This article is written by Indrasish Majumdar, Intern at LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).
This article has been published by Shoronya Banerjee.
Table of Contents
Introduction
The Protection Of Women From Domestic Violence Act, 2005 defines an “aggrieved person” as 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. The term 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 relief under the Act. In pursuance of the basic intent of this Act, however, the term “respondent” includes “female relatives” as well because the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of this Act. This was further reaffirmed by the judgment of the Supreme Court in 2016, wherein it stated that the “respondent” can be anyone regardless of his/her gender. Domestic violence has been defined under Section 3 of the Act. It includes any act or omission or commission or conduct on the part of the respondent that –
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
harasses, harms injures or endangers the aggrieved person to coerce her or any
other person related to her to satisfy any unlawful demand for dowry any other property or valuable security; or
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
otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Access to justice
On request from the aggrieved person or Protection Officer or service provider, the person in charge of the shelter home or of the medical facility must respectively provide shelter or medical aid to the aggrieved person. Any information regarding domestic violence, whether it has been committed or is being or is likely to be committed may be given to the concerned Protection Officer. For rendering such information, any person shall incur civil or criminal liability.
Duties of police officers, service providers, and Magistrate pertaining to providing information to the aggrieved person have been listed under Section 5. These include informing the aggrieved person –
- of her right to file an application to seek relief by way of protection order, an order of monetary relief, custody order, residence order, a compensation order or more than one such order under this Act;
- of the availability of services of service providers and Protection Officers;
- of her right to avail free legal services under the Legal Service Authorities Act, 1987
- of her right to file a complaint under Section 498A of Indian Penal Code.
Section 9 enumerates the duties and functions of Protection Officers. Some of these duties include –
- Assist the Magistrate in the discharge of his functions.
- Making a domestic incident report to the Magistrate and forward copies to the concerned police officer.
- To ensure that the aggrieved person is provided with legal aid under the Legal Services Authorities Act, 1987.
- To maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area.
- To make available a safe shelter home and forward a copy of his report of having lodged such a person in a shelter home.
- To get the aggrieved person medically examined and forward the medical report to the police station and the Magistrate having jurisdiction over the area where the incident of domestic violence has taken place.
- To ensure that the order for monetary relief under Section 20 is complied with in accordance with the Code of Criminal Procedure.
Application to seek any relief under the Act has to be made before the Magistrate for it to be entertained and not the family court. The Magistrate must consider any report of domestic violence received by him from the Protection Officer or any service provider before passing such an order.
The Magistrate shall fix the first date of hearing which shall not be beyond three days from the date of receipt of such application. Such application must be disposed of within sixty days from the date of the first hearing. The notice of fixing the date of the first hearing must be given to the Protection Officer, who shall get it served to the respondent or any other person within a maximum of two days or any such reasonable time as allowed by the Magistrate. A declaration of service of notice by the Protection Officer shall be proof that such notice has been served unless the contrary is proved.
The Magistrate may also hold proceedings in camera if necessary or if either party to the proceedings desires so. Under Section 18 and 19, Magistrate has been given the power to issue protection and residence orders respectively in favour of the victim which is aimed at ensuring the protection of the victim from the accused and preventing the accused and victim from sharing a household.
A Protection Order may be passed by the Magistrate after hearing the parties and after it has been established that there is a prima facie case for domestic violence, whether it has taken place or is likely to take place. Such protection order may prohibit the respondent from –
- committing any act of domestic violence;
- aiding or abetting in the commission of acts of domestic violence;
- 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;
- attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or by electronic or telephonic contact;
- alienating any assets, operating bank lockers or bank accounts used , 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 Magistrate’s leave;
- causing violence to the dependants, other relatives or any person who safeguards the aggrieved person against domestic violence;
- committing any other act as specified in the protection order.
The duration of such a protection order shall be till the aggrieved person applies for a discharge. An application can be made by the aggrieved person or the respondent to the Magistrate and on being satisfied with the change in circumstances may alter, revoke or modify any order under the Act. The reasons for the same must be recorded.
The residence orders may entail the following stipulations. It may –
- Restrain the respondent from dispossessing or in any manner disturbing the possession of the aggrieved person from the shared household, irrespective of whether the respondent has a legal or equitable interest in the shared household;
- Direct the respondent to remove himself from the shared household;
- Restrain the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
- Restrain the respondent from alienating or disposing of the shared household or
encumbering the same; - Restrain the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
- Direct the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same if the circumstances so require:
The claim for alternative accommodation can only be made against the husband and not against in-laws or other relatives. The wife’s entitlement to claim a right to reside in a “shared household” would only mean a house belonging to or taken on rent by the husband or a house which belongs to the joint family of which husband is a member. Further, to ensure an efficient upholding of the basic intent of this legislation the wife can legitimately stop the husband from entering the premises of the house under PWDVA.
To ensure the safety of the aggrieved person or her child, the Magistrate may pass any order or impose conditions that he deems necessary. The order may also be passed directing the police officer of the nearest police station to give protection to the aggrieved person or assist her in making an application for implementation of the order. The respondent may also be required to execute a bond, with or without sureties to prevent the commission of domestic violence. The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan any other property or valuable security to which she is entitled. Concerning the financial needs and resources of the parties, the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments.
Section 24 stipulates that copies of the orders passed by the Magistrate must be given free of cost to the parties and other functionaries like the police officer in charge or any service providers.
Any relief that is sought in the form of protection order, residence order, monetary relief, custody order, and compensation order may also be sought in a legal proceeding before the civil court, criminal court, or family court.
To ensure that both the aggrieved and the accused do not share a household, provision of residence orders is entailed under Section 19. The order can be passed –
- Restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from a shared household or alienating or disposing off shared household or encumbering the same.
- Directing the respondent to remove himself from the shared household.
- Restraining the respondent or his relatives from entering the portion of the house where the aggrieved women reside.
- Restraining the respondent from renouncing rights in the shared household except with the leave of the Magistrate.
Directing the respondent to arrange for alternative accommodation for the aggrieved person and paying the rent for the same, as may be required. However, it is pertinent to highlight at this juncture to get relief on the ground that the applicant lives or has lived in the shared household, courts in other countries have considered certain factors as important. For instance, the commitment of the parties to a shared household; a significant period of cohabitation; the nature of financial and other dependencies between the parties including significant mutual financial agreements vis-a-vis the household; having a child out of the relationship; the role of parties in maintaining the household and caring for the children.
Assistance
Voluntary associations and companies that are involved in protecting the rights and interests of women by providing legal aid, medical, financial, or other assistance can get themselves registered as service providers under the Act. These service providers have been given the power to –
- Record the domestic incident report.
- Get the aggrieved person medically examined.
- Provide shelter to the aggrieved person.
The Magistrate may also direct respondent or aggrieved person to, either singly or jointly, undergo counseling with any member of a service provider.
Under Section 12, any relief provided under the Act can be sought by the aggrieved or anyone on her behalf by presenting an application before the Magistrate. The form and particulars of such application must be as prescribed. The format for various applications has been provided in Annexure B.
As mentioned earlier, on request from the aggrieved person or Protection Officer or service provider, the person in charge of the shelter home or the medical facility must provide shelter or medical aid to the aggrieved person.
Protection officers shall also have the duty to maintain a list of all service providers providing legal aid ,counselling, shelter homes and medical facilities in a local area.
For the better fulfilment of the aims and objectives of this Act, the Honourable Supreme Court has bestowed the Courts with certain duties under whose shadow they are bound to act while dealing with the complaints under this Act. Inter alia they include;
- To scrutinize the facts from all angles even when the plea advanced by the respondent to nullify the grievance of the aggrieved person is legally sound and correct.
- The court of law is bound to uphold the truth which sparkles and ensure justice is done. Therefore it must pronounce the decision keeping in mind that the helpless aggrieved person has approached the court in compelling circumstances.
- Before rejecting a petition on the grounds of maintainability the court must see that the aggrieved person is not faced with a situation of non-adjudication.
Restitution
By way of application to the Magistrate, the aggrieved person may also secure an order for compensation and damages for injuries including mental torture, emotional distress, caused by the acts of domestic violence committed by the respondent. Any other order may also be passed with additional conditions or directions by the Magistrate. A copy of the order for monetary relief should be sent to the parties and the in charge of the police station.
Such monetary relief may have been determined to meet the expenses perpetrated by loss of earnings, destruction, damage, or removal of any property from the control of the aggrieved person, medical or maintenance expenses for the aggrieved person and her children.
This monetary relief should be adequate, fair and reasonable, and consistent with the standard of living of the aggrieved. For maintenance lump sum payments or monthly payments may be ordered as the case requires. If the respondent fails to make the payment, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit before the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, the amount may be adjusted towards the monetary relief payable by the respondent.
Compensation
By way of application to the Magistrate, relief in the form of issuance of an order for payment of compensation or damages. This right is available without any prejudice to institute a suit for compensation or damages.
Conclusion
My primary goal in writing this article was to examine the legal framework that is in place to safeguard the rights of an aggrieved person under the Protection of Women from Domestic Violence Act, as well as to shed light in the manner of recompense or anything else that the aggrieved person ought to have received while they were with their husbands’ cum-abusers. From what I’ve learned about this topic, I’ve come to the conclusion that the current situation, and indeed the requirement of the hour, is to educate women about their rights, which will allow them to seek the best way forward rather than simply being helpless in their homes. Furthermore, the parasitic affliction that must be avoided is the inefficient enforcement of laws, which is annihilating the efficacy of the foundation of law upon which the populace’s reliance is based, at a very slow rate. As a result, the current path must be revised following a detailed and dynamic inspection that is the need of the hour.
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