Introduction
D.V. Act provides a remedy in civil law for the protection of victims of the domestic violence as noted in the Statement of Object and Reasons.
The basic objective in enacting the Act is to secure various rights to a woman living in matrimony or in a relationship akin to matrimony, or any domestic relationship. Domestic violence, is, per se, not a criminal offence but is defined extensively and comprehensively to include various conditions. The woman exposed to such domestic violence is given the right to move to Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, right to residence, compensation etc. or even move to Court seized of any other pending proceeding, such as divorceDivorce The lawful thing Allah hates most is divorce. (Abu Dawud) and maintenance etc. (Section 26). Section 17 has, for the first timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”), enacted a right to residence in favor of such women. The Act being a beneficial one, the Court should adopt a construction to its provisions which advances the parliamentary intention rather than confining it. If the latter course is adopted the result would be to defeat the object of the law. As noticed earlier, domestic violence is per se not an offence but its incidence or occurrence enables a woman to approach the Court for more than one relief. The Court is empowered to grant ex-parte relief and ensure its compliance, including by directing the police authorities to implement the order, particularly those relating to residence etc. If such an order is violated by the respondent (a term defined in the widest possible terms, to include female relatives of the husband or the male partner etc), such action would constitute a punishable offence, which can be tried in a summary manner under Section 31 of the Act[ In Shambhu Prasad Singh v. Manjari 2012 (190) DLT 647]
Failure of Marriage: Marriage is an institution of great social relevance and with social changes, this institution has also changed correspondingly. However, the institution of marriage is subject to humanHuman Ο άνθρωπος (Humanum> Homo sapiens) मानव:. We have failed to consider the minimum need to be a 'human'. For Christians, human beings are sinful creatures, who need some saviour. For Evolution biology a man is still evolving, for what, we don´t know. For Buddhist Nagarjuna, the realisation of having a human body is a mere mental illusion. We are not ready to accept that a human is a computer made of meat. For a slave master, a human person is another animal, his sons and daughters are his personal property. frailty and error. Marriage is certainly not a mere “reciprocal possession” of the sexual organs as was philosophized by I. Kant (The Philosophy of LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. page 110, W. Hastie translation 1887) nor can it be romanticized as a relationship which Tennyson fancied as “made in HeavenHeaven स्वर्गे लोके न भयं किञ्चनास्ति न तत्र त्वं न जरया बिभेति । उभे तीर्त्वा अशनायापिपासे शोकातिगो मोदते स्वर्गलोके ॥ १२ ॥ (Kathopanishad). स्वर्ग (Swarga) is neither physical nor a spiritual place or entity. In Torah Elohim is the creator of שמים shamayim (Sky). Heavenly father = pater caelestis (Ουράνιος πατέρας) in NT. Christian heaven is a Paradisus/Park/παράδεισος where Trinity lives. جَنَّة (Janna) is the place, somewhere in sky where awarded people will get a place.” (Alymer’s Field, in Complete Works 191, 193 (1878)). In many cases, marriages simply fail for no fault of the parties but as a result of discord and disharmony between them. In such situations, putting an end to this relationship is the only way out of this social bondage. But unfortunately, initially the marriage laws in every country were “fault oriented’. Under such laws marriage can be dissolved only by a Court’s decree within certain limited grounds which are to be proved in an adversarial proceeding. Such ‘fault’ oriented divorce laws have been criticized as ‘obsolete, unrealistic, discriminatory and sometimes immoral’ (Foster, divorce Law Reform; the choices before State page 112)[AIR 2009 SC 2840 : (2009) 8 SCR 631 : JT 2009 (8) SC 146 : (2009) 7 SCALE 331]
Continuing offence – In State of Bihar v. Deokaran Nenshi[(1972) 2 SCC 890] and reproduced a passage from the same which is to the following effect:-
“A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”
The Proceeding is Civil in Nature
The judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) of this Apex Court reported in (2007) 6 SCC 785 (Para 9) titled Iqbal Bano vs. State of U.P. and Anr whereby the provisions contained in Section 125 of the Cr.P.C. have been aptly considered and the relevant portion of the order passed in Iqbal Bano’s case reads as under :
“10. Proceedings under Section 125, Cr.P.C. are civil in nature. Even if the Court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125, Cr.P.C. and claims made under the Act are tried by the same court. In Vijay Kumar Prasad vs. State of Bihar (2004) 5 SCC 196 it was held that proceedings under Section 125, Cr.P.C. are civil in nature. It was noted as follows (SCC p.200, Para 14) :
14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126 (1) an application by the father, or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives.”
Fair proceeding: A Court’s proceeding must have a sanctity and fairness. It cannot be conducted for the convenience of one party alone. [AIR 2009 SC 2840 : (2009) 8 SCR 631 : JT 2009 (8) SC 146 : (2009) 7 SCALE 331]
INTERPRETATION-In Chinnamarkathian alias Muthu Gounder v. Ayyavoo alias Periana Counder (1982) 1 SCC 159 the Supreme CourtSupreme Court The Court of last resort. Supreme Court of India (26/01/1950), Supreme Court of USA (1798), Supreme Court of UK (1/10/2009), Supreme Court of Canada (1949), International Court of Justice (22/05/1947), > Supreme Court Network observed that it is a well- settled canon of construction that in construing the provisions of such enactments, the Court should adopt that construction with advances, fulfills and furthers the object the Act rather than the one which would defeat the same and render the protection illusory.
Domestic Abuse Bill UK
Again the object of the D.V. Act appears to be that Section 498A IPC dealing with the cruelty to the women is not an appropriate remedy because with the arrest of the husband and his family members, leads to such acrimony that it becomes difficult for the parties to live together again. Secondly, there was no provision to protect the women from further cruelty and to protect her being outstayed from matrimonial home. D.V. Act empowers the Magistrate to pass a protection order and appoint a protection officer to protect the women from further violence. The Magistrate is also empowered to pass an injunction order to restrain the women from being thrown out from her matrimonial home. The Magistrate is also empowered to pass appropriate orders for maintenance and compensation to the women. In proceedings under Section 12 of the D.V. Act, the Magistrate is empowered to award the reliefs under Sections 8 to 23 of the Act. Since the proceedings under Section 12 of the D.V. Act are civil in nature, it does not aggravate the situation which happens with the arrest of the husband and his family members under Section 498A IPC. The breach of the protection order under Section 18 amounts to an offence under Section 31 of the D.V. Act. However, if there is no breach of the protection order under Section 18, the proceedings remain civil in nature. 19.3 The proceedings under Sections 12 and 18 to 23 of D.V. Act are purely civil in nature. The reliefs under Sections 18 to 22 of the D.V. Act can be sought in the Civil Court, Family Court or Criminal Court as they are civil in nature and have nothing to do with the conviction for any offence as provided in Section 26(1) of D.V. Act.
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 the matrimonial act or u/s 125 of the Criminal Procedure Code. The cause of action for asking monetary help by a woman 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 the false acquisition. This article shall provide fair criticism of the law and would adopt a balanced treatment towards both genders. 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 baseless.
In the case of Saraswathy Vs. Balu, AIR 2014 SC 857, Hon’ble Apex Court held that, the conduct of the parties prior to the coming into force P.W.D. Act, 2005 can be taken into consideration while passing an order.
Effect of Divorce: An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the Respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief u/s 20, Child Custody u/s 21, Compensation u/s 22 and interim or ex parte order u/s 23 of the Domestic Violence Act, 2005[JUVERIA ABDUL MAJID PATNI Vs. ATIF IQBAL MANSOORI (2014) 10 SCC 736]
STRIDHAN: The Domestic Violence Act means to punish men who abuse women in relationship. It extends to all man-woman relationships, and protects divorced women from their former husbands. in Krishna Bhattacharjee vs Sarathi Choudhury (2016) 2 SCC 705: 2016 Crl LJ 330 held that a wife who is living separately from the husband even under a decree of judicial separation can claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. her Stridhan back from the husband U/S 12 of the Domestic Violence Act.
In Kamatchi Vs. Lakshmi Narayanan-SC-13/04/2022 “The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. We hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance”.
PRIMA FACIE CASE: Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman. Section 20 of the Act empowers the court to order for monetary relief to the “aggrieved party”. When acts of domestic violence is alleged, before issuing notice, the court has to be prima facie satisfied that there have been instances of domestic violence [Shyamlal Devda and Others Vs. Parimala-22/1/2020]
CONNECTION: There are no specific allegations as to how other relatives of appellant No.14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. The High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission. was not right in saying that there was prima facie case against the other appellants No.3 to 13. Since there are no specific allegations against appellants No.3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed [Shyamlal Devda and Others Vs. Parimala-22/1/2020]
LIMITATION: Supreme Court‟s decision in Inderjit Singh Grewal vs State of Punjab & ors on 23.08.2012, “the present case should have been dismissed for not filling within a period of one year from the date of the alleged incident. Almost after two years from divorce, the complainant realized that she was subjected to domestic violence and filed the present case the Ld. Counsel argued. The domestic violence falsely alleged had also taken place in the month of April, 2016. Hence, filling the instant Complaint almost after almost two years was neither reasonable nor maintainable.” It further said that a complaint under the Domestic Violence Act could not be filed after one year from the date of incident. In view of Sec 468 Cr.PC and Sec 28 and 32 of Domestic Violence Act, it could be filed only within a period of one year from the date of incident.
LIMITATION FOR TAKING COGNIZANCE OF OFFENCE: Let us now consider the applicability of these principles to cases under the Act. The provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act. [Kamatchi Vs. Lakshmi Narayanan-SC-13/04/2022]
PROOF OF DOMESTIC VIOLENCE: The Hon’ble High Court of Himachal Pradesh in Anil Kumar vs Shashi Bala on 2nd May 2017 held that if there is no evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 with regard to maltreatment or violence, no order for maintenance can be granted under the Domestic Valence Act. The Court says, “Since there was no evidence with regard to maltreatment or violence, learned Appellate Court below ought to not have granted any amount on account of maintenance” the Hon’ble Court says. The Hon’ble Bombay High Court on 4th May, 2018 in Writ Petition No. 3553 of 2018 Shri Prakash Kumar Singhee Vs Smti Amrapali Singhee with Contempt Petition No. 459 of 2017 Smti Amrapali Singhee Shri Prakash Kumar Singhee said that the Domestic Violence Act, 2005 could not be invoked simply for claiming maintenance unless the Party alleges an act of Domestic. The Hon‟ble Madras High Court in Smti Jeyanthi vs Jeyapaul, Crl.R.C (MD) No. 138 of 2014 decided on 15.10.2015 held that mere registration of complaint will not amount to cruelty…. Wife is not eligible to claim maintenance without proof of domestic violence. This Court would therefore hold the view that the Complainant should have approached the Court as “aggrieved person”. The Complainant has to prove that she was/had been subjected to domestic violence. Without proving the domestic violence allegedly suffered by the alleged aggrieved, granting the various reliefs claimed in toto at this initial stage would be unjust and would cause serious prejudice to the Respondent.
PROCEDURE: The Court dealing with proceedings under Sections 12, 18 to 23 can formulate its own procedure under Section 28(2) of the D.V. Act to minimise the effect of summonsSummons It means an application to the Court in relation to an action or appeal which has to be served on other parties or non‑parties. case under Cr.P.C. Thus, any departure from the provisions of Code of Criminal Procedure does not vitiate the proceedings initiated under Section 12. Punishment only if a person commits breach of protection order passed under Section 18 or an order of interim protection passed under Section 23 of the Act. Thus, commission of acts of domestic violence by themselves do not constitute any offence punishable under the Act and it is only the breach of the order passed by the Magistrate either under Section 18 or under Section 23 of the Act which has been made punishable under Section 31 of the Act. No criminal liability is thus incurred by a person under this Act merely on account of his indulging into acts of domestic violence or depriving a woman from use of the shared household. It is only the reach of the orders passed under Sections 18 and 23 of the Act, which has been made punishable.[Proceeding in DV Act is Civil in Nature but the Trial/Enquiry etc Procedures shall be guided by Cr.P.C]
RECALLING SUMMONS: In Jaydipsinh Prabhatsinh Jhala v. State of Gujarat, 2010 CriLJ 2462, the Gujarat High Court considered the question as to whether the proceedings under D.V. Act are of criminal nature and whether the Magistrate has the power to recall the summons issued to the respondent. The Gujarat High Court held that the Magistrate is empowered to recall the summons in view of Section 28(2) of the D.V. Act which empowers the Court to lay down its own procedure.
Relevant portion of the said judgment is reproduced hereunder.
“2.1 Second question is the nature of proceedings that the Magistrates conduct under the Act and the procedure that has to be adopted for the same. In other words, question is whether the proceedings under the Act are strictly of criminal nature……….
xxx xxx xxx
10. For the purpose of securing justice to such oppressed women, who complain of domestic violence, wide powers are given to the Magistrate permitting him to pass appropriate orders, which the Magistrate can pass in an application under sub-section (1) of section 12 of the said Act. Said powers include passing an order for residence to an aggrieved person or even removing the respondent from the shared household. Such powers include grant of monitory relief and compensation, powers of handing over the custody of children to the aggrieved person. The Act specifically empowers the Magistrate to pass such orders by way of interim direction or even ex-parte interim orders. Section 26 of the Act as already noted permits the Civil Court, Family Court or Criminal Court, where any legal proceeding are pending to grant any of the reliefs available under Sections 18 to 22 of the said Act. Though Section 28 of the Act provides that all proceeding under Sections 12 and 18 to 23 and for the offence under Section 31 of the said Act shall be governed by the provisions of the code of criminal procedure, 1973, sub-section (2) of section 28 clearly provides that nothing contained 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 of the said Act. In other words, though procedure to be followed in the said proceedings is that provided under the Code of Criminal Procedure, the Magistrate can still lay down his own procedure while dealing with the applications under sub-section (1) of section 12 or while considering grant of interim or ex-parte ad-interim relief orders under sub-section (2) of Section 23 of the Act. Thus whole purpose of this legislation appears to be to provide for a smooth machinery to ensure justice to oppressed women by cutting through legal red-tapism and passing such orders as may be found necessary in the interest of justice in the facts of the case.
xxx xxx xxx
20. In so far as the second question is concerned, introduction to the objects and reasons provides that in order to provide a remedy in civil law, Bill is introduced in the Parliament. Again in Para Nos.2 & 3 of the objects and reasons also, it is stated that existing civil law does not address to the phenomenon of domestic violence and, therefore, to provide a remedy under civil law to protect a woman from being victim of domestic violence, the Bill is introduced. Predominantly thus aim of the legislature is to provide civil remedies to a woman who is subjected to domestic violence.
21. Apart from the statement of objects and reasons even the different provisions contained in the Act make it clear that predominantly the rights and remedies created under the Act are in the nature of civil rights. Barring Sections 31 and 33, which provide for penalty for breach of protection order and Protection Officer not discharging his duties respectively, there are no other penal provisions in the Act. On the other hand, the act provides for remedies to a woman subjected to domestic violence, empowers the Magistrate to pass variety of orders to make such remedies effective. All these proceedings are in the nature of civil remedy.
22. It is true that the procedure to be adopted by the Magistrate while dealing with the application under Section 12 of the Act and other provisions are governed by the provisions of the Code of Criminal Procedure as provided under sub-section (1) of section 28 of the Act. However, under sub-section (2) of Section 28 of the Act, it is clarified that the Magistrate while disposing of the application under Section 12 of the Act or under subsection (2) of Section 23 of the Act may also lay down his own procedure for disposal.
23. In view of the nature of the proceedings before the Magistrate and in view of the procedural flexibility provided by the legislature to the Magistrate in deciding the applications under Section 12(1) of the Act, it cannot be stated that the Magistrate is bound by the straight jacket formula or procedure laid down under the Code of Criminal Procedure. In a given case, it would be open for the Magistrate to make deviation therefrom as may be found necessary in the interest of justice.”
PETITION BEFORE CIVIL COURT: Rajkumar v. Sarita, 2009 (1) Mh.L.J. 466, relied upon by the respondent, supports the petitioner. In the above case, the Bombay High Court held that reliefs under Sections 18, 19, 20, 21, and 22 of the D.V. Act can be sought in any legal proceedings 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. The relevant portion of the judgment is reproduced hereunder:-
“12. Reading of the aforesaid provisions would go to show that Section 26 provides that any relief available under Sections 18, 19, 20, 21 and 22 can also be sought in any legal proceedings, 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.”
In Sudhannya K.N. v. Umasanker Valsan, (2013) 1 KLT 375, the wife filed the petition before the Family Court under Section 18(2) of the HinduHindu A geographical name given by non-Hindus, who came to visit Bharatvarsha (Hindusthan). Sanatan Dharma is the actual Dharmic tradition of the Hindus. People who live in Hindusthan are Hindu, whether they Follow Islam, Chris, Buddha, Mahavira, or Nanaka. In this way, Tribals are also Hindu. Adoption and Maintenance Act, 1956 for past maintenance. In the aforesaid proceedings, the wife filed an application under Section 26 of the D.V. Act seeking reliefs under Section 18 and 19 of the D.V. Act. The Family Court dismissed the application holding that it does not have the jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. to pass an interim order under Section 18 and 19 of the D.V. Act. The Gujarat High Court held that the Family Court had the power to pass an interim order. The relevant portion of the said judgment is reproduced hereunder:-
“11…………In our opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. Section 26 of the D.V. Act gives option to the aggrieved person, the beneficiary of the legislations, to approach either the Magistrate under Section 12 of the Act or the Family Court if the person needs the reliefs contemplated under Sections 19, 19, 20, 21 and 22 of the D.V. Act.
xxx xxx xxx
13………. The power to grant interim orders should be conceded to all courts having power to pass final orders as the very purpose of passing the interim orders is to prevent a situation of the final order becoming meaningless.
xxx xxx xxx …………We set aside the impugned order and hold that the Family Court has power in view of Section 26 of the D.V. Act to pass interim protection orders as well as interim residence orders”
However, no independent application is maintainable before the Civil Court or Family Court, if no proceedings are pending before them affecting the aggrieved person and the respondent.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
CHAPTER I PRELIMINARY
SECTIONS
- Short title, extent and commencement.
- 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 the respondent.
32. Cognizance and proof.
33. Penalty for not discharging duty by Protection Officers.
34. Cognizance of the offence committed by Protection Officer.
35. Protection of action taken in good faithFaith πίστει..
36. Act not in derogation of any other law.
37. Power of Central Government to make rules.
The Protection of Women from Domestic Violence Rules, 2006
1. Short title and commencement
2. Definitions
3. Qualifications and experience of Protection Officers
4. Information to Protection Officers
5. Domestic incident reports
6. Applications to the Magistrate
7. AffidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. for obtaining ex-parte orders of Magistrate
8. Duties and functions of Protection Officers
9. Action to be taken in cases of emergency
10. Certain other duties of the Protection Officers
11. Registration of service providers
12. Means of service of notices
13. Appointment of Counsellors
14. Procedure to be followed by Counsellors
15. Breach of Protection Orders
16. Shelter to the aggrieved person
17. Medical facility to the aggrieved person
Form I
Form II
Form III
Form IV
Form V
Form VI
Form VII- Notice to the respondent
When the statement of objects and reasons of D.V.Act is perused, it was felt by the law framers the phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code but civil law does not, however, address this phenomenon in its entirety. It was with this observation the Legislature proposed to enact the Domestic Violence Act keeping in view the rights guaranteed under Articles 14, 15 and 21 of the ConstitutionConstitution The Constitution encompasses the global system of rules governing constitutional authority. Simply reading selected provisions of the written text may be misleading. Understanding the underlying principles, such as federalism, democracy, constitutionalism, the rule of law, and respect for minorities, is crucial. Democratic institutions must allow for ongoing discussion and evolution, reflected in the right of participants to initiate constitutional change. This right entails a reciprocal duty to engage in discussions. Democracy involves more than majority rule, existing within the context of other constitutional values. Therefore, a profound understanding of these principles informs our appreciation of constitutional rights and obligations. Read more to provide for a remedy under the civil law (Emphasis Supplied) which is intended to protect the women from being a victim of domestic violence and to prevent the occurrence of domestic violence in the society.
In Naorem Shamungou Singh v. Moirangthem Guni Devi, AIR 2014 Mani 25, the Manipur High Court held that the D.V. Act provides the remedies available under Civil law. The Court further held that though Section 28(1) of the D.V. Act provides that all proceedings shall be governed by provisions of Cr.P.C. but Section 28(2) empowers the Court to lay down its own procedure for disposal of the application under Sections 12 and 23(2) of the D.V. Act. The flexibility has been given to the Court as the proceedings under Sections 12 and 18 to 23 provide civil remedies whereas Section 31 provides a criminal offence. Relevant portion of the said judgment is reproduced hereunder:
“11. In this context, it may be noted that Protection of Women from Domestic Violence Act, 2005 was enacted by the Parliament keeping in view that phenomenon of domestic violence which is widely prevalent has remained largely invisible in the public domain and even though there is a specific offence under section 498-A of the Indian Penal Code dealing with cruelty by husband and relatives, there is no civil law to address this issue. The Parliament keeping in mindConciousness Through it, a living being exists. It exists even at the molecular level. Mind is not able to control it. The mind is an internal organ that exists separate from consciousness. The mind (depending on bio-electricity) can not work without memory and information, but consciousness can. Dreams come from consciousness. Read: Mind is man. the said aspect and to provide the remedy under the Civil law which is intended to protect the women from being victims of domestic violence and to prevent occurrence of domestic violence, enacted the said law as evident from the Statement of Objects and Reasons, …
The Statement of Objects and Reasons indicates that various issues arising out of and relating to domestic violence are sought to be dealt with by enacting the said law and by providing remedies which are normally available under the civil law. Therefore, even if Section 28(1) of the Act provides that the proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of Code of Criminal Procedure, 1973, in view of different remedies which one can obtained under Section 12 of the Act, some of which are of civil in nature, the Act itself has provided under sub-section (2) of Section 28 that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12. Therefore, the Legislature has introduced an element of flexibility in the procedure to be adopted while dealing with application under section 12 of the Act. This is, perhaps, because of the intention of the Legislature in seeking to provide civil remedies also under the said Act. Code of Criminal Procedure had been enacted primarily to provide a fair procedure to deal with the offences punishable under various penal Acts and is geared to find out the guilt or innocence of the person, who has been charged of any offence. Many of the reliefs contemplated under the Act are of civil nature which cannot normally granted by the Criminal Court, but only by a Civil Court. That is the reason why the Legislature incorporated sub-section (2) in Section 28 permitting the Court to lay down its own procedure for disposal of an application under section 12 of the Act.
12. Thus, it is clear that even though section 28(1) specifically provides that all proceedings under section 12 shall be governed by the provisions of Cr.P.C., 1973, it is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate a proceeding initiated under section 12. Therefore, this Court will hold that the Courts while dealing with proceedings under section 12 of the Protection of Women from Domestic Violence Act, 2005 shall abide by the provisions of Cr.P.C., 1973 as far as possible. However, any departure from the provisions of Cr.P.C. will not have the effect of vitiating the proceeding in view of the fact that the statute itself specifically provides for the Court to lay down its own procedure for disposal of an application under section 12.”
Conjugal Rights: In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be “much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire”. The court should not give up the effort of reconciliation merely on the ground that there is No. chance for reconciliation or one party or the other says that there is No. possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.
INTERIM MAINTENANCE: The monetary relief as provided under Section 20 DV Act is different from maintenance, which can be in addition to an order of maintenance under Section 125 Cr.P.C. or any other law, and can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, and the question whether the aggrieved person, on the date of filing of the application under Section 12 of DV Act was in a domestic relationship with the respondent is irrelevant. 22. Sub-clause 2 of Section 23 of DV Act empowers the Magistrate to pass such interim order as he deems just and proper therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte relief, if the Magistrate is satisfied that the 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.
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 RepublicRepublic Res publica. Having a head of the state. Pope is the head of the Vatican City state. The people execute their power through an Elected (direct/indirect) President. Political parties sponsored their presidential candidates. Indian president is a constitutional puppet under the ruling Cabinet. In the case of the appointment of Indian judges, presidential power is a vanishing point. of IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more 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;
COMMENT: Section 2(f) defines “domestic relationship” which 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. Section 2(g) defines the term “domestic violence” which has been assigned and given the same meaning as in Section 3. Sub- section (iv) of Section 3 deals with “economic abuse”. As in the facts at hand, we are concerned with the “economic abuse”.[ Krishna Bhatacharjee Vs. Sarathi Choudhury and ANR. [Criminal AppealCriminal Appeal Shankar Kerba Jadhav and others vs. The State of Maharashtra (AIR 1971 SC 840): "An appeal is a creature of a statute and the powers and jurisdiction of the appellate Court must be circumscribed by the words of the statute. At the same time a Court of appeal is a "Court of error" and its normal function is to correct the decision appealed from and its jurisdiction should be co-extensive with that of the trial Court. It cannot and ought not to do something which the trial Court was not competent to do. There does not seem to be any fetter to its power to do what the trial Court could do." No. 1545 of 2015 @ SLP (CRL) No. 10223 of 2014]
(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;
ON OFFENCE UNDER DV ACT: The Act by itself does not make any act, omission or conduct constituting violence, punishable with any imprisonment, fine or other penalty. There can be no prosecution of a person under the provisions of this Act, for committing acts of domestic violence, as defined in Section 3 of the Act. No one can be punished under the Act merely because he subjects a woman to violence or harasses, harms or injures her or subjects her to any abuse whether physical, sexual, verbal, emotional or economic. No one can be punished under the provisions of the Act on account of his depriving a woman of her right to reside in the shared household.
Realistic Relief: In case of U. Sree -v- U. Sriniwas, AIR 2013 SC 415, it is held that while granting permanent alimony no arithmetical formula can be adopted as there cannot be mathematical exactitude. It shall depend upon status of the parties, their respective social needs, the financial capacity of the husband and other obligations. In case of Vinny Parmar -v- Paramveer Parmar, AIR 2011 SC 2748, the Apex Court held that while granting permanent alimony the Court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive of affect the living condition of the other party.
Date of Interim Money Relief: The proviso empowered the Magistrate for granting interim maintenance and expenses of proceeding during its pendency. The allowances either can be granted from the date of application or from the date of order. The Division Bench of Hon’ble Apex Court observed in Jaimini Ben Hirenbhai Vyas and another ..vs.. Hirenbhai Rameshchandra Vyas and another, 2015 All MR. (Cri) 376, Supreme Court, that the Court should record reasons while granting maintenance either from date of order or from date of application.
In Nagendrappa Natikar -Versus- Neelamma,2013 AIR(SC) 1541 the question that is raised for consideration in this case is whether a compromise entered into by husband and wife under Order XXIII Rule 3 of the Code of Civil Procedure, agreeing for a consolidated amount towards permanent alimony, thereby giving up any future claim for maintenance, accepted by the Court in a proceeding under Section 125 of the Code of Criminal Procedure. Would preclude the wife from claiming maintenance in a suit filed under Section 18 of the Hindu Adoption and Maintenance Act , 1956. It is held that Section 25 of the ContractContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. Act provides that any agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. which is opposed to public policy is not enforceable in a Court of Law and such an agreement is void, since the object is unlawful. Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.
Monetary relief vs Maintenance: The Monetary relief as stipulated u/s 20 is different from maintenance, which can be in addition to an order of maintenance u/s 125 of the Code of Criminal Procedure or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the application u/s 12 is in a domestic relationship with the Respondent [JUVERIA ABDUL MAJID PATNI Vs. ATIF IQBAL MANSOORI (2014) 10 SCC 736]
(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 household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;
(t) “shelter home” means any shelter home as may be notified by the State Government to be as helter home for the purposes of this Act.
COMMENT- A study of the statement of objects and reasons would show that though the domestic violence against women was addressed to some extent by the penal law under Section 498A, the same was not addressed by the civil law it was felt. Hence, the Protection of Women from Domestic Violence Act was brought into force w.e.f. 26.10.2006. The reliefs sought to be provided under this enactment, as we will presently see are therefore predominantly civil in nature in tune with the object of the Act. In the line, Section 18 provides Protection order against domestic violence; Section 19 intended to grant Residence order; Section 20 confers Monetary reliefs; Section 21 grants Custody order relating to the custody of the children and Section 22 confer compensation and damages to the victim of domestic violence. So these remedies are purely civil in nature and it is important to note none of the several forms of the domestic violence committed by the respondents under these sections is referred as an offence and respondents as offenders. It is only when an order is passed under any of the aforesaid sections and the breach of protection order is caused by them, such breach will be termed as an offence under Section 31 of the D.V. Act and the same is categorized as cognizable and non-bailable under Section 32 of the D.V. Act
In Gundu Chandrasekhar vs. The State of Andhra Pradesh, a learned judge of Andhra High Court observed thus:
None of the reliefs claimed in D.V.C. No.8 of 2011 by the 2nd respondent can be called crimes. Though, the Act empowers a Magistrate to entertain the complaint of an aggrieved person under Section 12 of the Act and makes it incumbent on the Magistrate to make enquiry of the same under the Code of Criminal Procedure, 1973, reliefs under Sections 18 to 22 of the Act are in the nature of civil reliefs only. It is only violation of order of the Magistrate which becomes an offence under Section 31 of the Act and which attracts penalty for breach of protection order by any of the respondents. Similarly, Section 33 of the Act provides for penalty for discharging duty by Protection Officer. Except under Sections 31 and 33 of the Act which occur in Chapter V, all the reliefs claimed under Chapter IV of the Act are not offences and enquiry of rights of the aggrieved person under Sections 18 to 22 of the Act cannot be termed as trial of a criminal case. (Emphasis supplied)
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, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.
In the case of Aradhana Walkade Vs. Chandrashekar Vaidya , 2014 ALLMR(Cri) 1658 : 2014 (2) Bom C R (Cri) 588 the Hon’ble Bombay High Court ( Panji Bench), considering the question of law as to whether subsistence of marriage is sine qua non for maintainability of a complaint under section 12 of Act, has observed that definition of “Economic abuse” means that if a woman is deprived of any economic or financial resources to which she is entitled reliefs under the law, or custom whether payable under the order of the Court or otherwise, to her as an aggrieved person out of necessity can be granted. Therefore, if there is an order of the Court to pay maintenance to the “aggrieved person” then if such maintenance is stopped or aggrieved person is deprived of such maintenance, it can be considered as an economic abuse.
In Saraswathy v. Babu[(2014) 3 SCC 712] a two-Judge Bench, after referring to the decision in V.D. Bhanot (Supreme Court), reiterated the principle. It has been held therein:-
“We are of the view that the act of the respondent husband squarely comes within the ambit of Section 3 of the DVA, 2005, which defines “domestic violence” in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the DVA, 2005 cannot be taken into consideration while passing an order. This is a case where the respondent husband has not complied with the order and direction passed by the trial court and the appellate court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the appellant wife.
The appellant wife having being harassed since 2000 is entitled for protection order and residence order under Sections 18 and 19 of the DVA, 2005 along with the maintenance as allowed by the trial court under Section 20(1)(d) of the DVA, 2005. Apart from these reliefs, she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent husband. Therefore, in addition to the reliefs granted by the courts below, we are of the view that the appellant wife should be compensated by the respondent husband. Hence, the respondent is hereby directed to pay compensation and damages to the extent of Rs 5,00,000 in favour of the appellant wife.”
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.
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 :
- Application means Original and Interim Applications- Only one word has been used u/s 12.
- Mandatory provision as 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
- “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” means to observe the rule prescribed u/r 6
- Application filed before Magistrate citing domestic violence – Magistrate ordered for DIR- Contradiction apparent between Complaint and DIR Magistrate should take evidence before final disposal of the Application u/s 12 of DV Act. An interim protection order may be granted on the basis of an Affidavit u/s 23 of DV Act in case of Ex-party order.
In Inderjit Singh Grewals case before Supreme Court[(2011) 12 SCC 588 : (2012) 2 SCC (Civ) 742 : (2012) 2 SCC (Cri) 614]] , the complainant and her husband took divorce by mutual consent before the District Judge, Ludhiana under Section 13-B of Hindu Marriage ActHMA Hindu Marriage Act 1955. Conditions for a Hindu marriage (Sec-5). Void marriages (Sec-11) Restitution of conjugal rights (Sec-9). Judicial separation (Sec-10). Divorce ( Sec-13). Divorce by mutual consent (13-B). Maintenance pendente lite (Sec-24). Appeals (Sec-28). Custody of children (Sec-27). Disposal of property (Sec-27) Trial.Evidence. Family Court. and later it appears, she filed a complaint before the Magistrate under D.V Act on the allegation that herself and her husband obtained decree of divorce by playing fraud upon the Court and now her husband causes domestic violence to her. She independently filed a civil suit in the Court of Judge, Senior Division, Ludhiana seeking declaration that the decree of divorce was null and void as it was obtained by fraud. In this scenario, Honble Apex Court held that when she was a party to the fraud, she cannot take advantage of it and in any event, the Magistrate Court in criminal proceedings cannot declare the decree of Civil Court as null and void and thus held that the continuation of proceedings amounts to travesty of justice and quashed.
In Markapuram Siva Raos case (SC), the facts were that earlier case under Section 498-A and 506 IPC and Sections 3 and 4 of Dowry Prohibition Act were ended in acquittal against other accused except the husband and subsequently with identical allegations, the wife filed a petition under D.V. Act against all of them. It was held that such petition would amount to abuse of processAbuse of process It is found where the judicial process is used as a means of vexation and oppression in the process of litigation. of Court and quashed the proceedings against the petitioners.
Evidence in Domestic Violence case:
Supreme Court before more than half a century in Sarju Pershad v. Jwaleshwari, (1950) SCR 781, stated :
“The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is – and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.
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: Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V Rules, 2006, makes it clear that the parties can appear before the Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West BengalWest Bengal Bengal derived its name from Vedik king Vanga (Son of Vali). Banga was part of the Magadha Kingdom of Jarasandha and later Nanda dynasty. After the Garuda Dynasty ( history lost) the region was named Gouda Bhumi. (2009 SCC Online Cal 1903)/2009(4) C H N 94/2010 (2) Crimes 858 (Cal).
Compliance with the forms under the DV Act is merely directory and not mandatory. On this, reliance is placed on the case of Siladitya Basak .
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.
COMMENT: Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari & Anr: (2016) 11 SCC 774, the Hon’ble Supreme Court had observed that the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498A of the Indian Penal Code and held that proceedings of the domestic violence are predominantly civil in nature.
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.
COMMENT- Sec. 18 empowers the Magistrate to pass a protection order prohibiting respondents from committing any act of domestic violence, aiding or abetting in the commission of acts of domestic violence, entering a place of employment of the aggrieved person, etc. Under Sec.19, the Magistrate, on being satisfied that domestic violence has taken place, may pass a residence order restraining the respondents from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, irrespective of legal or equitable interest of women in the shared household, etc. Sec. 20 deals with monetary reliefs which empowers the Magistrate to direct the respondents to pay to the aggrieved women to meet the expenses incurred and losses suffered by aggrieved person and any child of the aggrieved person as a result of the domestic violence.
In Shyamlal Devda and Others Vs. Parimala [Criminal Appeal No. 141 of 2020 arising out of SIP (Crl.) No. 4979 of 2019, Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman. Section 20 of the Act empowers the court to order for monetary relief to the “aggrieved party”. When acts of domestic violence is alleged, before issuing notice, the court has to be prima facie satisfied that there have been instances of domestic violence.
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: 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 CPCCPC Code of Civil Procedure 1908 > Index to Civil Procedure > Civil Court Reference > Commercial Court Reference , more particularly Sections 51, 55, 58, 60 r.w. Order XXI. [ RAJNESH Versus NEHA & Anr- SC CRIMINAL APPEAL NO. 730 OF 2020 – November 4, 2020]
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.
An order of maintenance including interim maintenance under DV Act can not be enforced through section 31 of DV Act and it can be enforced in the same manner as laid down under section 125 of the Cr. P. C. as held in Manoj Anand vs St of UP Criminal Revision No. 635/2011.
Unable to maintain-In Chaturbhuj vs Sitabai, AIR 2008, Supreme Court 530. A well-educated wife seating idle though has the capacity to earn a livelihood is not entitled to maintenance from the husband.
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.
In Gaurav Nagpal Vs Sumedha Nagpal AIR 2009 SC 557. It is observed that merely because there is no defect in his personal care and his attachment for his children–which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
Age factor: In ROXANN SHARMA. Vs. ARUN SHARMA 2015 (2) SCALE 488: MANU/SC/0165/2015 the Hon’ble Apex Court has held that custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The onus is on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother.
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 an aggrieved person.
- An interim order can be issued to both parties.
- Interim relief under DV Act cannot be granted without conducting an inquiry as per CrPC summons case as decided in Krishna Murthy Nookula vs Y Savitha – Karnataka HC
- The procedure as per summons case as per sec 28(1) of DV Act – Section 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).
The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, 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 [
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.
NOTE
Section 25(2) of the Act itself enjoins that on receipt of the application from the aggrieved person or the respondent, if the Magistrate 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 the reasons to be recorded in writing, pass such order, as he may deem appropriate. Taking note of this provision, a Single Judge of the Uttarakhand High Court in the case of Nirmal Jeet Kaur v. State of Uttarkhand and others, 2013(1) Crimes 352 (Uttar.) has held as follows:
“7. The question, before Court, is that whether in the light of expression “its own procedure for proposal of an application”, can the Magistrate recall its order passed under Section 23 or not. Certainly said expression does not give the Magistrate power to pass arbitrary orders or to pass such an order which is against the known basic principles of judicial procedure. In the opinion of this Court what aforesaid expression authorities the Magistrate is that he can pass such an order which are in consonance of the basic principles of judicial procedure. It is pertinent to mention here that proceeding based on an application under Section 12, the Protection of Women from Domestic Violence Act, 2005 are not the proceeding of trial of an offence. Rather such proceedings are quasi civil in nature, like the one under Section 125 of the Cr.P.C. If we look in the Code of Civil Procedure, 1908, we find that there is provision under Rule 7 of Order IX of the Code which empowers of the Court to set aside the order directing to proceed ex parte. Under Rule 13 of Order IX of the Code trial courts have powers to set aside the ex parte decree on sufficient cause being shown by the defendant. Similarly under the Code of Criminal Procedure 1973, in respect of proceedings under Section 125 of Cr.P.C., there is proviso to sub-Section (2) of Section 126 which empowers the Magistrate to recall an ex parte order. As such setting aside of ex parte order by the Magistrate under the Protection of Women from Domestic Violence Act, 2005 cannot be said to be arbitrary or against the basic principles of judicial procedure, particularly when sub-Section (2) of Section 28 of the Act, provides that nothing in sub-Section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or sub-Section (2) of Section 23.”
Thus, following the aforesaid ratio decided by the Uttarakhand High Court and harmonious construction of Sections 25 and 28 of the Act, this Court is of the opinion that an application for setting aside the order passed in ex parte against the respondents in favour of the aggrieved persons is maintainable but the same is not a petition akin to the provision under Rule 9, Order 13 of the Code. Rather, it is a procedure which has to be devised by the learned Magistrate himself. A natural corollary to the said interpretation is that any application under Sections 12, 18, 19, 20, 21, 22 and 23 of the Act, which has been dismissed for default against the Respondents can also be restored by the learned Magistrate on filing of an application under Section 25 read with 28 of the Act. So this question is answered accordingly.
As far as the factual aspect of the case is concerned, though no limitation has been prescribed under Section 25 of the Act, the respondents, in order to set aside the ex parte order, must show the change in circumstance to recall the order passed ex parte. In its scope of ambit, the expression “change in circumstance” may also include any fact brought before the Court that on the date the case was taken up for hearing by the learned Magistrate ex parte, the respondent were prevented by sufficient cause, which is beyond their control, the Magistrate may in his discretion recall the order.
Comment:-
- Only protection order is continuous in nature
- An application under this section is maintainable for restoration of an application u/ 12 dismissed for default.
- The magistrate has the power to modify his /her Order
- PROCEDURE– Application given under change in circumstances under Section 25(2) of the Protection of Women from Domestic Violence Act, is a kind of fresh proceeding which requires opportunity to parties for adducing evidences. It cannot be out rightly rejected without affording the opportunity of adducing evidence and hearing. This provision to be read with s 28(3)
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.
USE OF DV IN DIVORCE PROCEEDING: In Narayan Babi Salgaonkar v. Jayshree @ Manasi Narayan Salgaonkar 2017 SCC Online Bom 723, the Bombay High Court considered the question whether the application under Section 26 of the D.V. Act is maintainable in the divorce proceedings. The Bombay High Court considered the Division Bench judgment of this Court in Nidhi Kaushik v. Union of India (supra) and held the application under Section 26 of the D.V. Act to be maintainable in the divorce proceedings. The husband raised the similar objection as raised by the respondent before this Court that the Family Court has no jurisdiction to entertain the application under Section 26 of the D.V. Act which can be considered only by the Magistrate. The Bombay High Court rejected this argumentArgument An argument serves as the process of presenting reasons to support a belief, and also refers to the reasons themselves. It can also denote a disagreement where opposing parties openly voice their opinions and dispute each other's claims. In U.S. v. Palma, the Eighth Circuit rejected the use of the "golden rule" argument, emphasizing that it could lead jurors to decide based on personal bias rather than evidence, thus departing from neutrality.. The Bombay High Court further held that the appeal under Section 29 of the D.V. Act shall not lie to the Court of Sessions. Relevant portion of the judgment is reproduced hereunder:-
2. ………the following questions arise in the present petition:–
(i) Whether an application under Section 26 of the Protection of Women from Domestic Violence Act, 2005 (for short, D.V. Act) is maintainable in a suit for divorce, which is purely a civil proceeding?
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8. Mr. Vaz, the Counsel for the petitioner has made the following submissions in support of this petition:–
a) That an application under Section 26 of the D.V. Act is not maintainable in a civil proceeding instituted by the petitioner, seeking relief of divorce, which is again purely civil in nature. The Civil Court, therefore, exceeded its jurisdiction in entertaining the application under Section 26 of the D.V. Act;
b) In support of the aforesaid, Mr. Vaz refers to the scheme of the D.V. Act, and lays emphasis upon Section 27 to submit that it is only the Court of Judicial Magistrate, First Class or the Metropolitan Magistrate, as the case may be, who shall be competent to grant protection orders or other orders under the D.V. Act. Mr. Vaz also makes reference to Section 28 to submit that the procedure to be adopted for considering grant of reliefs under Sections 18 to 23 shall be governed by the Code of Criminal Procedure, 1973. On this basis, Mr. Vaz submits that the application under Section 26 was not maintainable and in case Jayashree was desirous of seeking any relief under the D.V. Act, it was for her to institute proceedings before the concerned Judicial Magistrate, First Class under Section 12 of the D.V. Act.
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12. The first question to be determined is whether an application under Section 26 of the Protection of Women from Domestic Violence Act, 2005 (for short, D.V. Act) is maintainable in a suit for divorce, which is purely a civil proceeding?
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15. Provisions of Section 26, therefore, make it clear that the aggrieved person is entitled to seek reliefs as available under Sections 18 to 22 of the D.V. Act in any legal proceedings before a Civil Court, Family Court or a Criminal Court in addition to and along with other reliefs that may have been applied for in such a suit or legal proceedings. It is not necessary that an aggrieved person, in order to obtain reliefs under Sections 18 to 22, has to necessarily take out proceedings in Section 12 of the D.V. Act alone. If there are legal proceedings whether initiated before or after the commencement of the D.V. Act before a Civil Court, Family Court or Criminal Court, it is always open to the aggrieved person to apply for reliefs under Sections 18 to 22 of the D.V. Act, in such suit or legal proceedings…………
16. The answer will be same if the matter is examined from yet another perspective. Although normally the procedure for obtaining reliefs under the D.V. Act is to institute the proceedings before a Magistrate, as defined under Section 2(i) of the D.V. Act and further, in terms of Section 28 of the D.V. Act, the proceedings under Sections 12, 18 to 23 and 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973, yet, the proceedings under the D.V. Act are essentially civil in nature. Therefore, there is no question of any anomaly, if it is held that an application under Section 26 of the D.V. Act is maintainable in a suit for divorce, which is purely a civil proceeding.
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20. The Division Bench of Delhi High Court in Ms. Nidhi Kaushik (supra), after detailed analysis of the provisions of the D.V. Act, has held that the proceedings under the D.V. Act are essentially of civil nature.
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22. Therefore, upon consideration of the provisions under Section 26 of the D.V. Act and the principles in the aforesaid decisions, it will have to be held that an application under Section 26 of the D.V. Act is very much maintainable in a suit for divorce, which is purely a civil proceeding. The first question stands answered accordingly.
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35. Accordingly, it will have to be held that the Civil Court or a Family Court entertaining an application under Section 26 of the D.V. Act will have to consider whether the case of domestic violence, prima facie or otherwise, has been made out before any reliefs in terms of Sections 18 to 22 of the D.V. Act is actually granted to the aggrieved person. If it is proposed to grant interim relief or ad interim relief, then, a prima facie case may suffice.
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39. Section 26 of the D.V. Act merely provides that the Civil Court or the Family Court is also empowered to grant reliefs under Sections 18, 19, 20, 21 and 22 of the D.V. Act in any legal proceedings before it, affecting the aggrieved person and the respondent whether such proceedings were initiated before or after the commencement of the D.V. Act. This means that the Civil Court or the Family Court when it considers whether or not to grant reliefs under Sections 18, 19, 20, 21 and 22 of the D.V. Act does not lose its essential character as Civil Court or a Family Court as the case may be. By granting relief or for that matter, by refusing relief under Sections 18, 19, 20, 21 and 22 of the D.V. Act, the Civil Court or the Family Court is not converted into a Magistrate as defined under Section 2(i) of the D.V. Act. At least for the purpose of Section 29 of the D.V. Act, it cannot, therefore, be said that the orders made by the Civil Court or the Family Court either granting or refusing reliefs under Sections 18, 19, 20, 21 and 22 of the D.V. Act can be regarded as orders made by the Magistrate as defined under Section 2(i) of the D.V. Act. Therefore, against such orders, an appeal will not lie to the Court of Sessions under Section 29 of the D.V. Act. The remedy against such orders will be the remedy, which is otherwise available against orders made by the Civil Court or the Family Court.
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43. Upon cumulative consideration of the aforesaid, it will have to be held that as against the orders made by the Civil Court or the Family Court in an application under Section 26 of the D.V. Act, granting or refusing reliefs under Sections 18 to 22 of the D.V. Act, an appeal will not lie under Section 29 of the D.V. Act to the Court of Sessions.
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50. Accordingly, this petition is disposed of with the following order:–
(a) An application under Section 26 of the D.V. Act is held maintainable in a suit for divorce, which is purely a civil proceeding. Accordingly, the application at Exhibit D-9 made by Jayashree was maintainable before the Civil Court in the present case.
(Emphasis Supplied)
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.
COMPLAINANT LIVES WITH PARENT: A plain reading of the above provision makes it clear that the petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. In the present case, the respondent is residing with her parents within the territorial limits of Metropolitan Magistrate Court, Bengaluru. In view of Section 27(1) (a) of the Act, the Metropolitan Magistrate court, Bengaluru has the jurisdiction to entertain the complaint and take cognizance of the offence. There is no merit in the contention raising objection as to the jurisdiction of the Metropolitan Magistrate Court at Bengaluru [Shyamlal Devda and Others Vs. Parimala-22/1/2020]
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 :
The special features with regard to an application under Section 12 of the Act were noticed by a Single Judge of the High Court in Dr. P. Padmanathan & Ors.(2021 SCC Online Mad 8731)2 as under:
“19. In the first instance, it is, therefore, necessary to examine the areas where the D.V. Act or the D.V. Rules have specifically set out the procedure thereby excluding the operation of Cr.P.C. as contemplated under Section 28(1) of the Act. This takes us to the D.V. Rules. At the outset, it may be noticed that a “complaint” as contemplated under the D.V. Act and the D.V. Rules is not the same as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the D.V. Rules is defined as an allegation made orally or in writing by any person to a Protection Officer.
On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 of the Act is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a complaint but an application to a Magistrate as set out in Rule 6(1) of the D.V. Rules. A complaint under the D.V. Rules is made only to a Protection Officer as contemplated under Rule 4(1) of the D.V. Rules.
20. Rule 6(1) sets out that an application under Section 12 of the Act shall be as per Form II appended to the Act. Thus, an application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure set out in the subsequent Chapter XV of the Code will apply only in cases of complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and not to an application under Section 12 of the Act.” [Kamatchi Vs. Lakshmi Narayanan-SC-13/04/2022]
The Civil Court, Family Court or Criminal Court dealing with the application under Sections 18 to 22 of the D.V. Act can formulate its own procedure under Section 28(2) of the D.V. Act. The word ‘Court’ in Section 28(2) of the D.V. Act includes Civil Court, Family Court as well as the Criminal Court.
The Court shall formulate the procedure after completion of pleadings in an application under Section 26 of the D.V. Act. After completion of pleadings, the concerned Court shall consider whether evidence is necessary to adjudicate the application under the D.V. Act and if so, the Court shall frame the issues and record the evidence. However, if no evidence is considered necessary, the Court shall list the application for hearing.
- Procedure for appeal has not been provided
- “Laying down its own procedure” to be applied through a judicial proceeding and it should not violate an express provision of law.
Since the remedies under D.V Act are civil remedies, the Magistrate in view of his powers under Section 28(2) of D.V Act shall issue notice to the parties for their first appearance and shall not insist for the attendance of the parties for every hearing and in case of non-appearance of the parties despite receiving notices, can conduct enquiry and pass ex parte order with the material available. It is only in exceptional cases where the Magistrate feels that the circumstance require that he can insist the presence of the parties even by adopting coercive measures. In view of the remedies which are in civil nature and enquiry is not a trial of criminal case, the quash petitions under Sec.482 Cr.P.C on the plea that the petitioners are unnecessarily arrayed as parties are not maintainable. It is only in exceptional cases like without there existing any domestic relationship as laid under Section 2(f) of the D.V. Act between the parties, the petitioner filed D.V. case against them or a competent Court has already acquitted them of the allegations which are identical to the ones leveled in the Domestic Violence Case, the respondents can seek for quashment of the proceedings since continuation of the proceedings in such instances certainly amounts to abuse of process of Court.
AMENDMENT OF PETITION OR RESPONSE: In Kunapareddy v. Kunapareddy Swarna Kumari (2016) 11 SCC 774, the Supreme Court considered the nature of proceedings under the D.V. Act and held that Section 28(2) of the D.V. Act empowers the Court to lay down its own procedure and the Magistrate dealing with the D.V. Act is empowered to allow the amendment of the application. The relevant portion of the said judgment is reproduced hereunder:-
“Whereas proceedings under certain sections of the D.V. Act as specified in sub-Section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like sub – Section (2) as well which empowers the Court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the D.V. Act. This provision has been incorporated by the Legislature keeping a definite purpose in mind.”
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: In view of the provision of Statutory Appeal under Section 29 of the Act, Petition under Section 482 Cr.PC would not be maintainable. Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders”
Under Sec. 29, appeal lies to the ‘Court of Sessions’ and not to the Sessions Judge. Thus, it is obvious that the proceedings before the Sessions Court, in an appeal under Section 29 from an order passed under Chapter IV of the D.V Act, does not lose its character as a civil proceeding. It is a settled legal position that an appeal is a continuation of the original proceeding. It follows that a Sessions Judge exercising powers under Section 29 of the D.V Act would have the same powers as a Magistrate while dealing with an application under Section 12 of the Act. When the original proceeding partakes the character of a civil proceeding, it is difficult to appreciate how an appeal under Section 29, arising out of such an original proceeding, could metamorphosize into a criminal proceeding before the Court of Sessions.
Latha P.C. and Anr v. State of Kerela Rep. by the Public Prosecutor & Ors: 2020 SCC Online Ker 4238, wherein the High Court relying in the case of Vijayalekshmi (supra) has held that a petition under Section 482 Cr.P.C seeking quashing of domestic violence proceedings was not maintainable and also in the case of Dr. P. Pathmanathan & Ors v. Tmt. V. Monica & Anr, where the Madras High Court has expressed similar opinion, however has further held that a petition under Article 227 of the Constitution may still be maintainable, if it is shown that the proceedings before the Magistrate suffers from a patent lack of jurisdiction.
Supreme Court in Ram Kishan Fauji v. State of Haryana, (2017) 5 SCC 533. The Hon’ble Supreme Court reiterated the test laid down in S.A.L Narayan Row (cited supra), and opined as under:
“31. The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as criminal proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of (i) sentence, and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peacePeace εἰρήνη and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed.” The Hon’ble Supreme Court eventually concluded that it is conceptually fallacious to determine the nature of the proceeding with reference to the nature of the Court, since the litmus test is the nature of the proceeding, nothing more nothing less. Applying the aforesaid test, it is beyond a pale of controversy that all of the reliefs claimed under Chapter IV of the Act are civil in nature for the enforcement of civil rights, as was held by the Supreme Court in Kunapareddy (cited supra) and a proceeding before the Magistrate would, therefore, partake the character of a civil and not a criminal proceeding.
CHAPTER V MISCELLANEOUS
Comment:- An appeal could be preferred either against the final order or interim order within 30 days of the order before Session Court.
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.
LIMITATION FOR TAKING COGNIZANCE-Let us now consider the applicability of these principles to cases under the Act. The provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act. [Kamatchi Vs. Lakshmi Narayanan-SC-13/04/2022]
In Mohit Yadam and another vs. State of Andhra Pradesh , a learned judge of Andhra High Court observed thus:
Para 22: If a statute does not provide an offender liable to any penalty (conviction or sentence) in favour of the state, it can be said that legislation will be classified as remedial statute. Remedial statutes are known as welfare, beneficent or social justice oriented legislations. A remedial statute receives a liberal construction. In case of remedial statutes, doubt is resolved in favour of the class of persons for whose benefit the statute is enacted. Whenever a legislation prescribes a duty or penalty for breach of it, it must be understood that the duty is prescribed in the interest of the community or some part of it and the penalties prescribed as a sanction for its purpose. None of the provisions of the Domestic Violence Act, 2005 has direct penal consequences. (Emphasis supplied) Para 23: Under Section 31 of the Domestic Violence Act, 2005, breach of protection order, or of an interim protection order, by the Respondent shall be an offence under the Act. Therefore, all other orders passed under Sections 17,18,19,20 and 22 of the Domestic Violence Act, 2005 have no penal consequences, even if the Respondent committed breach of the order, except as provided under Section 31 of the Act. (Emphasis supplied) Therefore, it is clear that the proceedings conducted till passing of the orders under Section 18 to 22 are only civil in nature to provide a civil remedy. Thus it is a civil comfit packed with a criminal wrapper.
Limitation: Under Sec 31 of the Domestic Violence Act, the penalty for breach of Protection order is punishable upto 1 year imprisonment or fine upto rupees 20,000 or both. Hence, after much thought and careful consideration and in the light of the above discussion, the Court holds the view that the Domestic Violence Act could not be considered as solely criminal law as it is more concerned with reliefs granted to the victim/aggrieved. The question of limitation would arise only in case of violation of protection order as provided Sec 31 of the Domestic Violence Act and thereby Sec 468 of Cr.PC would get attracted.
In Inderjit Singh Grewal (2011) 12 SCC 588 that Section 468 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006.
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.
In Vijaya Baskar v. Suganya Devi, MANU/TN/3477/2010 the Madras High Court examined the scope of D.V. Act and held that the term civil law used in the Statement of Object and Reasons of the Act is not an empty formality and would exemplify and demonstrate that the proceedings in the first instance should be civil in nature. The legislature was conscious of the fact that the enforcement of a criminal law on the husband and relatives would have deleterious effect in the matrimonial relationship. The object of the D.V.Act is that the victim lady should be enabled by law to live in a family atmosphere at her matrimonial house. It is not the intention of the said enactment to enable the lady to get snapped once and for all her relationship with her husband or the husband’s family and for that, civil law and civil remedies are most efficacious and appropriate. The High Court referred to Rule 6(5) of the D.V. Rules which provides that the application under Section 12 shall be dealt with and enforced in the same manner as laid down in Section 125 Cr.P.C. The Court further observed that the violation of protection orders would constitute an offence under Section 31 and Section 32 of the D.V. Act which provides that such violation would amount to a cognizable and non- bailable offence. Relevant portion of the said judgment is reproduced hereunder:
“11. Paramount, it is, to consider the gamut and the scope of the Act, namely The Protection of Women from Domestic Violence Act, 2005; certain excerpts from the objects and reasons are of immense importance which would run thus:
“2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to 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.”
12. The term ‘civil law’ twice used therein is not an empty formality and that would exemplify and demonstrate, display and convey that the proceedings at the first instance should be civil in nature. The legislators were conscious of the fact that all of a sudden if criminal law is enforced on the husband and his relatives, certainly that might boomerang and have deliterious effect in the matrimonial relationship between the husband and wife. The object of the Act is that the victim lady should be enabled by law to live in the matrimonial family atmosphere in her husband/in-laws’ house. It is not the intention of the said enactment to enable the lady to get snapped once and for all her relationship with her husband or the husband’s family and for that, civil law and civil remedies are most efficacious and appropriate and keeping that in mind alone in the Act, the initiation of action is given the trappings of civil proceedings which the authorities including the Magistrate responsible to enforce the said Act should not lose sight of.
13. The status of the respondents should not be treated as that of accused and that would spoil the very tenor and tone with which the Act has been drafted. Keeping that in mind alone, Section 13 of the Act would contemplate only service of notice on the respondents and Rule 6(5) of the Protection of Women from Domestic Violence Rules, would contemplate that the applications under Section 12 shall be dealt with in conformity with Section 125 of the Code of Criminal Procedure, 1973.
14. It is obvious that the proceedings under Section 125 Cr.P.C are not in stricto senso criminal proceedings.
15. After the passing of the protection order, if there is any violation, then only, such violation would constitute an offence under Section 31 of the said Act and Section 32 of the Act would indicate that such violation would amount to a cognizable and non-bailable offence.”
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.
COMMENT: DV Act not in derogation of any other law Section 36 of the DV Act provides that the provisions of the Act are in addition to and not in derogation of any other law. This means that in addition to DV Act, various other provisions under the general laws as well as specific statutes can be invoked by the aggrieved person. Section 5(e) of the DV Act expressly provides that the Magistrate upon receipt the complaint of domestic violence, shall inform the aggrieved person of her right to file a complaint under Section 498A of the Indian Penal Code wherever relevant. Section 5(e) and 36 is reproduced hereunder:-
“Section 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–
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant Section 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.
In exercise of the powers conferred by Section – 37 (1) of the “Protection of Women from Domestic Violence Act, 2005 (of 2005)” the Central Government hereby makes the following rules for carrying out the provisions of the Act.
COMMENT: Since the domestic violence per se is not an offence, the opposite party under the DV Act has been clearly mentioned as the ‘respondent’ in Sections 12 to 23 of the DV Act. The respondent has been specifically defined in Section 2(q) of the DV Act. 5.10. Rule 6 of the Protection of Women from Domestic Violence Rules, 2006 provides that the application under Section 12 of the DV Act and the affidavit shall be in Forms I and II respectively of the Rules. Rule 5(1)(2) provides that upon receipt of complaint of domestic violence, the protection officers shall prepare a domestic incident report in Form I and submit the same to the Magistrate. Clause 8 of Form I provides that upon receipt of information about an offence under IPC or any other law, the police officer shall inform the aggrieved person to initiate criminal proceedings by lodging an FIR under Cr.P.C. and if the aggrieved person does not want to initiate criminal proceedings, then he shall make a daily diary entry with remarks that the aggrieved person due to intimating nature of relationship wants to pursue civil remedies only. Clause 8 of Form I is reproduced hereunder:-
“8. Instruction for the police officer assisting in registration of a Domestic Incident Report: Wherever the information provided in this Form discloses an offence under the Indian Penal Code or any other law, the police officer shall–
(a) inform the aggrieved person that she can also initiate criminal proceedings by lodging a First Information Report under the Code of Criminal Procedure, 1973 (2 of 1974).
(b) if the aggrieved person does not want to initiate criminal proceedings, then make daily diary entry as per the information contained in the domestic incident report with a remark that the aggrieved person due to the intimate nature of the relationship with the accused wants to pursue the civil remedies for protection against domestic violence and has requested that on the basis of the information received by her, the matter has been kept pending for appropriate enquiry before registration of an FIR.
Clause 2 of Form II recites the prayers which can be claimed by the aggrieved person under the DV Act which is reproduced hereunder:-
“2. It is prayed that the Hon’ble Court may take cognizance of the complaint/Domestic Incident Report and pass all/any of the orders, as deemed necessary in the circumstances of the case
(a) Pass protection orders under Section 18 and/or
(b) Pass residence orders under Section 19 and/or
(c) Direct the respondent to pay monetary relief under Section 20 and/or
(d) Pass orders under Section 21 of the Act and/or
(e) Direct the respondent to grant compensation or damages under Section 22 and/or
(f) Pass such interim orders as the court deems just and proper
(g) Pass any orders as deems fit in the circumstances of the case.”
Clause 4 of Form II seeks information with respect to the details of previous litigation, if any, under IPC, Cr.P.C., Hindu Marriage Act and other Acts.
The affidavit to be filed along with the application under Section 12 of the DV Act is to be as per Form III which clearly provides that the parties in the application under DV Act are named as complainant and respondent.
Clause 4(x) of the Form IV recognizes the right of the aggrieved person to file an application for relief under Sections 12 and 18 to 23 under the DV Act.
Rule 8(1)(ii) provides the duties and functions of the protection officers to inform the aggrieved person about her rights as given in Form IV.
COMMENT: Civil rights under the DV Act- DV Act created certain civil rights namely, right to protection against domestic violence, right to maintenance, right to reside in a shared household, right to compensation on account of domestic violence, right to custody of children and right to medical expenses. Section 12 of the DV Act empowers the accused person to approach the Court to seek any of the following reliefs:-
– Protection order under Section 18.
– Residence order under Section 19.
– Monetary relief under Section 20.
– Custody order under Section 21.
– Compensation under Section 22.
– Interim injunction under Section 23.
Concurrent jurisdiction of Civil Court, Family Court or Criminal Court to deal with application under Section 12 of the DV Act Section 26 empowers the aggrieved person to seek the reliefs under Section 18 to 22 in any legal proceedings before a Civil Court, Family Court or Criminal Court. Section 26(1) is reproduced hereunder:-
“Section 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.”
Procedure to be followed Section 28(2) of the DV Act provides that the Court can formulate its own procedure for disposal of an application under Section 12 of the DV Act and it is not bound to follow the Code of Criminal Procedure. Rule 6(5) specifies that the procedure under Section 125 Cr.P.C. should be followed with respect to the application under Section 12. Section 125 provides for trial in a summary manner.
Section 28 is reproduced hereunder:-
“Section 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.”
(Emphasis supplied)
Domestic violence per se is not an offence under DV Act Domestic violence defined in Section 3 of the DV Act per se is not an offence and the Act does not provide for any punishment for the same. However, breach of a protection order passed by the Court , amounts to an offence under Section 31 of the DV Act which is punishable with imprisonment which may extend to one year or fine up to Rs.20,000/- or both. The two main ingredients of an offence under Section 31 of the DV Act are that there should be a protection order under the Act and breach by the respondent.
The Court dealing with an application under Section 12 of D.V. Act cannot take cognizance of an offence under IPC.
The Court dealing with an application under Section 12 of D.V. Act cannot take cognizance of any offence under IPC. The reason appears to be that the proceedings under Section 12 of the D.V. Act are civil in nature triable by a Civil Court, Criminal Court as well as Family Court. However, in the event of breach of a protection order, a fresh criminal case has to be initiated against the accused (either by an FIR or by a criminal complaint before the Court) and in that criminal case, at the stage of framing the charge, the Court is empowered to frame a charge under IPC or any other law if the facts disclose the commissioner of such offence. The fresh complaint under Section 31 of the DV Act would be a criminal case as the respondent would be accused of an offence under Section 31 of the DV Act and as per Section 31(2), it should preferably be tried by the Magistrate who passed the order. This is clear from the reading of Section 31(2) and (3) of D.V. Act. Sections 31 and 32 are reproduced hereunder:-
“Section 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 Magistrates 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.
SECTION 498A– Since invoking criminal machinery under Section 498A IPC has serious ramifications, need was felt to have civil law on domestic violence inasmuch as there was no law enabling the Court to give protection order to give monetary relief in case women go to Court complaining violence. In order to provide such remedies, DV Act has been enacted. It is in this backdrop, we have to appreciate that married women (i.e. wives) are given rights to agitate their grievances against wide spectrum of respondents under proviso to Section 2(q) of the DV Act, with attempt to put an end to domestic violence and at the same time saving matrimonial home, which was not possible under the remedies provided in criminal law and there was no such provision under the existing Family Laws. When this was the lacuna in law sought to be plugged by passing the DV Act and the purpose was to remove the said mischief, leaving family relatives of a husband or a male partner out of purview of the „respondent‟ would negate the purpose for which the DV Act is passed[ In Varsha Kapoor v. Union of India, (170) 2010 DLT 166].
PETITIONER, HERSELF LEFT MATRIMONIAL HOME
Aakanksha herself had left the matrimonial home and was not thrown out of the matrimonial home, is concerned suffice it to say that expression “throwing out of the matrimonial home” does not mean only physical throwing out. It also includes makings such an environment within the matrimonial home which makes it difficult for the lady to live in the matrimonial home.
PENALTY FOR DELAY PAYMENT: In dealing with matrimonial matters, this Court has noticed that even though interim maintenance/maintenance has been awarded to the wife and/or the child, the payment is often not made regularly per month and the recipient wife or child are often at the mercy of the whim and fancy of the husband/father. More often than not, the ordered monthly maintenance is not paid every month but paid cumulatively on the next date of hearing for the intervening months. The court dates are often spaced more than 4 to 5 months apart due to the overcrowded schedule of the matrimonial courts. Thus a judicial order determining maintenance is rendered nugatory and ineffectual during the interregnum. Expenses are incurred for survival and sustenance regularly by the recipient and the daily needs of the wife/child cannot await the next date in Court. Maintenance to a wife and child is ordered when economic circumstances indicating want and need have been judicially determined. Maintenance amount is paid in the nature of subsistence and sustenance and a belated payment sporadically does not serve the aim and object of the payment of maintenance. Since expenses for sustenance are incurred regularly the staggered and delayed payment may end up defeating the objects behind ordering payment of maintenance. The grocery bill, rent payment, school fees, telephone, electricity and water dues are required to be paid on the due date and will not await the contingency of the receipt of the payment on a future date in Court. It has thus become necessary to ensure that maintenance payment to a wife/child is made at least on a regular monthly basis and defaults for no justifiable cause ought not to go scot-free without sanctions.[Gaurav Sondhi vs Diya Sondhi [DHC-3/5/2005]