One in three women faces domestic violence in India. We have evolved a lot but still there are some areas where our country still needs a lot of work to be done. We are talking about domestic violence against women in India. Even in this 21st century, patriarchal conditioning has its impact on men and women by normalising domestic violence. But thanks to the Indian laws that keep on evolving to provide protection to women. To fight against this social evil, you first need to know everything about women’s rights under Domestic Violence Act, 2005.
What Constitutes Domestic Violence?
Over time, the meaning of violence has grown to include not just physical kinds of violence, but also emotional, mental, economic, and other types of cruelty. Thus, domestic violence includes acts that harm or endanger the victim’s health, safety, life, limb, or wellbeing (mental or physical), as well as causing physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse, committed by anyone who is or was in a domestic relationship with the victim.
Prior to the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the victim could approach the court under Section 498-A of the Penal Code, 1860, which provides for ‘husband or relative of husband of a woman subjecting her to cruelty,’ with only a specific set of offences dealing with cruelty to married women being the only recourse. All other instances of domestic violence inside the home had to be handled under the IPC crimes that the different acts of violence represented, regardless of the victim’s gender.
What Is The Purpose Of the Domestic Violence Act?
The Protection of Women from Domestic Abuse Act, 2005, was designed to protect women from acts of domestic violence in order to reduce the burdensome position of law, whether procedural or substantive. The Supreme Court of India emphasized the legislative intent in the case of Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755, where it stated that the DV Act is enacted to provide a civil law remedy for the protection of women from being victims of such relationships, as well as to prevent the occurrence of domestic violence in society. Other legislations, like the CrPC, IPC, and others, where relief has been offered to women in vulnerable situations, were also highlighted.
The objective of the Act states that it is “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.”
In the case of Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412, the Bombay High Court emphasized that the purpose of the DV Act is to provide statutory protection to victims of domestic abuse who lack property rights. The Act provides for a wife’s security and protection regardless of her ownership rights in her dwelling. Its goal is to protect the wife from violence and to prevent future acts of violence.
Women’s Rights Under Domestic Violence Act – How To File A Domestic Violence Complaint?
In order to file a complaint for domestic violence, an aggrieved woman may:
i. Go to the police station and file a complaint, or
ii. File a complaint with a Protection Officer or Service Provider, or
iii. Go directly to the Magistrate.
Protection Orders For Domestic Violence Victim
The Magistrate after giving the aggrieved person and the respondent an opportunity of being heard and if satisfied that domestic violence has taken place or is likely to take place may pass a protection order and prohibit the respondent from:
i. committing any act of domestic violence;
ii. aiding or abetting in the commission of acts of domestic violence;
iii. 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;
iv. attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
v. 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;
vi. causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
vii. committing any other act as specified in the protection order.
Section 18 authorises the Magistrate to issue a protection order preventing respondents from committing any act of domestic abuse, assisting or abetting in the commission of acts of domestic violence, entering the injured person’s place of employment, and so on.
Sections 12 and 18 through 23 of the DV Act govern only civil actions. Reliefs under Sections 18 to 22 of the DV Act can be sought in the Civil Court, Family Court, or Criminal Court since they are civil in character and have nothing to do with a criminal conviction, as specified in Section 26(1) of the DV Act.
Penalty For Breach Of Protection Order Under DV Act
Section 31- Penalty for breach of protection order by respondent:
i. 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.
ii. 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.
iii. While framing charges under sub-section (1), the Magistrates may also frame charges under Section 498A of the Indian Penal Code or any other provision of that Code or the Dowry Prohibition Act, 1961, as the case may be, if the facts disclose the commission of an offence under those provisions.
Section 32- Cognizance and proof:
i. 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.
ii. Upon the sole testimony of the aggrieved person, the court may conclude that an offence under subsection (1) of section 31 has been committed by the accused.”
The Division Bench of the Hon’ble Delhi Court held in Shambhu Prasad Singh v. Manjari, (190) 2012 DLT 647, that domestic violence is not a criminal offence in and of itself, and that only when a protection order under Section 18 is violated by the respondent does such action constitute a punishable offence that can be tried under Section 31 of the DV Act.
Section 31 of the Act punishes only those who violate a protection order issued under Section 18 or an order of temporary protection issued under Section 23 of the Act. Thus, the conduct of acts of domestic violence does not constitute an offence punishable under the Act, and only the violation of an order issued by a Magistrate under Section 18 or Section 23 of the Act is punished under Section 31 of the Act. A person is thus not criminally liable under this Act simply for engaging in acts of domestic abuse or depriving a woman of use of the shared residence. Only the violation of orders issued under Sections 18 and 23 of the Act has been made criminal.
Residence Orders:
The Hon’ble High Court of Madras in M. Muruganandam v. M. Megala, 2010 SCC Online Mad 6012, held that the Act provides for two sorts of reliefs: (a) the right to dwell in a shared home; and (b) the right to obtain residence orders under Section 19 of the Act—Section 19(1) of the Act authorises the Magistrate to issue a range of residence orders. Only when relief is sought under Sections 19(1)(a) to (e) of the Act does a shared household come into play.
If an aggrieved woman seeks orders allowing her to continue to reside in shared household or a protection order allowing her to reside in shared household, then the subject-matter property should be shared household. In such a circumstance, the idea of shared household is not attracted, and the aggrieved lady may seek remedy of other accommodation under Section 19(1)(f) of the Act. The term “shared household” is used in Section 19(1)(f) of the Act solely to allow an aggrieved woman to seek alternative housing that is comparable to the shared home she enjoyed at one time.
The Hon’ble Supreme Court in Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors, CIVIL APPEAL NO. 10084 of 2016, held that when it comes to Section 19 and the Magistrate’s power to issue residence orders, Section 19(1)(c) states that if the Magistrate is satisfied that domestic violence has occurred, the Magistrate may issue a residence order prohibiting the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides. This is another indication that a residency order will be meaningless unless the respondent’s family, including female relatives, are also bound by it. And, as we can see from the definition of “respondent,” this can only be the case when a wife or common law wife is the aggrieved party, not if any other woman in the family is the aggrieved party.
As a result, if a wife or common law wife complains of domestic abuse, the husband’s relatives, including his mother-in-law and sister-in-law, can be named as respondents and effective orders issued against them. However, in the case of an aggrieved person’s mother-in-law or sister-in-law, the respondent can only be an “adult male person,” and because his relatives do not fall within the main part of the definition of the respondent in Section 2(q), residence orders issued by the Magistrate under Section 19(1)(c) against such person’s female relatives would be unenforceable because they cannot be made parties to petitions under the Act.
Monetary Relief:
The court may issue an order for monetary compensation under Section 20 of the DV Act if a woman has incurred an economic loss as a result of abuse. This may include fees incurred by a woman for medical care, any loss of earnings, property damage, and so on. The abused party may also seek maintenance from her male companion.
The provision further states that the monetary relief offered must be adequate, fair, and reasonable, and must be compatible with the quality of life to which the injured individual is accustomed. If the respondent fails to make payment in accordance with the monetary order, the Magistrate may direct the respondent’s employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the respondent’s wages or salaries or debt due to or accrued to the respondent’s credit, which amount may be adjusted towards the monetary relief payable by the respondent.
The Hon’ble Supreme Court in Kunapareddy @ Nookala Shanka versus Kunapareddy Swarna Kumari, CRIMINAL APPEAL NO(S).516/2016, held that monetary reliefs that can be granted by the Magistrate under Section 20 of the DV Act include compensation for lost earnings, medical expenses, loss caused by the destruction, damage, or removal of any property from the aggrieved person’s control, and maintenance for the aggrieved person and her children, if any.
Custody Orders:
The Magistrate may award the aggrieved lady or any person filing an application on her behalf interim custody of the children. This is done to save a mother from being removed from her children, which is an abusive circumstance in and of itself. Section 21 also states that the Magistrate may grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf at any stage of the hearing of the application for protection order or for any other relief under this Act and specify, if necessary, the arrangements for visitation of such child or children by the respondent. However, if the Magistrate believes that the respondent’s visit to the child or children will be detrimental, the Magistrate may reject such contact.
Ex-Parte Orders:
Section 23 empowers the Magistrate to issue such interim orders as he deems just and proper, and 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 reasonable probability that the respondent will commit an act of domestic violence, he may grant an ex parte order on the basis of the aggrieved person’s affidavit in such form as may be prescribed.
Compensation Orders:
On an application by the aggrieved person, the Magistrate may issue an order requiring the respondent to pay compensation and damages for the injuries, including mental torment and emotional anguish, caused by the respondent’s acts of domestic violence.
Maintenance Under Section 12 Domestic Violence Act Over Ancestral Properties of Husband:
1. Kannan v. Maragathammal, 2012 SCC Online Mad 2285,“The decisions of the various High Courts tow the same line, recognise her subordinate interest in her husband’s property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore, is entitled to be maintained out of the profits of her husband’s property and, if so, under the express terms of S.39 she can enforce her right against the properties in the hands of the alienee with notice of her claim. Though the right of the wife to separate maintenance does not form a charge upon her husband’s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it can be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge can be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.”
2. Kubja Devi v. Chhape Ram, AIR 2020 HP 184, “defendant was Karta, therefore, he has legal right to alienate ancestral property in case of legal necessity. Plaintiff has no right to pray for an injunction restraining the defendant from alienating the suit land. It was observed that plaintiff has the remedy of challenging alienation of coparcenary property by Karta on the ground that alienation was not for legal necessity.”
3. Banda Manikyam v. Banda Venkayamma, AIR 1957 AP 710, “The Hindu Married Women’s Right to Separate Residence and Maintenance Act is intended to enlarge and liberalise the rules of Hindu Law governing the rights of a Hindu Woman to maintenance from her husband in the contingencies therein specified. The Act does not curtail or cut down the right of maintenance conferred either by the Hindu Law or by S.39 of the Transfer of Property Act. It does not affect the right of a wife to have payment of her separate maintenance secured by a charge on her husband’s properties in his hands or in the hands of his gratuitous transferee if, under any other law, she has such a right. Though the right of the wife to separate maintenance does not form a charge upon her husband’s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it can be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge can be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.”
This article is written by Anjali Bisht. The author can be contacted via email at anjali@bnblegal.com.
