Act provides that while disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to remove himself from the shared household.

The Court held that while passing the order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order under clause(b) shall be passed against any person who is a woman.

ARE PROCEEDINGS UNDER THE DV ACT AND PROCEEDINGS BEFORE A CIVIL COURT, FAMILY COURT OR A CRIMINAL COURT, AS MENTIONED IN SECTION 26 OF THE DV ACT INDEPENDENT PROCEEDINGS?

The proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, the findings/orders passed by the one forum has to be considered by another forum.

CONCLUSION

  • The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
  • The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
  • A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841, decided on 15.10.2020]

Case BriefsHigh Courts

Madras High Court:  G.K. Ilanthiraiyan, J., quashed the proceedings filed under the Domestic Violence Act in light of being barred by limitation.

The instant petition was filed to quash the Domestic Violence proceedings under the Domestic Violence Act.

Petitioner and respondent are husband and wife, due to some misunderstanding between the two, the respondent left the matrimonial home and went to her parents home.

Thereafter, petitioner filed a petition for dissolution of marriage, whereas the respondent on the other hand also filed a petition for restitution of conjugal rights.

Petitioner’s Counsel contended that the Domestic Violence proceedings were filed only to harass the petitioner and escape from the legal proceedings.

Domestic Violence complaint was filed after the lapse of 1 year 10 months, therefore barred by limitation, and Magistrate ought not to have been taken cognizance under the DV Act.

In view of the above, the DV proceedings need to be quashed.

Bench relied on the decision in Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 wherein it was held that, under Sections 28 and 32 of the DV Act, 2005 read with Rule 15(6)of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of the Code of Criminal Procedure applicable.

“…the issue of limitation, in view of the provisions of Section 468 Code of Criminal Procedure, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Code of Criminal Procedure applicable and stand fortified.”

Therefore, the respondent ought to have lodged the complaint within a period of 1 year from the date of the incident.

Hence, the complaint lodged against the petitioner under the DV Act cannot be sustained. [N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

The patriarchal setup has been deeply rooted in Indian society since time immemorial. It may be believed that this system laid the foundation stone for the abuse of women. Domestic violence affects women from every social background irrespective of their age, religion, caste, or class. It is a violent crime that not only affects a person and her children but also has wider implications for society. Although the root behind the crime is hard to decipher, certain reasons behind the violence can be traced to the stereotyping of gender roles, and the distribution of power.

The definition of violence has evolved over the years to an extent it not only includes physical forms of violence but also emotional, mental, financial, and other forms of cruelty. Thus, the term domestic violence includes acts which harm or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse, perpetrated by any person who is or was in a domestic relationship with the victim.

Before the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the victim could approach the court under Section 498-A of the Penal Code, 1860 which provides for ‘husband or relative of husband of a woman subjecting her to cruelty’ wherein only a certain set of offence dealing with cruelty to married women was the only recourse. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim.

Protection of Women from Domestic Violence Act, 2005: Meaning, Intent, and Objective

To minimize the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of domestic violence. The legislative intent was further emphasized by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 wherein it was stated that the DV Act is enacted to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society. Other legislations like CrPC, IPC, etc., where reliefs have been provided to women who are placed in vulnerable situations were also discussed.

The objective of the Act lays down “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”[1] The Madras High Court in Vandhana v. T. Srikanth, 2007 SCC Online Mad 553 in one of the early cases since the enactment of the DV Act, observed that the Act was formulated to implement Recommendation No. 12 of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and which was ratified by India in June, 1993. Interpretation of the DV Act should conform to international conventions and international instruments and norms. The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412 reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.

Key Definitions under the Domestic Violence Act

  • Aggrieved Person

According to the definition provided under the DV Act in Section 2(a), an “aggreived person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Therefore, any woman who is or has been in a domestic relationship is entitled to make a complaint invoking provisions of the Act.

The amount or period of time lived together by the petitioner and respondent is not necessary in terms of that the petitioner and respondent should live or have lived together for a particular period of time. Hence, application by lady, for maintenance, from a man with whom she shared a close relationship is maintainable, M. Palani v. Meenakshi, 2008 SCC Online Mad 150.

The Supreme Court had observed in one of the cases that judicial separation does not change the status of the wife as an “aggrieved person” under Section 2(a) read with Section 12 and does not end the “domestic relationship” under Section 2(f). It stated that judicial separation is mere suspension of husband-wife relationship and not a complete severance of relationship as happens in divorce, Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705.

  • Domestic Relationship

According to Section 2(f) of DV Act, “domestic relationship” means a relationship between two persons living in a shared household. Domestic relationship can be through marriage such as wives, daughters-in-law, sisters-in-law, widows and any other members of the family; or blood relationship such as mothers, sisters or daughters; and other domestic relationships including through adoption, live-in relationships, and women in bigamous relationship or victims of legally invalid marriages. The law addresses the concerns of women of all ages irrespective of their marital status. The definition of “domestic relationship” under the DV Act is exhaustive: when a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive, Indra Sarmav. V.K.V Sarma, (2013) 15 SCC 755.

The Supreme Court further stated that the word domestic relationship means a relationship that has some inherent or essential characteristics of marriage though not a marriage that is legally recognized. Expression “relationship in the nature of marriage” cannot be construed in the abstract. It is to be taken in the context in which it appears and to be applied bearing in mind the purpose and object of DV Act as well as meaning of the expression “in the nature of marriage”, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.

  • Shared Household

According to Section 2(s) of DV Act 2005, a shared household is where the aggrieved person or a woman lives in a domestic relationship, either singly, or along with the man against whom the complaint is filed. It may also imply a household where a woman has lived in a domestic relationship but has been thrown out. This may include all kinds of situations whether the household is owned by the respondent or it is rented accommodation. It also includes a house either owned jointly by the aggrieved person and the respondent or both may have jointly or singly, any rights, titles or interests. The DV Act recognizes a woman’s right to reside in a shared household. This means a woman cannot be thrown out of such a household except through the procedure established by the law. In case she is thrown out she can be brought back again after obtaining the order from the court. A woman to claim the protection of right in “shared household” has to establish (a) that the relationship with the opposite party is “domestic relationship”, and (b) that the house in respect of which she seeks to enforce the right is “shared household”. In Indian society, there are many situations in which a woman may not enter into her matrimonial home immediately after marriage. A woman might not live at the time of the institution of proceedings or might have lived together with the husband even for a single day in “shared household” should not be left remediless despite valid marriage. Narrow interpretation of “domestic relationship” and “shared household” would leave many a woman in distress without remedy. Hence the correct interpretation of aforesaid definition including the right to live in “shared household” would be that words “live” or “have at any point of time lived” would include within its purview “the right to live”, Vandhana v. T. Srikanth, 2007 SCC Online Mad 553.

This law does not alter the legality of ownership or transfer the ownership and a woman cannot claim that she owns a house; it only provides emergency relief to the victim in the sense that she cannot be thrown out of her house. For claiming ownership, a woman has to follow a separate legal procedure and has to file a separate application as per the provisions of laws whichever are applicable to her situation.

  • Domestic Violence

“Domestic violence” is a broad term that entails not only physical beating but also other forms of violence such as emotional violence, mental violence, sexual violence, financial violence and other forms of cruelty that may occur within a household. The definition provided in Section 3 of the DV Act includes the following as acts of domestic violence:

“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.”

The Section also defines the meaning of terms physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. It further enunciates that the overall facts and circumstances of the case shall be taken into consideration in order to determine whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under the said section.

Who can seek help or can claim reliefs under the Domestic Violence Act?

According to the provisions of this Act, any aggrieved woman who is in a domestic relationship with the respondent and who alleges to have been subjected to the act of domestic violence by the respondent can seek help. A woman can file a complaint against any adult male perpetrator who commits an act of violence. She can also file a complaint against any male or female relatives of the husband/ male partner (for example in a live-in relationship) who has perpetrated violence. The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 struck down adult male from the definition of “respondent” stating that it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The Supreme Court also explained in the said case that the categories of persons against whom remedies under the DV Act are available include women and non-adults. Expression “respondent” in Section 2(q) or persons who can be treated as perpetrators of violence against women/against whom remedies under the DV Act are actionable cannot be restricted to expression “adult male person” in Section 2(q). Thus, remedies under the DV Act are available even against a female member and also against non-adults.

Protection Officer

Under Section 8 of the DV Act, the Protection Officer is appointed by the State Government as per the provisions of the law. The Protection Officer acts as a facilitator between the aggrieved woman and the court. The Protection Officer aids the aggrieved woman in filing of complaints, and application before the Magistrate to obtain the necessary relief and also assists to obtain medical aid, legal aid, counselling, safe shelter and other required assistance.

Duties of Protection Officer

Section 9 of the DV Act lays down the duties of the Protection Officer as follows:

“(a) to assist the Magistrate in the discharge of his functions under this Act;

(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;

(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;

(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and make available free of cost the prescribed form in which a complaint is to be made;

(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;

(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;

(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;

(h) to ensure that the order for monetary relief under Section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

(i) to perform such other duties as may be prescribed.”

Service Providers

A victim of domestic violence may require various services such as shelter home or safe accommodation, medical aid, child care, legal aid services and other community services. According to Section 10(1) of DV Act, the Service Providers are the NGOs, Companies or voluntary organizations working in the field of domestic violence and are registered under the laws of the State. Service Providers are duty bound to provide assistance and support to women facing domestic violence. A woman can go to a registered Service Provider to make a complaint under the DV Act. The duty of the service provider, as provided under Section 6 of the DV Act, upon receipt of request should be to provide shelter to the aggrieved person in the shelter home.

Filing a Complaint of Domestic Violence

An aggrieved woman, in order to file a complaint for domestic violence may:

  • Approach the police station and register the complaint, or
  • File a complaint to a Protection Officer or Service Provider, or
  • Directly approach the Magistrate.

The duties of the police officers, Protection officer, Service Provider, or the Magistrate is laid down under Section 5 of the Act. It states that, upon receipt of complaint they shall inform the aggrieved person—

“(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;

(b) of the availability of services of service providers;

(c) of the availability of services of the Protection Officers;

(d) of her right to free legal services under the Legal Services Authorities Act, 1987 ;

(e) of her right to file a complaint under Section 498-A of the Indian Penal Code , wherever relevant”

The Supreme Court emphasised that the Police has to look into the complaint made under the DV Act seriously and it cannot submit a report that no case is made out without proper verification, investigation, enquiry not only from members of family but also from neighbours, friends and others, Santosh Bakshi v. State of Punjab, (2014) 13 SCC 25.

Which Court can decide the case

Section 27 of the DV Act provides that a first class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offences under the Act within the local limits of which

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen.

In a recent decision, the Supreme Court held that petition under DV Act can be filed in a court where “person aggrieved” permanently or temporarily resides or carries on business or is employed, Shyamlal Devda v. Parimala, (2020) 3 SCC 14.

Reliefs available under the Domestic Violence Act

The remedies available under the DV Act as provided from Section 18 to 23 for the aggrieved person are as follows:

The Magistrate after giving the aggrieved person and the respondent an opportunity of being heard and if satisfied that domestic violence has taken place or is likely to take place may pass a protection order and prohibit the respondent from

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

The Magistrate may pass a residence order

  1. a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

The proviso clause for the section states that no order shall be passed under clause (b) against any person who is a woman.

The High Court of Madras opined that the Act contemplates two types of reliefs viz. (a) right to reside in shared household; and (b) right to seek residence orders under Section 19 of the Act—Section 19(1) of the Act empowers Magistrate to pass variety of residence order. Shared household would come into picture only when relief is sought in terms of Sections 19(1)(a) to (e) of the Act. Aggrieved woman can seek orders to enable her to continue to reside in shared household or protection order to enable her to reside in shared household, then property, which is subject-matter, should be shared household. Aggrieved woman can seek relief of alternate accommodation in terms of Section 19(1)(f) of the Act and in such case concept of shared household would not be attracted. Expression “shared household” occurring in Section 19(1)(f) of the Act is just for purpose of enabling aggrieved woman to seek alternative accommodation, which would be on par with shared household that she enjoyed at some point of time, M. Muruganandam v. M. Megala, 2010 SCC Online Mad 6012.

Under Section 20 of DV Act, an order for monetary relief can be passed by the court in case a woman has incurred expenditure as a result of violence. This may include expenses incurred by a woman on obtaining medical treatment, any loss of earnings, damage to property, etc. The aggrieved person can also claim for maintenance from her male partner.

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 is 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 or any other law for the time being in force.

It has also been provided in the section that the monetary relief provided should be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. In case there is a failure in part of the respondent to make payment in terms of the monetary order, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

The Magistrate may grant temporary custody of the children to the aggrieved woman or any person making an application on her behalf. This is to prevent a woman from being separated from her children, which itself is an abusive situation. Section 21 also states that the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. However, the Magistrate may refuse such visit to such child or children, if it feels that any visit to the child or children by the respondent may be harmful.

The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

  • Magistrate’s power to grant interim and ex parte orders (Section 23)

Section 23 gives power to the Magistrate to pass such interim order as he deems just and proper and also if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.

Conclusion

Although the major objective of this law, being to protect the women against domestic violence has been secured, certain portions of the law still remains to be developed. This law provides civil remedies to the victims of domestic violence. Before enactment of this law, in order to seek any civil remedies such as divorce, custody of children, injunctions in any form or maintenance, a woman only had the option of taking recourse to the civil courts. Therefore, the DV Act has certainly brought about the required and necessary change in the system.

Although the Act provides exhaustive remedies to counter the issue of domestic violence certain terms and its interpretation needs to develop. The Act falls short in providing any relief to the male members in the community who are subjected to domestic violence, being one of the areas where the law falls short. However, it also needs to be considered that no crime can be abolished from the society completely, it is only with stringent reforms and mechanism that it can be curbed.


[1] Protection of Women from Domestic Violence Act, 2005


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted bail to the applicant accused of sexually abusing her step daughter.

Applicant sought enlargement on bail in the case registered for the offences punishable under Sections 354, 354A of the Penal Code, 1860 and Section 8, 9(n) of the Protection of Children from Sexual Offences Act, 2012.

After the demise of first husband, complainant got married to the applicant and started residing at applicant’s house with her daughters from first and second marriage.

Later, being subjected to harassment from applicant she moved out of his house to her mother’s house. In April, 2019, one of the daughters from the first marriage of the complainant told her that she was sexually abused by her step father i.e. the applicant.

Complaints under Sections 504 and 506 of Penal Code, 1860 were filed against the applicant.

Applicant’s counsel invited Court’s attention to a letter addressed by the elder daughter of the complainant from first marriage to the Senior Inspector of the Police wherein she had alleged attempts by her mother to push her in the prostitution.

Further he added that the complainant’s version was suspicious, particularly, in view of her elder daughter’s complaint to police, which was not been enquired into.

The Bench perused the relevant documents as pointed and referred, and in Court’s opinion a case was made out for releasing the applicant on bail.

That even otherwise, investigation in the case is over. Offence punishable under Sections 354, 354A and Section 12 of the POCSO Act, may extend to 5 and 3 years respectively.

Bail application was allowed. [Makrand Chandrakant Bapardekar v. State of Maharashtra, 2020 SCC OnLine Bom 779 , decided on 13-07-2020]

COVID 19OP. ED.

Abstract

India has always followed the path of patriarchal society. This age-long tradition has never died due to the circumstances and upbringing of youth in such an environment which glorifies it. Gender inequality is an extensive issue in communities taking forms of violence against women, and particularly domestic violence, which then forms a vicious cycle that always keeps women subordinated, disempowered and unequal. This gender parity needs to be looked after. In the recent times of the COVID-19 pandemic where economic, social, political, personal, professional positions are at stake and facing huge repercussions. The most hardly hit area is the women community. The crime of domestic abuse suddenly ramped up after the announcement of lockdown not only in India but all over the world. The pandemic has ended up leaving the domestic violence victims helpless and nowhere to go for the enforcement of their rights. Amidst this corona pandemic, a hidden pandemic is emerging out i.e. domestic violence which will not end unlike the lockdown will one day. This paper will go in deep lengths analysing the domestic violence in the pandemic, reasons of surge in cases, measures taken and provisions in the Protection of Women from Domestic Violence Act, 2005[1]. There is an urgent need for this issue not to get ignored this time. We (the government, the society, the individuals) should not wait for such pandemics to erase out one of the gravest menaces in our society. 

Introduction

Liberty, equality, fraternity were the ideals on which the French revolution was based, led by Robespierre, resulted in the establishment of people’s rule commonly known as democracy. Our Constitution upholds these ideals by accommodating them as a fundamental right of every individual. In the past 70 years, the State has successfully ensured the political equality to its citizens but social and economic equality are still a far-reaching dream to ordinary women and especially to women. In the words of the former Chief Justice of India R.C. Lahoti, women, children, tribal and minority communities, victims of militancy, crime, disaster, drought-hit farmers, and sex workers needed urgent attention.[2] “Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women…”[3] The concept of domestic violence is not a new phenomenon nor are its consequences as it is a long-aged menace still existing in our society. The violence perpetrated on women is not only a social issue but also a health, economic, developmental, educational and above all a human rights issue. It is one of the most pervasive of human rights violations globally. The family is often equated with sanctuary – a place where individuals seek love, safety, security, and shelter[4] but research shows evidently that it has also become the place where lives are put in peril and breeds drastic violence against girls and women. In 1992, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee)[5] stated in Article 6 that gender based violence, violence that is directed against a woman because she is a woman or that affects women disproportionately” and that is “is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men” (Article 1)[6].  Certain variations in the existence of violence between and within the communities proves that it is not inevitable and can be rooted out by preventive measures.

Domestic Violence in Current Pandemic

“Confinement is a breeding ground for domestic abuse.”[7] As recently noted by the UN Secretary General, global lockdowns have resulted in a “horrifying surge” in gender-based violence (GBV)[8]. The whole world is witnessing a sharp rise in the violation of rights of women. Not only the developing countries like India became victim to this curse during the pandemic but also highly developed countries like UK, USA, Australia, France, Germany, Hong Kong and many more countries succumbed to it. Imposition of nationwide lockdown has deteriorated the situation in India. India’s National Commission for Women (NCW) said it registered 587 domestic violence complaints between March 23 and April 16 – a significant surge from 396 complaints received in the previous 25 days between February 27 and March 22[9]. It is most likely that the number of domestic violence is much more higher than the real figure as one more factor exists which is liable for exaggerating this problem is that the victim locked in with the abusers might not get access to a mobile phone and time to call for help. Most of the avenues which help them to fight these situations are impaired. And to worsen the situation, opening of liquor shops post lockdown, added fuel to the fire.

Causes of Surge in Cases in Pandemic

There is no single factor responsible for the violence perpetrated against women. Several researches have indicated that there is an interconnectedness of various social, economic and cultural factors which accounts for this worst form of violence. According to Sociologist Marianne Hester, “domestic violence goes up whenever families spend more time together, such as the Christmas and summer vacations.”[10] The data shows that amidst this lockdown the complaints of domestic violence have nearly doubled evincing the idea of patriarchy being dominant till today. Stress, the disruption of social and protective networks, and decreased access to services is exacerbating the risk of violence for women.[11] Women’s unpaid care work has long been recognised as a driver of inequality. It has a direct link to wage inequality, lower income, poorer education outcomes, and physical and mental health stressors. The unpaid and invisible labour in this sector has been exacerbated exponentially by the COVID-19 pandemic[12].

Another important aspect responsible for this surge in domestic abuse is domestic labour. Gendered roles all over the world have placed domestic work on women’s shoulders, which is socially and culturally often demarcated as “women’s work”. During this pandemic the work load of women has increased due to all the members being at home. With housekeeping staff being unavailable, the expectation is for women to do all the tasks and that too with full efficiency and productivity, and chances of violence increase if she fails to do so. Economic factor has played a crucial role in surging this violence. A large chunk of women population is suffering from the economic dependence on the male counterpart. According to the Centre for Monitoring Indian Economy, the national lockdown did not just throw 72 million people out of the labour force but it also drove another 85 million to some kind of desperation to look for jobs in the midst of a national lockdown when none were available[13]. This scenario suggests that people are highly vulnerable to a loss of livelihood. Men are not able to prove themselves at the economic front. They are workless doing absolutely nothing and the burden to make a living for the family with the inability to do it has led to frustration of which then women are the victim. The increasing financial burden and the needs of the family especially in poor strata of the society is making the situation worse. Such sorry state of affairs definitely comes under the umbrella of factors which perpetuate this violence.

Domestic violence is in the form of rapes and sexual harassment as well and COVID-19 time sets out the classic example of it. 2 crore babies are to be born in India till December 2020[14]. This is the highest number recorded so far. The question it raises now is that will all these babies be born with the consent of women. India has still not penalised marital rape. It may happen that women during the time of pandemic were subjected to force and since they are always considered to be subordinate and disempowered, they had to give in.

Government Measures

With cases of domestic violence swelling every day, the situation is becoming very grim. And it becomes the duty of the executive and the judiciary to implement the laws and take effective measure in cases of non-compliance. Recently, to tackle the situation better the Delhi High Court has directed the Delhi Government to mull over the appointments of protection officers. The National Commission for Women (NCW) also launched WhatsApp helpline numbers to protect them from harassment and in grave cases Crisis Intervention Centre (CIC) through counsellors accompany the aggrieved person and  make possible the recourse to public authorities. A laudable initiative by the UP Police has also been launched named as “Suppress Corona, not your voice” which encourages them to be vocal against the crime. The Tamil Nadu Government has also made a fruitful decision on protection officers. Clearly, the steps taken are appreciated but they are not sufficient to handle the emerging statistical numbers in cases of domestic violence.

Humane Framework: Necessary to Combat

As a responsible citizen of the country under Article 51-A of the Constitution, we have certain  fundamental duties to perform on our part of which one is  to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”[15]  We need a comprehensive nationwide campaign to bring awareness among the people and make them sensitised towards this issue. These issues must be highlighted through various modes like, radio channels, national news channels. These platforms must be strategically used in the same way as the government has used for washing hands and social distancing to combat COVID-19. Efforts like in France and Spain, where pharmacies are being trained in a way to identify the victim of abuse through code words like “Mask-19” for the people who cannot speak openly on social platforms should be adopted. The non-profit organisations, civil society organisations are a key to unlock the unawareness in the society. A lot of these organisations enable shelter needs, counselling, legal aid, medical assistance and many more.

Provisions Of the Domestic Violence Act, 2005

The effectivity of the legal framework in India is at stake during COVID. We will analyse if the women are protected by the provisions of the Protection of Women from Domestic Violence Act, 2005.

First and foremost, domestic violence leads to abuse of human rights and fundamental rights for example, right to live with dignity (Article 21), right to live in healthy environment and in good health (Article 21) granted by the Indian Constitution is violated. In Francis Coralie Mullin v. The Administration[16], the Supreme Court recognised the right to be free from physical violence. Moreover, in  Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[17], right against emotional and sexual abuse was also protected by the Supreme Court. 

Coming to the Act, Section 11[18] of the Domestic Violence Act describes that the Government is obliged to raise awareness in the society by regular publicity of issues through the use of print and media which has not been adhered to. In addition to this, Sections 8[19] and 9[20] of the Act have not been implemented in its whole as only some of the States are considering doing this. What is even more problematic is the restricted access or recourse to the public authorities. Section 7[21] of the Act which provides for medical facilities is also not acted upon as the list of essential items lacks sanitary napkins which is a necessity.

The Way Forward

There is no doubt in the fact that the judiciary even in these tough times has imparted its services in a very hardworking way by establishing virtual courts and ensured justice to the victims. But still the efficacy of policies and redressal mechanisms needs re-assessment in one way or the other. Not only the physical but also the emotional and psychological health is at stake when an act of domestic violence takes place against her. So, we need to build a safe and secure place for the women by ensuring checks and balances. This menace can be banished completely by way of “community-based network” between the societies/communities and among people which will instil a sense of fear or shame before the commitment of such act by the abuser.

These crimes are committed not only against the women but also against the democracy, humanity, natural laws and most importantly our legal system.  The “Intimate Terrorism” needs to be curbed as soon as possible before the human rights issue especially (women’s right issue) become a joke for the abusers in the time to come. The Government along with the NGOs can protect the vulnerable section and help them to survive the pandemic by the setting up of emergency warning system so that women could reach out to the authorities without alerting the abusers. The issue of women’s sexual and reproductive health should be taken up as this is the need of the hour. It is high time that we, as responsible citizens of this country start taking this issue to as our priority. To sum this up, Swami Vivekanand truly said, “There is no chance for the welfare of the world unless the condition of woman is improved. It is not possible for a bird to fly on only one wing.”


*Students of Rajiv Gandhi National University of Law, Patiala, Punjab

[1] Protection of Women from Domestic Violence Act, 2005 

[2] Financial Express: http://www.financialexpress.com/news/legal-literacy- mission-launched/128689/ 

[3] The United Nations Declaration on the Elimination of Violence against Women, General Assembly Resolution, December 1993, Domestic Violence against Women and Girls, No. 6 – June 2000, Innocent Digest.

[4] Id.

[5] The CEDAW Committee is a body of 23 independent experts on women’s rights around the world; it monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women, 1979, http://www.scconline.com/DocumentLink/9Z9K6X50 which entered into force on 3 September, 1981. As of January 2014, 187 countries have ratified or acceded to the Convention. 

[6] UN, CEDAW Committee (1992), General Recommendation No. 19 on Violence Against Women, adopted at the 11th Session, 1992, A/47/38, 29 January, 1992.

[7] Abueish, Tamara (2020-04-06). “Coronavirus: A Jordanian woman pleads for help as domestic abuse cases rise globally”,  Al Arabiya English, Retrieved 2020-04-14.

[8] https://news.un.org/en/story/2020/04/1061052

[9] https://www.aljazeera.com/news/2020/04/locked-abusers-india-domestic-violence-surge-200415092014621.html

[10] https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do

[11] https://apps.who.int/iris/bitsream/handle/10665/331699/WHO-SRH-20.04-eng.pdf

[12] https://www.unwomen.org/-media/headquarters/attachments/sections/liabrary/publications/2020/policy-brief-the-impact-of-covid19-on-women-en.pdf?la=en&vs=1406

[13] https://www.businesstoday.in/current/economy-politics/india-unemployment-rate-falls-to-21-per-cent-lowest-during-coronavirus-lockdown   cmie/story/402240.html?utm_source=recengine&utm_medium=WEB&referral_sourceid=400902&referral_cat=Jobs

[14] https://new.rediff.com/commentary/2020/may/07/2-crore.indian-babies-will-be-corn-amid-covid/129996638a4372c1e9c79399a76

[15] Article 51-A of the Constitution. 

[16] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 .

[17] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121

[18] The Protection of Women from Domestic Violence act, 2005

[19] Ibid

[20] Id.

[21] Id.


Image Credits: The Week

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and M. Nirmal Kumar, JJ. has given time to the T.N. Government to file additional status report in a writ petition that is seeking immediate setting up of an emergency response system to aid and assist victims of domestic violence.

The petitioner had suggested that the same can be done through measures including:

(a) Ensuring the working/functional mobile and landline numbers of Protection Officers of all the Districts to be made public and readily available and disseminated through electronic, print and visual media.

(b)Ensuring that Protection Officers in every District be given access to vehicles to rescue victims of domestic violence on an urgent basis.

(c) Making provision for filing and submitting the domestic incident reports online/through telephone.

(d)Notifying a list of service providers with their contact numbers and addresses and have this information disseminated thrugh electronic, print and visual media.

(e) Notifying a list of shelter homes along with contact numbers and address for every District that can accommodate victims of domestic violence and have this information disseminated through electronic, print and visual media.

(f) Directing Health service providers to document instance of physical abuse and give proper treatment to victims of domestic violence on a priority basis.

(g) Directing the local police to provide all necessary cooperation and support for rescue and movement of victims of domestic violence and social workers who are assisting them.

The petitioner was represented by Poongkhulali, Advocate. While, Additional Advocate General S.R. Rajagopal assisted by V. Jayapraskash Narayan, Government Pleader, appeared for the State.

The Court’s attention was invited to the detailed status report filed by the State on 23-1-2020, wherein steps taken to address the issue relating to the domestic violence have been narrated in detail. Discussing the same, the petitioner suggested some additions and modifications.

The Additional Advocate General submitted that the suggestions made by the petitioner have been taken note of and appropriate remedial measures would be taken at the earliest. He prayed for some more accommodation to file an additional status report.

The matter is now posted for 20-5-2020. [Sudha Ramalingam v. State of T.N., 2020 SCC OnLine Mad 973 , decided on 24-4-2020]    

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., asked for the State Government’s response with regard to breach of social distancing norms at a political leaders house, incident of assault on doctors, nurses and ASHA workers and action being taken on the complaints filed with respect to domestic violence.

Bench invited the attention of Additional Advocate General with regard to the incident wherein the doctors, nurses, health workers and ASHA workers were assaulted. State Government  has been asked to place an action report.

Further the bench received a petition in which a complaint was submitted about the breach of guidelines concerning the social distancing in a marriage ceremony held in the house of a prominent political leader. State Government has been asked to respond to the same.

A large number of instances of domestic violence as a consequence of the lockdown have also been reported. State Government asked to take action on the basis of complaints filed in the said regard.

State has also been asked by the Court to render assistance to those who are suffering from mental disturbance due to the situation created by COVID-19.

Counsel for Karnataka State Legal Services Authority, points out that in other parts of the State, the passes are being regularly issued to the paralegal volunteers, the Deputy Commissioner of Bengaluru Urban District is refusing to issue such passes. In the said regard, Court directs Bengaluru Urban District to immediately consider the request made by the DLSA, Bengaluru Urban District and to issue passes.

Matter is to be listed on 24-04-2020. [Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 442 , decided on 21-04-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of Justice J.R Midha and Jyoti Singh, JJ. has directed the Union of India, Government of NCT of Delhi, Delhi Commission of Women and others to convene a meeting at highest level to consider measures to be taken for curbing the rising incidents of domestic violence.

The High Court was considering a public interest litigation (PIL) filed by All India Council of Human Rights Liberties and Social Justice, an NGO working for human rights protection. The PIL was filed for protection of victims of domestic violence/abuse which has increased manifold since imposition of lockdown due to COVID-19.

The Court issued notice to the Union of India, Delhi Government, Delhi Commission for Women and other authorities. It was submitted by the respondents that various steps have been taken for protection of the victims of domestic abuse. Maninder Acharya, Additional Solicitor General, submitted that Ministry of Women and Child Development has already taken cognizance of the spike in domestic violence cases and issued certain directions to the District Collectors/District Magistrates concerned.

The petitioner appearing through Arjun Sayal and Mithu Jain, Advocates, submitted that certain more effective measures need to be put in place.

The High Court was of the view that the Union of India, the Delhi Government, Delhi Commission for Women and other respondents should convene a meeting at highest level to consider suggestions of the petitioner and also deliberate on what additional measures can be undertaken to curb the incidents of domestic violence as well as for protection of the victims.

The decision was directed to be taken within three days and fresh steps required for protection of the victims of domestic abuse/violence be implemented immediately thereafter. A fresh status report is also directed to be filed before 24th April, 2020, the next date of hearing. [All India Council of Human Rights Liberties and Social Justice v. Union of India,  2020 SCC OnLine Del 537, dated 18-04-2020]   

Case BriefsCOVID 19High Courts

Jammu & Kashmir High Court: A Division Bench of Gita Mittal, CJ and Rajnesh Oswal, J. took suo motu cognizance of increasing domestic violence cases against women during COVID-19 lockdown and suggested measures to handle the situation. The Court also passed direction upon the Government and various authorities. The matter was directed to be listed as a writ petition in public interest (PIL).

Even at the best of the time, women and girls face tremendous barriers in accessing means to meet for help and securing justice. Illiteracy, financial incapacity; ignorance of available assistance; family and societal barriers; fear of formal institutions like police; insufficient legal aid; lack of information, etc impede women and girls from accessing resources against domestic violence being faced by them.

Observing that unfortunately all crises disproportionately impact women, the High Court noted that globally, while the pandemic is having a tremendous negative impact on societies and economies, the adverse social and economic consequences of the pandemic for women and girls are devastating. As the lockdown is implemented, societies as a whole are having reduced access to resources. There is increase in stress due to loss of jobs and strained finances. Lack of income, unemployment, insecurity about the future or the fate of children creates tensions amongst the adults leading to abuse of all kinds. This is exaggerated in families with prior histories of such behaviour. Women and children are found to be specially vulnerable to such domestic violence which has seen a worldwide spike.

… the biggest obstacle to a woman seeking assistance against abuse and domestic violence is the fact she has to go against intimate domestic partners or her own family members.

Looking at the stats, the latest data released by National Commission for Women, within a week after the lockdown began on March 24, a total of 257 complaints relating to crime against women, have been received by its Complaint and Investigation Cell. This data, shows a steep rise during the lockdown, compared with the figures available for the week between March 2-8, that stands at a total of 116 complaints. The cases of domestic violence, specially, rose to 69 from 30.

The lack of enforcement as well as alternative source of residence also impedes women filing complaints with officials or the police. There is also a huge trust deficit.

It was noted that one factor in the mode of lodging a complaint, which has been noticed in India, is the inability of women and children from the economic weaker sections of the Indian society to accessing online platforms for assistance. Any measure for assistance to victims of domestic violence must provide for women and children from this group.

Judicial notice was taken of the fact that plight of victims of domestic violence in the UTs of J&K and Ladakh must be no different as that of similarly placed victims in other jurisdictions. It was held that to ensure adequate means and tools to address domestic violence to victims in these two Union Territories, women’s leadership and adequate contributions must also be at the heart of the COVID-19 planning and implementation measures.

Adverting to the Protection of Women from Domestic Violence Act, 2005: the statutory mechanism in existence for protection of rights of women who are victims of violence of any kind occurring within the family, the Court stated that a duty is cast upon the Government under Section 11(a) to take all measures to give wide publicity to the provisions of the law through public media including the electronic and the print media.

Considering gravity of the situation, the High Court suggested following measures to grant immediate assistance:

(i) Creation of dedicated funding to address issues of violence against women and girls as part of the COVID-19 response by the Union Territories of the Jammu and Kashmir and Ladakh.

(ii) Increased availability of call-in services to facilitate discreet reporting of abuse.

(iii) Increased tele/online legal and counselling service for women and girls.

(iv) Designated informal safe spaces for women, say grocery stores and pharmacies, where they can report domestic violence/abuse without alerting the perpetrators.

(v) Immediate designation of safe spaces (say for instance empty hotels/education institutions etc.) as shelters for women who are compelled to leave their domestic situation. These shelters must be treated as accessible shelters.

(vi) Giving urgent publicity to information regarding all of the above measures as also the availability of the facilities for seeking relief and redressal against the issues of domestic violence.

(vii) Increasing awareness campaigns on all aspects of the issues.   

The Court also passed certain directions on various authorities:

(a) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will submit a report informing about the steps taken regarding domestic or any other kind of violence being faced by the women on account of the implementation of the COVID-19 lockdown.

(b) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will examine suggestions given by the Court as enlisted above as also the innovative measures taken by countries world over and the spotlight initiative taken up by the United Nations. The said authorities will take a view regarding requirements and steps to be taken to mitigate the sufferings of the victims of domestic violence in the Union Territories.

(c) A report of measures in place, steps underway, and those contemplated, be placed before the Court before 28th April, 2020, the next date of hearing.

(d) The Secretaries of the J&K Legal Services Authority shall call for list of all cases involving cases of domestic violence which are pending as complaints with the police stations in the Union Territories or in the courts and ascertain the safety and well being of the complainants. 

(e) All the courts in the UTs of J&K and Ladakh shall treat cases of domestic abuse as urgent and proceed with the matters in accordance with the Circulars issued regarding the procedure to be followed ensuring social distancing.

Advocate Monika Kohli is appointed as an amicus curiae and the matter has been directed to be listed next on 28th April, 2020 for further consideration. [Court on its own Motion v. UTs of J&K and Ladakh, WP(C) PIL No. (unnumbered) of 2020, dated 16-4-2020]

Case BriefsHigh Courts

Calcutta High Court: Madhumati Mitra, J., dismissed an application filed against the order of the Sessions Judge whereby he upheld the order passed by the Magistrate who had directed the petitioner to pay monthly monetary relief to his mother and also her medical expenses.

The respondent, the mother of the petitioner, had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), claiming various reliefs. Allowing the said application, the Magistrate passed the impugned order as stated above under Section 18 of the DV Act. Challenging the said order, the petitioner filed the instant application.

Abdulla Rahamani and K. Basar Bulbul, Advocates for the petitioner, submitted that there was an ongoing land dispute between the petitioner on one side and his mother along with his two brothers on the other side. Denying all the allegations, the petitioner contended that the Section 12 application was filed by his mother on the instigation of his brothers. It was further contended that the dispute was purely of civil nature between the mother and her two sons and the mother could not be regarded as an “aggrieved person” within the meaning of the DV Act.

The High Court considered that the mother, in her application under Section 12, described that she was subjected to physical and mental torture by the present petitioner. On the point of law, the Court restated: “Section 2(a) of the Act of 2005 has defined the term ‘aggrieved person’. ‘Aggrieved Person’ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

It was further observed: “Section 2(f) of the Act of 2005 defines ‘domestic relationship’. 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.”

The court noted that in the present case, the parties were related to each other, i.e., the relationship between son and mother. They have been in a relationship where both parties lived together in a residence. the Court below elaborately analysed the evidence o record, the relationship between the parties, their economic condition and the income of the other two sons of the respondent; and, thereafter, came to the conclusion that the mother was entitled to get the reliefs under the DV Act.

In such circumstances, the High Court found no grounds to interfere with the impugned order. Resultantly, the interim application was dismissed. [Goutam Chanda v. Gouri Ram Chandan, 2019 SCC OnLine Cal 3832, decided on 02-12-2019]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal revision petition, a Single Judge Bench comprising of Rathnakala, J. held that the obligation of the husband to maintain the wife continues throughout the matrimonial life and the husband cannot get away with an excuse that for many years no request was made by the wife for the maintenance amount.

In the present case, the wife filed a petition under S. 12 of the Act for various relief. The learned Magistrate ordered maintenance and compensation in favor of the wife which was modified by the lower appellate court. The husband-revision petitioner, challenged the maintainability of the petition filed by the wife under S. 12 of the Act for maintenance and compensation. Learned counsel for the petitioner submitted that there was no cause to file the petition since there was no harassment/ill treatment or domestic violence as defined under S. 3 of the Act.

The Court, rejecting the contention of the petitioner held that domestic violence under S. 3 of the Act, includes economic abuse also. The omission of the husband in neglecting to maintain the aggrieved wife falls within the description of S. 3 of the Act. The husband was living with another woman, which was another form of domestic violence, emotional. It was held that the petitioner was guilty of offence of domestic violence under the Act and could not escape liability. [Kasturi v. Subhas, Criminal Revision Petition No. 539/2017, dated August 3, 2017]

Case BriefsHigh Courts

High Court of Kerala: Deciding the question on whether subsistence of matrimonial relationship is a sine-qua-non for seeking reliefs under Sections 18 and 20 of the Protection of Women from Domestic Violence, 2005 (D.V. Act), the Bench of Sunil Thomas, J. ruled that even a divorced wife is entitled to initiate proceedings under Sections 18, 19, 20, 21 and 22 of the D.V. Act to seek appropriate reliefs. It was held that the scope of the DV Act is not confined within the limits of time and space and even after the dissolution such obligations continue.

The Court said that though it may appear to be paradoxical to argue that protection orders can be sought even after separation of spouses, such a cause of action may not be rare, which arises subsequent to the divorce, but relatable to the earlier matrimonial relationship. It is not unusual that even after divorce, certain obligations arising from past matrimonial relationship continue, like, maintenance, custody of children, liability to pay amounts or assets received, operation of bank accounts and personal safety of divorced wife and children born in the wedlock. It will be illogical and absurd to hold that the moment of divorce is granted, scope of protection order also ceases.

In the present case, the petitioner’s wife and child sought maintenance under Sections 18 and 20, after their divorce in May 2015, invoking Section 13-B of the Hindu Marriage Act. The reliefs sought were a protection order against domestic violence, return of gold ornaments and passport of the respondent. The petitioner sought to quash the above proceedings in lieu of the specific, categoric agreement that they had entered into that the wife will not claim ornaments, money or maintenance against the husband in future and also that the reliefs can be sought only during the subsistence of the marriage and that the marriage had been brought to an end legally and factually.

The Court rejecting the petitioner’s contention, held that contracting out of the statutory rights conferred on the wife under Sections 19 to 22 of D.V. Act is against public policy and hence cannot be recognized, unless it is proved that there was a mutually satisfactory settlement of all claims. The Court, hence rejected the contention of the petitioner and held that the reliefs sought is not maintainable and that the legally divorced wife has a locus standi during her entire life-time. [Bipin v. Meera D.S., 2016 SCC OnLine Ker 19559, decided on 13.10.2016]

Case BriefsHigh Courts

High Court of Orissa : In a path breaking decision the Bench comprising of S.K. Sahoo, J.,while answering a vital question that whether a women being an ‘aggrieved person’ can file an application before the Magistrate under the Protection of Women from Domestic Violence Act for domestic violence against the accused/respondent irrespective of the fact whether she is living in with the accused/respondent in share-household or not at the time of filing an application, observed for subjecting a woman to any act of domestic violence as defined under Section 3 of the PWDV Act and maintaining an application under Section 12 of the  Act, it is not necessary that the woman concerned must be living with the accused/respondent under one roof or in a shared household at the time of presenting the application to the Magistrate.

The petitioner had challenged the order passed by learned Sessions Judge and the  SDJM, Bhubaneswar basing its reliance on the case, Amit Agarwal v. Sanjay Aggarwal reported in 2016 (2) Crimes 783, that the suit filed by the opposite party under the provisions of PWDV Act is not maintainable on various grounds including that there existed no “domestic relationship” between the parties for almost 4 years therefore, without existence and continuance of domestic relationship between the parties, taking recourse to the provisions of the PWDV Act by the opposite party against the petitioner is not maintainable in the eye of law.

The Court upholding the contentions of the learned council for the opposite party observed that an ‘aggrieved person’ can file an application in case she is subjected to any act domestic violence although it is it is not necessary that the ‘aggrieved person’ concerned must be living with the respondent under one roof or in a shared household at the time of presenting the application to the Magistrate however,the ‘aggrieved person’ if have lived together with the respondent at any point of time, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, can maintain an application before the Magistrate under Section 12.

The Court dismissed the review criminal petition as being devoid of merits and stated that learned Magistrate has rightly rejected the petition filed by the petitioner challenging maintainability of the proceeding under the PWDV Act since the opposite party is the ‘aggrieved person’ within the meaning of the Act and the alleged overt acts committed by the petitioner of regularly coming to the rented house of the opposite party at Bhubaneswar and subjecting her to physical and mental torture after living separately, on the opposite party as mentioned in the application prima facie makes out a case of domestic violence and merely because they are living at separate places since 2012 does not snapped their ‘domestic relationship’ of being husband and wife. [Giridhari Nath v Mamitarani Sutar, 2016 SCC OnLine Ori 818, decided on 11th November, 2016]