Law of Domestic Violence

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THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Index

CHAPTER I PRELIMINARY

SECTIONS
1. Short title, extent and commencement.
2. Definitions.

CHAPTER II DOMESTIC VIOLENCE

3. Definitions of domestic violence.

CHAPTER III POWERS AND DUTIES OF PROTECTION OFFICERS, SERVICE PROVIDERS, ETC.

4.Information to Protection Officer and exclusion of liability of informant.

5. Duties of police officers, service providers and Magistrate.

6. Duties of shelter homes.

7. Duties of medical facilities.

8. Appointment of Protection Officers.

9. Duties and functions of Protection Officers.

10.Service providers.

11.Duties of Government.

CHAPTER IV PROCEDURE FOR OBTAINING ORDERS OF RELIEFS

12. Application of Magistrate.

13.Service of notice.

14.Counselling.

15. Assistance of welfare expert.

16. Proceedings to be held in camera.

17. Right to reside in a shared household.

18. Protection orders.

19. Residence orders.

20. Monetary reliefs.

21. Custody orders.

22. Compensation orders.

23. Power to grant interim and ex parte orders.

24. Court to give copies of order free of cost.

25. Duration of orders.

26. Relief in other suits and legal proceedings.

27. Jurisdiction.

28. Procedure.

29. Appeal.

CHAPTER V  MISCELLANEOUS

30. Protection Officers and members of service providers to be public servants.

31. Penalty for breach of protection order by respondent.

32. Cognizance and proof.

33. Penalty for not discharging duty by Protection Officers.

34. Cognizance of offence committed by Protection Officer.

35. Protection of action taken in good faith.

36. Act not in derogation of any other law.

37. Power of Central Government to make rules.

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THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
ACT NO. 43 OF 2005
[13th September, 2005.]

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.
BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:—


CHAPTER I PRELIMINARY

  1. Short title, extent and commencement.—(1) This Act may be called the Protection of Women from Domestic Violence Act, 2005.
    (2) It extends to the whole of India except the State of Jammu and Kashmir.
    (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “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;

(b) “child” means any person below the age of eighteen years and includes any adopted, step or foster child;
(c) “compensation order” means an order granted in terms of section 22;

(d) “custody order” means an order granted in terms of section 21;

(e) “domestic incident report” means a report made in the prescribed form on receipt of complaint of domestic violence from an aggrieved person;

(f) “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;

(g) “domestic violence” has the same meaning as assigned to it in section 3;
(h) “dowry” shall have the same meaning as assigned to it in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961);

(i) “Magistrate” means the Judicial Magistrate of the first class, or as the case may be, the
Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure,1973(2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;
(j) “medical facility” means such facility as may be notified by the State Government to be a medical facility for the purposes of this Act;

(k) “Monetary relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;

(l) “notification” means a notification published in the Official Gazette and the expression  “notified” shall be construed accordingly;
(m) “prescribed” means prescribed by rules made under this Act;

(n) “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8;
(o) “protection order” means an order made in terms of section 18;
(p) “residence order” means an order granted in terms of sub-section (1) of section 19;

(q) “respondent” means any adult male person who is, or has been, in a domestic  relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;

(r) “service provider” means an entity registered under sub-section (1) of section 10;

(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;

(t) “shelter home” means any shelter home as may be notified by the State Government to be as shelter home for the purposes of this Act.

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CHAPTER II DOMESTIC VIOLENCE

3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise, injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.—For the purposes of this section,—

(i) physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes—

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;

(iv) “economic abuse” includes—

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited  to, house hold necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

Comment : Mental Injury and not simple cruelty is the subject matter of violence

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CHAPTER III POWERS AND DUTIES OF PROTECTION OFFICERS, SERVICE PROVIDERS, ETC.

4. Information to Protection Officer and exclusion of liability of informant.—(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.
(2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub-section (1).

5. Duties of police officers, service providers and Magistrate.—A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, 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 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code
(45 of 1860),wherever relevant:
Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.

6. Duties of shelter homes.—If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.

7. Duties of medical facilities.—If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility.

8. Appointment of Protection Officers.—(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act.

(2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may be prescribed.

9. Duties and functions of Protection Officers.—(1) It shall be the duty of the Protection Officer—
(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 (39 of 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.
(2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.

10. Service providers.—(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act.
(2) A service provider registered under sub-section (1) shall have the power to—
(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;
(b) get the aggrieved person medically examined and forward a copy of the medical repot to the Protection Officer and the police station within the local limits of which the domestic violence took place;
(c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.
(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.

11. Duties of Government.—The Central Government and every State Government, shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity through public media including the
television, radio and the print media at regular intervals;
(b) the Central Government and State Government officers including the police officers and the members of the judicial services are given periodic sensitization and awareness training on the issues addressed by this Act;
(c) effective co-ordination between the services provided by concerned Ministries and
Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and periodical review of the same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to women under this Act including the courts are prepared and put in place.

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CHAPTER IV PROCEDURE FOR OBTAINING ORDERS OF RELIEFS

12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.

Comment :

  • Mandatory provision as provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report(DIR) received by him from the Protection Officer or the service provider

Rule 5. Applications to the Magistrate – (1) Applications to the magistrate under sec 37 (2) (d) and sec 12 for protection, residence orders and other relief’s as provided under the Act shall be made in the manner prescribed in FORM II of schedule I .

(2) In case the person giving any information or aggrieved person is illiterate, the ontents of the application shall be read over and explained to her, by the protection officer, bearing a thumb impression of the aggrieved person, and shall be forwarded to the concerned police station.

(3) The applications under Section 12 of the Act shall be dealt with and the orders enforced in the manner prescribed under Section 125 of the Cr.PC     Image result for click


13. Service of notice.—(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.

(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.

Comment: The notice/summon for appearance under S-13 (1) of the Act shall be as  prescribed under the Cr.PC.(Rule 9)


14. Counselling.—(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed.
(2) Where the Magistrate has issued any direction under sub-section (1), he shall fix the next date of hearing of the case within a period not exceeding two months.

15. Assistance of welfare expert.—In any proceeding under this Act, the Magistrate may secure the services of such person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.

16. Proceedings to be held in camera.—If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera.


17. Right to reside in a shared household.—(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.


18. Protection orders.—The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person 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.


19. Residence orders.—(1) 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—

(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:
Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.


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

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

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

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), 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.

Comment :

  • whether the minor children of the aggrieved person are entitled for maintenance under Section 20 of the Protection of Women from Domestic Violence Act, 2005 if the trial Magistrate has come to a conclusion that the domestic violence has not been proved?

    The monetary relief is available for the children of the aggrieved person if the monetary relief is required to meet the expenses incurred by the aggrieved person as a result of domestic violence. The monetary relief is also permissible in case losses are suffered by the aggrieved person as a result of the domestic violence.  The monetary relief is available to children of the aggrieved person under Section 20 of the Act. However, the aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on the part of the respondent.


Comparative study  of maintenance under multiple Acts

Section 125 in The Code Of Criminal Procedure, 1973
125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.– If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

Definition of maintenance

sec 3 (b) “maintenance” includes
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage;

18. Maintenance of wife– (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.


21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, 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:

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.


22. Compensation orders.—In addition to other reliefs as may be granted under this Act, 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.


23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) 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.

Comment: 

  • Sec 2(a) definition of aggrieved person. 
  • Interim order can be issued to the both parties.
  • Interim relief under DV Act cannot be granted without conducting inquiry as per Cr P C summons case as decided in Krishna Murthy Nookula vs Y Savitha – [Karnataka HC Judgment]

What do you mean by prima facie case is laid down by the Apex Court in the case of Martin Burn Ltd. v. R. N. Banerjee, wherein it has been observed as under:
“. . . . . While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence let it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record.”[Martin Burn Ltd vs R.N Banerjee on 20 September, 1957 Equivalent citations: 1958 AIR 79, 1958 SCR 514]


Comparative study

Under Hind Marriage Act

24. Maintenance pendente lite and expenses of proceedings.-
Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.


24. Court to give copies of order free of cost.—The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police officer in-charge of the police station in the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court and if any service provider has registered a domestic incident report, to that service provider.


25. Duration and alteration of orders.—(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.

Comment:-

  • Only protection order is continuous in nature
  • A magistrate has the power to modify his /her Order

26. Relief in other suits and legal proceedings.—(1) 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 a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.


27. Jurisdiction.—(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, 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, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.


28. Procedure.—(1) Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

Comment :

  • Procedure for appeal has not been provided.

29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

Comment:-

  • Appeal could be preferred either against the final order or interim order within 30 days of the order before Session Court.

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CHAPTER V MISCELLANEOUS

30. Protection Officers and members of service providers to be public servants.—The Protection Officers and members of service providers, while acting or purporting to act in pursuance of any of the provisions of this Act or any rules or orders made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).


31. Penalty for breach of protection order by respondent.—(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those
provisions.


32. Cognizance and proof.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.


33. Penalty for not discharging duty by Protection Officer.—If any Protection Officer fails or 
refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.


34. Cognizance of offence committed by Protection Officer.—No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it in this behalf.
35. Protection of action taken in good faith.—No suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.


36. Act not in derogation of any other law.—The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

37. Power of Central Government to make rules.—(1) The Central Government may, by
notification, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) the qualifications and experience which a Protection Officer shall possess under
sub-section (2) of section 8;
(b) the terms and conditions of service of the Protection Officers and the other officers
subordinate to him, under sub-section (3) of section 8;
(c) the form and manner in which a domestic incident report may be made under clause (b) of sub-section (1) of section 9;
(d) the form and the manner in which an application for protection order may be made to the Magistrate under clause (c) of sub-section (1) of section 9;

(e) the form in which a complaint is to be filed under clause (d) of sub-section (1) of section 9;
(f) the other duties to be performed by the Protection Officer under clause (i) of sub-section (1) of section 9;
(g) the rules regulating registration of service providers under sub-section (1) of section 10;
(h) the form in which an application under sub-section (1) of section 12 seeking reliefs under this Act may be made and the particulars which such application shall contain under sub-section (3) of that section;
(i) the means of serving notices under sub-section (1) of section 13;
(j) the form of declaration of service of notice to be made by the Protection Officer under
sub-section (2) of section 13;
(k) the qualifications and experience in counselling which a member of the service provider shall possess under sub-section (1) of section 14;
(l) the form in which an affidavit may be filed by the aggrieved person under sub-section (2) of section 23;
(m) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

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THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2005

In exercise of the powers conferred by Section – 37 (1) of the “Protection of Women fro Domestic Violence Act, 2005 (of 2005)” the Central Government hereby makes the following rules for carrying out the provisions of the Act.

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 Related imageLaw of England

Protection from Harassment Act 1997

An Act to make provision for protecting persons from harassment and similar conduct.

Serious Crime Act 2015

A new criminal offence of coercive or controlling behaviour against an intimate partner or family member came into force on 29 December 2015. The offence was created, following consultation, through section 76 of the Serious Crime Act 2015. The maximum penalty for someone found guilty is five years’ imprisonment or a fine, or both.

Domestic Violence, Crime and Victims Act 2004

An Act to amend Part 4 of the Family Law Act 1996, the Protection from Harassment Act 1997 and the Protection from Harassment (Northern Ireland) Order 1997; to make provision about homicide; to make common assault an arrestable offence; to make provision for the payment of surcharges by offenders; to make provision about alternative verdicts; to provide for a procedure under which a jury tries only sample counts on an indictment; to make provision about findings of unfitness to plead and about persons found unfit to plead or not guilty by reason of insanity; to make provision about the execution of warrants; to make provision about the enforcement of orders imposed on conviction; to amend section 58 of the Criminal Justice Act 2003 and to amend Part 12 of that Act in relation to intermittent custody; to make provision in relation to victims of offences, witnesses of offences and others affected by offences; and to make provision about the recovery of compensation from offenders.

Family Law Act 1996

An Act to make provision with respect to: divorce and separation; legal aid in connection with mediation in disputes relating to family matters; proceedings in cases where marriages have broken down; rights of occupation of certain domestic premises; prevention of molestation; the inclusion in certain orders under the Children Act 1989 of provisions about the occupation of a dwelling-house; the transfer of tenancies between spouses and persons who have lived together as husband and wife; and for connected purposes.

Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill: Briefing for Lords Stages

Establish a Domestic Violence and Abuse Commissioner
• Introduce a statutory definition of domestic violence and abuse
• Create a “consolidated new domestic abuse civil prevention and
protection order regime”
• Create a new aggravated offence if behaviour is directed at a child

Crown Prosecution service Guidelines on Domestic violence

The Government’s definition of domestic violence is:

“any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality.”

The Crown Prosecution Service (CPS) is concerned with criminal offences that occur in a domestic context whatever the age of the victims and abusers.

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Introduction to an Ideal Domestic Violence Law

In this introduction, I tried to put some basic ingredients of an Ideal Domestic Violence statute, which eventually not available or fully discussed in Indian domestic violence act 2005 (Act no 43 of 2005) . Indian Statute is completely biased and failed to take the issue of false allegations. Again another issue could be raised regarding the Monetary relief or interim petition for monetary relief, which could easily be confused with maintenance proceeding under matrimonial act or u/s 125 of the Criminal Procedure Code. The cause of action for asking monetary help by a women should be distinguished . But Indian experience law application has been confusing and overlapping. Therefore multiplicity of proceeding against husband became reality. And more horrible part of the law is that there is no effective redressal against false acquisition.   This article shall provide fair criticism of the law and would adopt a balance treatment towards the both gender. True to be said that Indian women are till weak even after 60 years of getting Independence but the approach of law nonetheless shall be biasless.

  1. Meaning of domestic violence and its scope

Domestic violence means any unlawful act, omission or behaviour which results in death or the direct infliction of physical, sexual or mental injury to any complainant by a respondent and includes the following—

       (a)   physical abuse;

       (b)   sexual abuse;

       (c)   emotional, verbal and psychological abuse;

`     (d)   economic abuse;

       (e)   intimidation;

        (f) harassment;

       (g)   stalking;

       (h)   malicious damage to property;

(i)   forcible entry into the complainant’s residence where the parties do not share the same residence;

(j)   depriving the complainant of or hindering the complainant from access to or a reasonable share of the use of the facilities associated with the complainant’s place of residence;

(k)   the unreasonable disposal of household effects or other property in which the complainant has an interest;

(l)   abuse derived from the following cultural or customary rites or practices that discriminate against or degrade women—

(i)   forced virginity testing; or

(ii)   female genital mutilation; or

 (iii)   pledging of women or girls for purposes of appeasing spirits;or

 (iv)   forced marriage; or

(v)   child marriage; or

(vi)   forced wife inheritance; or

(vii)   sexual intercourse between fathers-in-law and newly married daughters-in-law;

(m)   abuse perpetrated on the complainant by virtue of complainant’s age, or complainant’s physical or mental incapacity;

(n)   abuse perpetrated on the complainant by virtue of complainant’s physical, mental or sensory disability, including a visual, hearing or speech functional disability;

(o)   abuse perpetrated on the complainant by virtue of complainant’s mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind;

(p) any act of domestic violence described in paragraphs (a), (b), (c), (e), (f), (g), (h) or (i) when it is perpetrated on the person or property of the complainant’s representative.

(2)  For the purposes of—

       (a)   subsection (1)(a), “physical abuse” includes any act or threatened act of physical violence towards a complainant;

       (b)   subsection (1)(b), “sexual abuse” includes any conduct that humiliates, degrades or otherwise violates the sexual integrity of the complainant;

       (c)   subsection (1)(c), “emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a complainant, including but not limited to the following—

                  (i)   repeated insults, ridicule or name-calling; or

                 (ii)   repeated threats to cause emotional pain; or

(iii) the repeated exhibition of obsessive possessiveness which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security; or

(iv)   any act, omission or behaviour constituting domestic violence as defined in subsection (1) which, when committed in the presence of minor members of the family, is likely to cause them mental injury;

 (d)   subsection (1)(d), “economic abuse” includes—

                  (i)   the unreasonable deprivation of economic or financial resources to which a complainant is entitled under the law or which the complainant requires out of necessity, including household necessities, medical expenses, school fees, mortgage bond and rent payments, or other like expenses;

                 (ii)   denying the complainant the right to seek employment or engage in any income-generating activity;

(e)   subsection (1)(e), “harassment” means engaging in a pattern of conduct that induces in a complainant the fear of imminent harm or feelings of annoyance and aggravation, including—

 (i)   watching or loitering outside or near the building or place where the complainant resides, works, carries on business, studies or happens to be;

 (ii)   repeatedly making or sending or causing another person to repeatedly make or send abusive phone calls or electronically-transmitted messages to the complainant, whether or not conversation ensues;

 (iii)   sending, delivering or causing the delivery of offensive or abusive letters,  telegrams, packages, facsimiles, electronic mails or offensive objects to the complainant;

(f)   subsection (1)(f), “intimidation” includes uttering or conveying a threat or causing a complainant to receive a threat which induces a fear of imminent harm in the complainant;

(g)   subsection (1)(g), “stalking” includes following, pursuing, or accosting the complainant.

(3)  For the purposes of  subsection (2)(e) and (f) “imminent harm”, in relation to a complainant, includes harm that the complainant fears to be imminent taking into consideration the history of respondent’s known violent behaviour towards the complainant or other relevant factors.

2. Determination of application if Domestic Violence

(1)  The court shall as soon as possible consider an application made in terms of section 12  and may for such purposes—

 (a)   enquire whether an interim protection order or protection order has at any time been issued to either of the parties;

 (b)   call for such evidence, whether oral or by affidavit, as it considers necessary, including medical evidence:

Provided that any such medical evidence shall be supported by a police report forming the basis on which an examination of a victim of domestic violence was made;

 (c)   examine any witness before the court.

(2) Where the inquiry provided for in subsection (1)(a) reveals that there is an existing interim protection order or protection order the court shall—
(a) consider whether there is any change in circumstances that warrants the granting of a fresh protection order; and
(b) where appropriate, direct the parties to make application under section 12.

3. Issue of interim protection order
(1) Where, upon an application made in terms of section 23 ( or such type of provision), the court is satisfied that prima facie—
(a) the respondent has committed, is committing or is threatening to commit an act of domestic violence; and
(b) it is necessary or desirable to issue immediately an order to protect the complainant from serious or substantial harm or discomfort or inconvenience, whether physical, emotional or economic, which results or may result from such actual or threatened domestic violence;
the court shall issue an interim protection order against the respondent notwithstanding that he or she has not been given notice of the application or has not been before the court.
(2) An interim protection order may, where appropriate, contain any direction, prohibition or award which may be contained in a protection order issued in terms of relevant Provision.
(3) An interim protection order must be served on the respondent in the prescribed manner and must contain a notice calling upon the respondent to show cause, on a date specified in the order, why a protection order should not be issued.
(4) Whenever a court issues an interim protection order the court shall issue a warrant for the arrest of the respondent which shall be attached to the order and which shall be suspended on condition that the respondent complies with the order.
(5) Where upon an application made in terms of section 23 the court is satisfied that, prima facie, the respondent has committed, is committing or threatening to commit an act of domestic violence but that the circumstances do not justify or require the issue of an interim protection order, it may issue a notice calling upon the respondent to show cause why a protection order should not be made.
(6) An interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or a notice issued in terms of subsection (5) shall be served upon the respondent as soon as possible by any police officer:
Provided that, where the complainant so requires, service may be effected, at the complainant’s expense, by the messenger of the court or deputy sheriff, as the case may be.
(7)  The court that issues an interim protection order shall supply the complainant or the complainant’s representative with a certified copy of any interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or notice issued in terms of subsection (5), and, additionally or alternatively, forward the same to the police station nominated by the complainant or the complainant’s representative.
(8) An interim protection order shall remain in force until it is replaced by a protection order or varied or revoked by a competent court.

(9) Any person who fails to comply with the terms and conditions of an interim protection order shall be guilty of an offence and liable to a fine  or imprisonment or to both such fine and such imprisonment

4. Application for revocation, variation or extension of protection orders

(1)  Where there is a change of circumstances, a complainant, complainant’s representative or respondent may apply to the court for the revocation or variation of an interim protection order or a protection order or for the extension of any time limit attached to any direction or award contained therein.

(2)  A complainant’s representative may, with the leave of the court, apply for a revocation, variation or extension of a protection order without the consent of the complainant and the court, in determining whether or not to grant leave, shall have regard to all the circumstances including those referred to in section 7(2).

(3)  A complainant’s representative shall not, under any circumstances, make an application for a revocation, variation or extension of a protection order that may prejudice the complainant

(4) An application under subsection (1) or (2) shall be lodged with the clerk or registrar of the court who shall—
(a) fix a date for the hearing of the application; and
(b) place the application before the court as soon as possible, and in any event not later than forty-eight hours after lodging the application; and
(c) give notice of the date of hearing to other interested parties.
(5) On the date fixed for the hearing of the matter, the court shall consider the application and may for that purpose—
(a) call for such evidence, whether oral or by affidavit, as it considers necessary;
(b) examine any witness before the court.
(6) If the court is satisfied that good cause has been shown it may revoke or vary any interim protection order or protection order or may extend any such order by a period not exceeding twenty-four months.
(7) The  court shall give notice to interested parties of any revocation, variation or extension granted in terms of this section.

5. Filing false complaint and affidavit

 (1)  Any person who makes any false statement in any application or affidavit made in terms of this Act, knowing such statement to be false or not believing it to be true, shall be guilty of an offence and liable to a fine  or imprisonment five years or to both such fine and such imprisonment.

(2)  Where any offence other than one referred to in this Act is committed by a respondent upon a complainant during or in furtherance of the commission any act of domestic violence, the court convicting the respondent therefor shall regard such circumstances as aggravating when assessing the sentence to be imposed.

(3)  For the avoidance of doubt it is declared that the prosecution of a respondent under this Act or any other law shall not prevent the complainant from seeking protection and redress in terms of Domestic violence Act.

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Image result for domestic violence gif