THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005:
Who is an aggrieved? Ans: As per S.2 the term 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.
Who is a Child? Ans: As per S.2 the term Child means any person below the age of eighteen years and includes any adopted, step or foster child.
Whether Minor male is entitled for reliefs under this Act? Ans: Yes, as the term “child”is defined under the law, minors will also be within the ambit of the definition of domestic relationship. Section 2(b) DV Act defines Child.
The mother can make an application on behalf of her minor child (whether male or female). In cases where the mother makes an application to the court for herself, the children can also be added as co-applicants for a relief under the DV Act. The Court can also, whenever appropriate, appoint a guardian or next friend to represent the child.
The female who is in “live-in relationship” or “relationships in the nature of marriage” is entitled for relief under the Said Act? Ans: Yes, Sec 2(f)of the DV Act defines the expression “Domestic Relationship” or “Relatiosnships in the nature of marriage” includes those relationships where there is no marriage between the parties in the sense of solemnization of a marriage under any law. Yet the parties represent to the world that they are a couple and there is stability and continuity in the relationships. Such relationships also known as “live-in relationship”
Different court judgments have discussed on different disputes pertaining to live-in relationships. Live-in relationships are now considered on par with marriage under a new Indian law pertaining to domestic violence. The provisions of the Domestic Violence Act, 2005 are now extended to those who are in live-in relationships as well. The amendments intend to protect the victims of domestic abuse in live-in relationships. Section 2 (g) of the aforementioned Act provides that a relationship between two individuals who live together or have lived together in the past is considered as a domestic relationship. A woman who is in a live-in relationship can seek legal relief against her partner in case of abuse and harassment.
What are the features of the live-in relationships? Ans: In Velusamy v/s Patchaiammal (2010) The Supreme Court stated that a ‘relationship in the nature of marriage’ is akin to a common law marriage. For the purposes of claiming benefits under the domestic violence law, the claimant must satisfy four requirements i.e. (a) the couple must hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried and (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Does the use of term domestic relationship bring “relationships in the nature of marriage” on par with marriages? Ans: The law simply provides protection from violence to all women whether they are sisters, mothers, wives or partners living together in a shared household. The law however, does not state anywhere that an invalid marriage is valid. It provides protection from violence, the right to reside in the shared household, temporary custody of children ,etc. However, for succession to the property of a male partner or in deciding the legitimacy of children, the general law of the land or the personal laws of parties will have to be relied upon.
Against whom the complaint can file? Ans: A women can file a complaint against any adult male perpetrator (S.2 (q)) of an act of violence. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband /male partner who have committed the violence.
Who fall within the meaning of” relatives” under Section 2(q)? Ans: The word “relative “has not been defined in the DV Act. Hence the ordinary meaning will have to be assigned i.e., father, mother, sister, uncle, brother of the respondent who may included in the word “relative in section 2(q). It also include female relatives.
Can a complaint filed against husbands’ female relatives? Ans: Yes, orders can be passed against the female relatives of the husband except the relief of dispossession against the female relative under sec.19 (1) of the Act.
Can mother in law file an application for reliefs against the daughter-in- law? Ans: No, a mother –in –law cannot file an application against her daughter-in –law(Section 2(q))However in cases where a mother-in-law is facing violence at the hands of her son and daughter-in –law as abetting the acts of violence committed by the son.
How long does an interim order remain in force for? Ans: Interim orders shall remain in force till such time either of the parties applies for its alteration, modification or revocation. In order to get such an order, a change in circumstances has to be shown (section 25(2)).Interim orders are also vacated on the granting of the final order by the Court.
Will a divorced wife have a right to claim relief under this DV Act from her Ex-husband? Ans: The answer to this question depends on the facts of the case. In cases where, at the time of divorce, she has in express terms waived such a right, she cannot claim it in the future.
Can there be any appeals from an interim orders? Ans: Section 29 of the DV Act allows appeals to session courts from any orders passed by magistrate. No appeal should lie from an order which have not affected the rights of the parties or is procedural.
Only married men are in danger? . Ans: No. Domestic Violence Bill extends to live-in relationships too.
What is the meaning of Domestic relationship? Ans: 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.
Who is a respondent? Ans: As per S.2(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.
What is meant by Shared house hold? Ans: As per S.2(s) the term “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;
What is the meaning of the term domestic violence? Ans: As per S.3(g) of the Act, the term “domestic violence” has the same meaning as assigned to it in section 3; S.3 defines it as follows:
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.
Who has power to inform the protection officer or Magistrate about the occurrence of Domestic violence? ANs: As per S.4 any person who has a 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 or magistrate. And there is no liability, civil or criminal, shall be incurred by any person for giving in good faith of information given
What is the procedure for obtaining orders under this Act from the court? Ans: The relevant procedure can be known from S.12 to 17.
1) Any aggrieved person or a protection officer or any person on behalf of the aggrieved person may present an application to the magistrate seeking one or more reliefs under this Act.
2) The relief sought in the application may include payment of compensation without prejudice to the right to institute a suit for damages and compensations for injuries caused due to domestic violence.
3) On registration of application, the Magistrate shall fix the first date of hearing, which shall not be beyond three days from the date of receipt of application.
4) Every application shall be disposed off within sixty days from the date of its first hearing as far as possible.
5) The notice of summons to the respondent or any other person will be entrusted to the protection officer who shall serve on the respondent within maximum of two days.
6) During the stage of the proceedings the magistrate may direct the respondent or aggrieved person singly or jointly to undergo counseling with any member of a service provided who is qualified in that respect.
7) When such a directions are give he shall fix the next date of hearing within a period not exceeding two months.
8) The magistrate may secure the service of such person preferably a woman, whether related to the aggrieved person or not to assist him in discharge of his functions.
9) The Magistrate may conduct the proceedings in camera if the situation so warrants
10) 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 she has any right or beneficial interest in the same.
What are the orders that can be passed by the Magistrate? Ans: The relevant procedure can be known from S.18 to 25.
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 may pass a protection order in favour of the aggrieved person:-
Protection orders: S.18: A protection order may contain an order prohibiting the respondent:
1) from committing any act of domestic violence.
2) aiding or abetting in the commission of acts of domestic violence.
3) violence entering the place of employment of the aggrieved person or if child, its school or any other palace frequented by the aggrieve person.
4) attempting to communicate with aggrieved person with the aggrieved person without the leave of the magistrate.
5) alienating the assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties.
6) Causing violence to the dependents other relatives or any person giving assistance to the aggrieved person.
7) Or committing any other act provided in the protection order.
Residence orders: (S.19)): 1) The magistrate while disposing of the application may also pass a residence order:-
(a) restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household.
b) restraining the respondent or his relatives from entering the shared house hold
c) restraining the respondent from alienating or disposing off or encumbering the shared house hold
d) restraining the respondent from renouncing his rights in the shared household except with the leave of the court
e) irecting the respondent to secure alternate accommodation to the aggrieved person of the same level enjoyed by her in the shared house hold or to pay rent for the same:
Provided that no order directing the respondent to remove herself from the shared household shall be passed against any person who is woman.
2) The magistrate may impose additional conditions or pass any other directions in order to protect the safety of the aggrieved person or her child
3) he magistrate also order for execution of a bond by the respondent for prevention of domestic violence
4) An order also may be passed directing the police to give protection to the aggrieved or to assist in the implementation of the orders.
5) An order may also be made to pay the rents and also to return the stridhan property or valuable security to which she is entitled
What orders can be passed by Magistrate w.r.t monetary reliefs? Ans: S.20 1) The Magistrate while disposing 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 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 may also order the employer or debtor of the respondent to make payment direct to the aggrieved person or deposit with the court a portion of the wages or salaries or debt due to or accrued to the respondent
Whether Magistrate can pass custody orders? Ans: Pending the proceedings the magistrate may grant temporary custody of any child to the aggrieved peon or to any one on her behalf and specify the arrangements for the visit of such child by the respondent.
Whether Magistrate can pass Compensation orders? Ans: The magistrate can pass an order directing the respondent to pay compensation and damages for the injury, mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.
Which court has Jurisdiction to entertain applications under this Act? Ans: S.27 of the Act talks about Jurisdiction. It says the Judicial Magistrate of First class can entertain applications under this Act in any of one of the following conditions are satisfied: 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.
- Whether violation of protection order is an offence under this Act?
Ans: yes as per S.31(1) ,the violation of protection order or interim protection order by the respondent is 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. As per S.32, the offence is cognizable and non-bailable. The sole testimony of the aggrieved person is adequate for the court to conclude that an offence under sub-section (1) of section 31 has been committed by the accused.
If protection officer fails discharge his duties he shall be liable to imprisonment which may extend to one year or with fine which may extend to twenty thousand rupees or with both. This Act is in addition to existing laws. Appeal lies to Court of Session from any order passed by Magistrate. The time limitation to file appeal is thirty days on receipt of order by aggrieved person aggrieved by the order. (S.29). The Protection officers are public servants as per S.21 of the IPC. The applications under this Act shall be disposed as per Cr.P.C. The copies of orders shall be given to the parties to the application free of cost.