Law made Easy

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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


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Case BriefsHigh Courts

Punjab and Haryana High Court:  Fateh Deep Singh, J. allowed the application of bail on the ground that petitioner was behind the bar and that culpability will be determined during the trial which was not going to be concluded in near future.

A petition for regular bail was made for the offence under Sections 342, 354B, 376, 511/34, 450 of the Penal Code, 1860.

The facts of the case were that the accused petitioner and his sons forcibly took the complainant into a room, tore off her clothes, abused her, tried to violate her and gave her beatings against which the FIR was made the very next day of the incident.

G.C. Shahpuri, counsel for the petitioner argued that bare perusal of the FIR would show that no allegation of actual rape has come about and being a pure case of matrimonial dispute, in which the petitioner has no role to play except that he happens to have intervened into the matrimonial dispute, he has been falsely implicated. Thus, prayed for the anticipatory bail.

Baljinder S. Virk, Deputy Advocate General, stoutly opposed the grant of relief on the grounds that if allowed bail the petitioner might stifle the trial.

The High Court opined that no useful purpose will be served by keeping the petitioner in the custody as petitioner was already behind the bars for more than seven months and culpability shall be determined at the end of the trial which was not likely to conclude in the near future.  It was also instructed that anything observed herein shall not be construed as an expression on the merits of the case. Thus, ordered the release of petitioner on regular bail. [Dalip Bera v. State of Haryana, 2019 SCC OnLine P&H 669, decided on 28-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): An information alleging abuse of dominant position by Prateek Realtors India Pvt. Ltd. (Prateek Realtors) with regard to sale of an apartment in Noida, Uttar Pradesh, was dismissed by CIC on the ground that Prateek Realtors was not a dominant player in the market for provision of services for the development and sale of residential unit in Noida and Greater Noida. Earlier, Prateek Realtors developed a residential housing complex, namely, ‘Prateek Laurel’ on the plot in Noida and offered residential apartments.

The Informant booked a finished residential apartment in the said project, after payment of the booking amount and signed a residential apartment ‘allotment letter’. It was alleged in the information that the terms and conditions of the allotment letter were unilaterally prepared by Prateek Realtors India Pvt. Ltd. without consulting the Informant and also these terms and conditions were not shown to the Informant at the time of booking. It was further alleged that Prateek Realtors has inserted such terms and conditions in the allotment letter which made exit impossible for the Informant. It was also stated that since Prateek Realtors had already received a considerable amount, it imposed highly abusive conditions through the allotment letter on the Informant and also compelled him to sign one-sided agreements relating to maintenance, car parking and electricity supply.

After perusal of material on record and hearing both the parties, CCI noted, “The Commission observes that as per the information available in the public domain there are many other major developers like Amrapali, Supertech, Unitech, 3C Company, Lotus Greens, Saha Infratech, ATS Greens, Jaypee Infratech, Eldeco etc. which are competing with OP 1 in the relevant market with projects of varying magnitudes and having comparable sizes and resources. The presence of so many players in the relevant market acts as a competitive constraint for OP 1 in enjoying a position of strength which would enable it to operate independently of market forces in the relevant market….Therefore, in view of the Commission, OP 1 cannot be considered as a dominant player in the relevant market.” While observing that, “no case of contravention of the provisions of Section 4 of the Act (which pertains to abuse of dominant position) is made out against OP 1 (Prateek Realtors),” the Commission closed the matter. [A.S.Sharma v. Prateek Realtors India Pvt. Ltd., [2016] CCI 21, decided on 01.06.2016]