TABLE OF CONTENTS
- SALIENT FEATURES OF PWDV ACT ARE AS FOLLOWS
- MECHANISMS FOR IMPLEMENTATION
- Some important judicial pronouncements on the aspect of the aggrieved person has the right to reside in the shared household
- ORDERS UNDER PWDV ACT
- IMPORTANT RULINGS ON DVC
Introduction:- While the Complex dynamics often involved in domestic violence may make development of certian ideas particularly challenging, it is important to remember that serious consideration of these issues has only just begun. Persons harmed by domestic violence torts would be more likely to receive compensation than they are now. More broadly, it is time to address, rather than take for granted, the relative lack of deterrence and compensation that the tort and insurance systems provide for domestic violence torts. In this context, it is seminal to see the difference between under Protection Women from Domestic Violence Act, 2005 PWDV Act and Torts. Crimes are different from torts in that those who have committed a crime have acted against society rather than just an individual person. In Giduthuri Kesari Kumari’s case, it was held that the cases under Protection Women from Domestic Violence Act, 2005 PWDV Act are purely civil in nature. Now, the point is that besides domestic violence case under the Act of 2005, whether one can file a civil suit or not. In paragraph Nos.61 and 66 of Indra Sarma (AIR 2014 SC 309) it was observed that wife and children of marriage party i.e., live-in-relationship with a married person under the tortuous liability can sue for damages by civil suit. See also. G. Venkata Mutya Venu Gopal Vs. G. Venkata Ramanamma, Vijayawada and another- 2016 (3) Andhra Law Times (Crl.)(A.P) 179.
”Lack of conjugal relationship between the spouses knocks down the very substratum upon which the edifice of the institution of marriage exists” is a sound principle of law. Recently, the Hon’ble Apex Court in Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and others: 2011 (3) SCC 650 considered the definition of ”Respondent” defined under Section 2(q) of the Act of 2005, and held that “although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint. See also. Kaniz Fatima Vs. State of Rajasthan and another, – 2012 (2) ALT (Crl) (NRC) 32 (D.B). The Protection of Women from Domestic Violence Act, 2005 is an Act to provide for 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. The object of this Act was considered in 2017 (3) Andhra Law Times (DNSC) 7 (DB), Hiral P. Harsora and others Vs. Kusum Narottamdas Harsora and others observing that a reading of the statement of objects and reasons makes it clear that the phenomenon of Domestic Violence against women is widely prevalent and needs redressal The idea is to provide various innovative remedies in favour of women who suffer from Domestic Violence, against the perpetrators of such violence. In fact, the Act 2005 Act is to provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family.
Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violenceagainst women is one of the crucial social mechanisms by which women are forced into subordinate position compared with men – Declaration on Elimination of Violence against Women, 1993.
”Action under Civil Law for intentional torts such as battery, assault, and intentional infliction of emotional distress are rare, particularly in relation to the high rate of domestic violence in our society.”
Live-in-relationship:- Apex court held that appellants status is lower than the status of a wife and that relationship does not fall within the definition of domestic relationship under Section 2(f) of the Act Consequently, any act, omission or commission or conduct of respondent in connection with that type of relationship would not amount to domestic violence under Section 3 of the Act If any direction is given to respondent to pay maintenance or monetary consideration to appellant, that would be at the cost of the legally-wedded wife and children of respondent, especially when they had opposed that relationship and have a cause of action against appellant for alienating the companionship and affection of husband/parent, which is an intentional tort. See. Indra Sarma’s case, 2014 (1) ALT (CRL) SC 1 (D.B).
SALIENT FEATURES OF PWDV ACT ARE AS FOLLOWS: –
1. A clear declaration of the basic intent of the law, namely the prevention of domestic violence.
2. A clear and unambiguous statement of the right of women to be free from domestic violence and the recognition of domestic violence as violation of the human rights of women.
3. A definition of domestic violence that captures women’s experience of abuse in its manifold form.
4. A recognition of a woman rights to reside in the shared household and her protection from illegal dispossession.
5. Access to immediate orders to prevent further acts of violence, to provide remedies for violence faced and to prevent destitution of women.
6. Infrastructure available to women to facilitate access to justice both in terms of court mandated remedies and other support services.7. Provision for coordinated response to domestic violence by recognizing and building upon the experience of other agencies that have traditionally provided assistance to women in distress.
1. ‘Aggrieved person’ –defines who can initiate proceedings under the PWDVA. This includes:
1. Any women who allege that they have faced domestic violence from the respondent/s
2. Any woman on behalf of the child
3. Any other person on behalf of the aggrieved person including the Protection officer. For the purpose of this section: Child being defined as “any person below the age of eighteen years and includes any adopted, step or foster child”, and is gender neutral.4. For scope of the term “Aggrieved person”, See. Kusum Lata Sharma Vs. State and another – 2012 (1) Andhra Law Times (Crl) (NRC) page 22 and Kishor Shrirampant Kale Vs. Sou. Shalini Kishor Kale and others.
2. ‘Domestic Relationship‘ – The elements of domestic relationship are: 1) The relationship must be between two persons who
a) live or
b) have at any point lived together in a shared household.
The Hon’ble Division Bench in 2018 (1) ALT 339 DB – Union of India, rep. by its Secretary, Ministry of Consumer Affairs, Food & Public Distribution, New Delhi and another Vs. Lakshmi Suri, it was observed that if there was no lawfully wedded wife, then the person in a relationship with the Government servant may also have a right to seek pension But where there is already a lawfully wedded wife living at the time of death of the Government servant and the marriage between her and the deceased had not been dissolved or annulled, then it is that wife who will get the family pension We are of the considered view that the respondent is not entitled to family pension.
3. Shared household is the household where the aggrieved person lives or at any stage has lived in a domestic relationship either singly or along with the respondent. (See. V. D. Bhanot v. Savita Bhanot, Supreme Court in Special Leave Petition (Crl) No. 3916 of 2010.)
Shared household includes households:
1. That are owned or tenanted either jointly by the AP and the Respondent, or by either of them;
2. Where either aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity or
3. Which may belong to the joint family of which the respondent is a member, irrespective of whether either of them have any right, title or interest in the shared household.
MECHANISMS FOR IMPLEMENTATION:-
1. DVC Application:
The Magistrate may receive an application under section 12 of the PWDVA with or without the DIR from (See. Milan Kumar Singh & Anr V State of Uttar Pradesh, 2007 Cri LJ 4742 [ MANU/UP/0827/2007]):
1. Aggrieved person
2. Protection officer
3. Service provider
4. Woman on behalf of the child
5. Any other person on behalf of the Aggrieved person Since the PWDVA is in addition to and not in derogation of any other law, the aggrieved person can also make an application for reliefs under PWDVA, in any pending litigation. Section 26.
2. Service of Notice:-
i) Once the application is filed, the Court shall issue notice to the Respondent to appear in the court.
Section 13(1) of the PWDVA prescribes that the notice shall be given by the Magistrate to the PO, who will get it served by means as prescribed. The means are further prescribed under Rule 12(2), which provide that the notice can be served either by the PO or any other person on her/ his behalf. The Rule specifically states that for service of notice, the procedure prescribed under the CPC or CrPC, as far as practicable, may be adopted. Rule 12 (2) (c).
In view of the above, the court may direct the notice to be served upon the Respondent, either :
a). By the PO, with assistance from police officer of the concerned police station. In such cases, the PO shall provide a declaration of such service. Rule 13(2).
b). Directly by the Police officer of the concerned Police station. In view of the unambiguous mandate in Section 13(1), the courts should not direct the Aggrieved person to handover the notice to the PO or the Police officer of the concerned police station, as the case may be. The notice should be directly sent to the Po/ Police officer of the concerned Police station, as the case may be.
ii) For the Respondents staying abroad or for interstate service, notice served through email / fax shall suffice and print out/acknowledgment of the same shall be adequate proof of notice. See. The Delhi High Court in its Practice Direction (No. 29/Rules/DHC) dated 9th September, 2010 has stated that where email addresses of parties are available, process shall also be sent through email, in addition to other modes of service.
3. Time limit for service: a. The notice must be served, not later than two days, from the date on which it was received by the PO/Police. See. Section 13 (1) of PWDVA. b. That the Police officer of the concerned police station or PO, as the case may be, is required to submit acknowledged copy of the Form VII to the Court before the next date of hearing.
4. Next date of hearing: a) The court should fix the next date of hearing within three days from the court’s receipt of application under section 12. See. Section 12 (5). b) In case where the parties are from different states, fifteen days time should be fixed and notice should be served at least 3-5 days prior to date of hearing.
5. Ex parte or interim ordersshould be passed, after service of notice: a) On non-appearance of the Respondent: If the notice is duly served and the Respondent fails to appear or file his written statement, the Court may pass an exparte order on the basis of affidavit. See. section 23(2) r/w Form III. b) On appearance of the Respondent: On the first date of appearance, he/ they shall file the written reply/ proceed to argue orally to the notice to show cause issued by the Court. After hearing the party/ies the Magistrate shall pass interim orders on the basis of affidavits. See. Interim orders are the orders which are passed at the appearance of the Respondent as provided under section 23 (1) of the PWDVA. In Morgan Stanley Mutual Fund v. Kartick Das with Arvind Gupta v. Securities and Exchange Board of India and Ors, Supreme Court, [MANU/SC/0553/1994], it was held that while passing interim orders, the following factors may be taken into considerations:- 1. Whether irreparable or serious mischief will ensue to the aggrieved person if the application is not granted.2. Whether refusal to grant orders would involve greater injustice than grant of it would entail.
6. Counseling and/or mediation:- 1. Section 14 (1) of PWDVA empowers the Magistrate to direct either or both parties to counseling at any stage of proceedings. Rule 14 further lays down the conditions under which such counseling is to be conducted. 2. As part of this scheme for court-directed counseling, subrules (7), (9), (11), (12), (13) & (14) of Rule 14 envisage efforts to arrive at a settlement between the parties, only if the aggrieved woman so desires.
7. While passing final orders: 1. The courts shall follow summary procedure as prescribed under Sections 262-264 CrPC. Towards this, for purposes of the proceedings; it shall as far as possible, pass orders on the basis of affidavits. 2. While passing final orders, where facts have already been admitted, no cross- examination may be required. See. Section 156, CrPC. 3. The Magistrate should record substance of evidence in all cases, tried summarily. Particular care must be taken in this regard in cases in which appealable sentence are likely to be passed. (As seen from Chapter 3, Maharashtra Criminal Manual, 2007). 4. The Magistrate should record the order/judgment with a brief statement of supporting reasons. See. Section 265(1), CrPC.5. The Magistrate should endeavor to dispose off the application within 60 days from the date on which it was filed under Section 12 of the PWDVA. See. Section 12(5).
8. Enforcement of orders:- The following measures shall be adopted by the Courts to ensure enforcement of orders passed under PWDVA: 1) Rule 15 (7) provides that any resistance to the enforcement of the orders of the court under the Act by the Respondent or any other person purportedly acting on his behalf shall be deemed to be breach of the protection order or an interim protection order covered under the Act. Thus every order shall state that the breach of the order/s shall be deemed to be criminal offence under section 31 of PWDVA. See. Rule 15(7). For details on Breach of protection order, see the following subsection VIII) Breach of Protection Order under Section 31 PWDVA.2. The Magistrate may direct the Police officer of the concerned police station to give protection to the aggrieved person and her dependants. See. Section 19(7).
9. For the purpose of implementation of orders :- 1.The Magistrate may direct the Police officer of the concerned police station to assist the aggrieved person and/ or PO in the implementation of orders. See. P. Babu Venkatesh and Ors V. Rani, Madras High Court, [ MANU/TN/0612/2008] wherein it was held that residence order is one of the protection order and the Police was directed to break open the lock of the house and provide protection to the aggrieved person to reside in the shared household. Also see. Section 19(5) .2. May direct the Protection officer, to restore the possession of personal effects belonging to the aggrieved person with specific direction to the police officer of the concerned police station to assist in the implementation of order. See. Section 19(8).3. May direct the Protection officer to assist the aggrieved person to regain custody of her children or supervise the visits with specific direction to the Police officer of concerned police station to assist in the implementation of order. See. Rule 10(1)(d).4. May direct the Respondent/s to execute bond, with or without sureties, for preventing domestic violence. See. Section 19(3).
10. Breach under section 31 of the PWDVA: -1. Sections 18 – 22 of PWDVA should be read together, a violation of any order shall be considered to be cognizable offence and resistance to enforcement shall be considered as breach under section 31 of PWDVA. See. Rule 15 (7). 2.Complaint under section 31 of PWDVA shall be tried by the same Magistrate without affecting the proceedings of the main application under PWDVA. See. Mrs. Pramodini Vijay Fernandes V. Vijay Fernandes, Bombay High Court, Writ Petition No. 5252 of 2009.3. All such breach proceedings shall be separated from the main application under section 12 of PWDVA.4. Proceedings under section 31 of PWDVA shall be tried summarily in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 (2) of 1974. See. Rule 15 (6).5. Sole testimony of the aggrieved person under section 32(2) of the PWDVA shall be adequate and PO may also be examined, for the limited purpose of any reports that he/ she might have filed in the Court. 6. Where the complaint of breach under section 31 discloses an offence under section 498A, • IPC or any other cognizable offence not summarily triable, the Magistrate should first frame the charges as mandated under section 31 (3) of PWDVA and separate the proceedings. See. Rule 31(6). 7. The other offences other than section 31 shall be tried in manner ordinarily prescribed under the law.
11. Appeal:- The courts shall not halt the proceedings and/ or stop the execution of the order/s in the lower court, unless the higher Judiciary has granted a specific stay order. In 2018 (2) ALT (2) (Criminal) (A.P) 70(Jallarapu Laxman Rao Vs. Jallarapu Pedda Venkateswarlu and others), His Lordship Hon’ble Sri Justice M.Satyanarayana Murthy J. held that a regular appeal would lie either against an ad interim order or an order passed by way of interim relief under Clause (2) of Section 23 of the Act is maintainable.
12. Service Providers (Section 2 (r )):- 1. Organizations, registered under the PWDVA, that provide assistance to aggrieved persons in terms of shelter, counseling, legal aid, medical aid, vocational training, etc. Section 10. 2. Service Providers are also authorized to receive and record complaints of domestic violence and to conduct Court directed counseling as provided under Rule 14.
13. Medical Facilities (MF):- 1.Those facilities notified under the PWDVA by State Governments. Section 2(j). 2. Notified medical facilities cannot refuse to provide medical aid to an aggrieved person. (Section 7). They are also authorized to record DIRs. Rule 17(3).
14. Shelter Homes :- Those notified under the PWDVA by the State Governments under the PWDVA. Notified shelter homes cannot refuse to provide shelter to an aggrieved person. Rule 16 (2).
15. Police: Police are duty bound to provide information to the aggrieved person about the rights and remedies provided under PWDVA, facilitate her access to the PO (Section 5), initiate criminal proceedings when needed and act on the directions of the Court to provide protection and to assist in the enforcement of orders. See. Section 19(5) & (7). 16. Legal aid : 1. To provide free legal aid to the aggrieved person. Rule 5(d). 2. To ensure effective legal representation in the court to effectuate her rights under PWDVA.
I. Some important judicial pronouncements on the aspect of the aggrieved person has the right to reside in the shared household:
1. Where the property is in the name of husband and the in-laws, the wife has a right to reside. See. Jyotsana Sharda v. Gaurav Sharda, Delhi High Court [ Criminal Revision petition No. 132 and 133/2009, MANU/DE/3520/2009].
2. Where the property was owned by the husband but has subsequently been transferred in the name of the in-laws, with intention to deny the wife’s rights, the women has a right to reside in shared household. See. P. Babu Venkatesh and Ors V. Rani, Madras High Court, [ MANU/TN/0612/2008].
3. Where the husband has a right, title or interest in the property for the purpose of section 17 of PWDVA, Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, Bombay High Court [ MANU/MH/1295/2008], is shared household and hence the aggrieved person has a right to reside in the shared household.4. In Eveneet Singh v. Prashant Choudhury and Kavita Choudhury v. Eveneet Singh, MANU/DE/3497/2010, the Delhi High Court, while distinguishing the facts from Batra v. Batra, also pointed out that “in Batra, the dispute did not emerge or emanate from any provisions of the Domstic Violence Act;”
II. ORDERS UNDER PWDV ACT:-
1. Protection orders (Section 18):- a) Injunctive orders to prevent domestic violence or the commission of any act that adversely affects the aggrieved person’s right within home b) Protection orders are chiefly in the nature of the “Stop Violence” orders designed to put an end to additional acts of violence by the Respondent against the Aggrieved person and/ or acts that adversely impact on her rights as recognized under PWDVA. c) Threat of violence is sufficient (Section 3 ( c ) defines “domestic violence” to include an act or conduct that ‘ has the effect of threatening the aggrieved person or any person related to her’) for granting Protection Order Thus protection order can be issued upon a bonafide threat of violence or the reasonable apprehension of its occurrence. It is not necessary that the domestic violence has already occurred. d) Protection order should be granted in addition to the other reliefs under PWDVA. 2. . Residence orders:- Section 17 recognizes right to reside and 19 of PWDVA provides residence orders to prevent the aggrieved person’s dispossession as well as to prevent any act that adversely affects her peaceful occupation of the shared household. In Vandana V. T. Srikant Krishnamachari and Anr, (2007) 6 MLJ 205 (Mad), Madras High Court has held that where the husband has a right, title or interest in the property for the purpose of section 17 of PWDVA is shared household, it is immaterial whether the parties have cohabitated in the said property. In such cases, by virtue of being wife, the aggrieved woman has a dejure right of residence in shared household. 3. Monetary relief:- Section 20 of PWDVA 1. Provides for monetary orders. 2. The aim of this provision is to ensure that women facing domestic violence have adequate financial support and are not rendered vulnerable due to their financial dependence on male members of the family. 3. It is powerful tool for ensuring gender equality in economic terms. It does not contain any exception in favour of husband and in fact it recognizes moral and legal duty of the husband to maintain his wife. See. Sukrit Verma and ANr V. State of Rajasthan, Rajasthan High Court (Jaipur Bench) [ MANU/RH/0337/2011], Om Prakash v. State Rajasthan, Rajasthan High Court (Jaipur Bench) [MANU/RH/0324/2011].4. Orders granting temporary custody of children:– The PWDVA deals only with temporary custody of children as an urgent measure to ensure that the Aggrieved person is not harassed by denying access to the children1. To protect the children 2. To ensure that they are not used pawns to coerce the woman to stay in a violent domestic relationship. It is important to emphasize that custody orders are temporary in nature and that issues of permanent custody have to be decided in accordance with provisions of the Personal law applicable to the aggrieved person or the Guardianship and Wards Act. The best interest of the child shall be of paramount consideration to decide the temporary custody of the child. In Purvi Mukesh Gada Vs. Mukesh Popatlal Gada and another , 2017 (3) ALT (CRL) SC 265 DB, it was held that Custody of Child Custody will lie with mother, respondent father can access on weekends as well as half of the vacations.
5. Compensation order:- For mental and emotional distress caused to the aggrieved person, which are in addition to orders for monetary relief. The amount of compensation can be determined by the Court after assessing the facts and circumstances of the case and the extent of injuries sustained.
III. IMPORTANT RULINGS ON DVC:-
1. Section 10 says that the aggrieved person can file a complaint directly to the Magistrate concerned. The learned Judge pointed out that the word. Indra Sarma Vs. V.K.V. Sarma (SC) Whether a “live-in relationship” would amount to a “relationship in the nature of marriage” within the definition of “domestic relationship”.
2. Under Section 12 of the Act provides choice to the aggrieved person to approach the Magistrate for taking cognizance in the matter.
3. It is for the Magistrate concerned to take the help of the protection or service provider after receiving the complaint, provided he feels it necessary for final disposal of the dispute between the parties.
4. The Magistrate can take the help of the protection officer, he will submit a domestic incident report to the Magistrate concerned.
5. the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’ to be akin to common law marriage. See. D.Velusamy vs D.Patchaiammal (2010), CRIMINAL APPEAL NOS. 2028-2029__OF 2010 [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]. Supreme court ruling.
6. In Chandra Rekha vs. State of A.P 2010(2) ALD (Crl.) 689 (AP) is to the effect that mere impleadment of petitioners in domestic violence case does not give rise to criminal offence to quash the proceedings at the initial stage. See. A. Ashok Vardhan Reddy And Others vs Smt. P. Savitha And Another.
7. In view of Section 36 of the Act, which makes the Act not in derogation of any other law, the domestic violence case and the criminal case are independent of each other, more so, in view of Section 26 of the Act. See. A. Ashok Vardhan Reddy’s case.
8. S.R.Batra vs. Taruna Batra – 2006 (TLS) 43393 the Supreme Court was dealing with the question whether the daughter-in-law can claim any right of residence in the house belonging to the mother-in-law and not the husband, and not the question as to whether a domestic violence case is maintainable against a woman as a respondent.
9. Courts not powerless to allow amendment to a Complaint under Domestic Violence Act. See. The Apex Court in KUNAPAREDDY @ NOOKALA SHANKA BALAJI VS. KUNAPAREDDY SWARNA KUMARI.
10. Section 2 (f) of D.V.Act provides that “domestic relationship means relationship between two persons who lived or have at any point of time lived together”.
11. the provision of Section 31 of the Act of 2005 clearly spells out that the application under Section 31 of the Act of 2005 lies when there is a breach of a protection order or an interim protection order. The term “protection order” is defined Section 2 (o). “Protection order”means an order made in terms of Section 18. Kanchan VS. Vikramjeet Setiya, Raj HC, 123/2010, 2013, Crl. L.J¬85
12. . It becomes apparent that Section 31 of the Act of 2005 empowers the Magistrate to prosecute and punish a respondent in the event such respondent breaches the order passed under Section18 of the Act of 2005. Section 18 of the Act of 2005 does not deal with monetary relief. Kanchan VS. Vikramjeet Setiya, Raj HC, 123/2010, 2013, Crl. L.J¬85
13. Monetary relief has been defined inSection 2 (k) of the Act and such reliefs are to be granted by way of proceedings under Section12 and 23 of the Act of 2005. Kanchan VS. Vikramjeet Setiya, Raj HC, 123/2010, 2013, Crl. L.J¬85
14. The Section 12 covers in its application all kinds of reliefs including monetary relief as well as protection order and compensation. The noncompliance of the order under Section 12 can be either of protection orders or of the order seeking monetary relief. Kanchan VS. Vikramjeet Setiya, Raj HC, 123/2010, 2013, Crl. L.J¬85 See. Sunil Madan Vs. Mrs. Rachna Madan & Anr. (Del.HC) Scope of section 12 of PWDVA, 2005.
15. non- compliance of an order of monetary relief does not give rise to the consequence of Section 31 of the Act of 2005. Kanchan VS. Vikramjeet Setiya, Raj HC, 123/2010, 2013, Crl. L.J¬85
16. SC Strikes Down Words ‘Adult Male’ From The Definition Of “Respondent” Under Section 2(Q) Of DV Act… See. Hiral P Harsora and ors Vs. Kusum Narottamdas Harsora & Ors…
17. Section 23 which enables the court to make ex-parte orders. See. Shambhu Prasad Singh vs Manjari., CRL.M.C. 3083/2011 & CRL.M.A.10914/2011; Date of judgment on 17 May, 2012
18. Giduthuri Kesari Kumari And Others vs State Of Telangana Criminal Petition Nos.7289 of 2014, Judgment dated 16 February, 2015 1. the remedies which are in civil nature and enquiry is not a trial of criminal case 2. the Court need not insist for personal attendance of the parties for each adjournment like in criminal cases. 3. the Magistrate shall issue a notice of the date of hearing fixed under Sec.12 to the Protection Officer for serving on the respondent. 4. Even if the respondents failed to turn up after receiving notice and file their counter affidavit if any, the Magistrate need not take coercive steps for securing their presence and on the other hand he can treat them as Non-contesting respondents and pass an exparte order by virtue of the power conferred on him under Sec.23 of the D.V.Act.
19. 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 Section 18 to 22 of the Act are in the nature of civil reliefs only. See. Gundu Chandrasekhar And Others vs 1. The State Of A.P.
20. Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad & Anr. (SC). In absence of declaration annulling first marriage by competent court, women of second marriage entitled to maintain complaint against second husband. (In view of highly contentious question raised by the appellant in this case).
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 – (DVC) – QUICK VIEW
22. Saraswathy Vs. Babu (SC) Whether conduct of the parties before coming into force of PWDVA, 2005 can be considered .
23. Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad & Anr. (SC). In absence of declaration annulling first marriage by competent court, women of second marriage entitled to aintain complaint against second husband. (In view of highly contentious question raised by the appellant in this case).
24. D. Velusamy Vs. D. Patchaiammal (SC) Expression “domestic relationship” includes not only relationship of marriage but also relationship in the nature of marriage.
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 – (DVC) – QUICK VIEW
26. Kavita Dass Vs. NT of Delhi & Anr. (Del.HC) Court cannot ask the aggrieved person to vacate the house even though on rent.
27. Rakesh Sachdeva & Ors. Vs. State of Jharkhand (JHC) Alternative accommodation to the victim, of the same level as being enjoyed,or rent for the same.
28. Ashok Vardhan Reddy and Ors. Vs. Smt. P. Savitha and Anr. (Andhra HC) Both, the case under PWDVA, 2005 and other criminal case are maintainable and cannot be quashed under section 482 of Cr.P.C.
29. Sambhu Prasad Singh Vs. Manjari (Del.HC) Magistrate is not obliged to call for and consider the DIR before issuing notice to the respondent however if DIR has also been submitted, that should be considered in view of Section 12(1) of PWDVA, 2005.
30. Rulings on Residence Orders: 1) Vandana v. T. Srikanth Krishnamachari and Anr, Madras High Court [(2007) 6MLJ 205 (Mad) 2) Ishpal Singh Kahai V. Mrs. Ramanjeet Kahai, Bombay High Court [ MANU/MH/0385/2011] 3) YamaVs. Ankit Manubhai Patel, Gujarat High Court [ MANU/GJ/0546/2014].
31. Rulings on Monetray relief :- 1. Sukrit Verma and Anr v. State of Rajasthan, Rajasthan High Court (Jaipur Bench) [ MANU/RH/0337/2011. 2. Om Prakash v. State Rajasthan, Rajasthan High Court (Jaipur Bench) [ MANU/RH/0324/2011]. 32. Regarding Payment of maintenance: 1) Rajesh Kurre V. Safurabai & others, Chattisgarh High Court at Bilaspur in Criminal Misc Petition No. 274 of 2008 4. Regarding Quantum of maintenance 1) Jasbir Kaur Sehgal v Dist. Judge Dehradun [(1997) 7 SCC 7, MANU/ SC/0835/1997].
32. Decisions on ‘Ex-parte ad interim orders’: Ex-parte ad interim orders on the basis of affidavit 1) Preceline George @ Antony Preceline v. State of Kerala & ors Kerala High Court at Ernakulum in WP (C ) No. 30948 of 2009 (Q) . 2) Sri Sujoy Kumar Sanyal V. Smt Shakuntala Sanyal (Haldar) and Anr. , Calcutta High Court , (MANU/WB/0597/2010).
33. Decisions on ‘Ex-parte ad interim orders’:- Ex-parte ad interim orders on the basis of affidavit 1) Preceline George @ Antony Preceline v. State of Kerala & ors Kerala High Court at Ernakulum in WP (C ) No. 30948 of 2009 (Q) . 2) Sri Sujoy Kumar Sanyal V. Smt Shakuntala Sanyal (Haldar) and Anr. , Calcutta High Court , (MANU/WB/0597/2010).
34. Decision on Direction to the Police to implement order:- P. Babu Venkatesh and Ors V. Rani, Madras High Court, [ MANU/TN/0612/2008]
35. Breach of order u/s 31 of PWDVA:- Complaint u/s 31 shall be tried by same magistrate who passed the order: 1) Mrs. Pramodini Vijay Fernandes V. Vijay Fernandes, Bombay High Court, Writ Petition No. 5252 of 2009.35. Ruling on ‘Shared household’: 1) V. D. Bhanot v. Savita Bhanot, Supreme Court in Special Leave Petition (Crl) No. 3916 of 2010. 2) SR Batra v. Taruna Batra, Supreme Court, [MANU/SC/007/2007].
36. Rulings on ‘Domestic Relationship’: Woman who has been in the past in the domestic relationship with the Respondent would be entitled to invoke the provisions of the PWDVA 1) Maroti s/o Dewaji Lande V. Sau Gangubai w/o Maroti Lande and Prashant s/o Maruti Lande, Bombay High Court [Criminal Writ petition No. 542/2010 , MANU/MH/1763/2011] 2) Karim Khan v. State of Maharashtra through PSO and Nahid Akhtar, Bombay High Court [ MANU/MH/0990/2011] B) PWDVA applicable to the Divorced women: 1) Bharti Naik V. Ravi Ramnath Harlarnkar and Anr , Bombay High court [III (2011) DMC 747 2010]
37. Rulings on ‘relationship in the nature of marriage’: Women who are in relationship of cohabitation or live-in-relationshis: 1) D. Velusamy V. P. Tachaimmal, Supreme Court of India [MANU/ SC/0872/2010 ] 2) Chanmuniya v. Chanmuniya Virendra Kumar Singh Kushwala and Anr., Supreme Court, [2011 (1) ALD (Cri) 370, MANU/ SC/0807/2010].
38. Rulings on ‘Right to reside in the shared household’:- 1) Where the property is in the name of the husband and the in-laws, the wife has a right to reside 1) Jyotsana Sharda v. Gaurav Sharda, Delhi High Court [ Criminal Revision petition No. 132 and 133/ 2009, MANU/DE/3520/2009] 2) Where the property was owned by the Husband but has subsequently been transferred in the name of the in-laws, with intention to deny the wife’s rights, the women has a right to reside in the shared household. 1) P. Babu Venkatesh and Ors v. Rani, Madras High Court, [ MANU/ TN/0612/2008] 3) Where the husband has a right, title or inetrest in te property for the purpose of section 17 of PWDVA is shared household and hence the aggrieved person has a right to reside in the household 1) Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, Bombay High Court [ MANU/MH/1295/2008] D) Eveneet Singh v. Prashant Choudhury and Kavita Choudhury v. Eveneet Singh, MANU/DE/3497/2010.
39. Application under PWDVA 1) Milan Kumar Singh & Anr V State of Uttar Pradesh,2007 Cri LJ 4742.
40. The Magistrate may receive an application under section 12 of the PWDVA with or without the DIR from (See. Milan Kumar Singh & Anr V State of Uttar Pradesh, 2007 Cri LJ 4742 [ MANU/UP/0827/2007]).
41. Non-existence of Domestic Relationship:- Challa Sivakumar and others Vs. Challa Anita and others- 2019 (1) ALT (Criminal) (T.S & A.P) page 66, it was observed that plea of non-existence of domestic relationship at present cannot be taken as an-exception to entertain the quash petition – Criminal Petition is dismissed with the observation that the petitioners shall appear before the Trial Court and vindicate their defence.
42. Burden of proof:- Complainant has to show that she is aggrieved person. See. Kolli Babi Sarojini and others Vs. Kolli Jayalaxmi and another, 2014 (3) ALT (Crl) AP 222.
43. Live-in relationship:- Such relationship Whether amounts t domestic violence or not is considered in Indra Sarma Vs. V.K.V. Sarma, 2014 (1) ALT (CRL) SC 1 DB.
44. Relative of husband or male person:- Relative of the husband or male person must be one who comes within the ambit of that definition which excludes a relative like the respondent. It was held that Legislature never intended to exclude female relatives of the husband or male partner from the ambit of complaint under Domestic Violence Act. See. Nagamuthula Kondaiah Vs. State of A.P., rep. by P.P. and another, 2013 (1) ALT (CRL) AP 5
45. DVC for recovery of marriage expenses:- In K. Veerabhadra Rao and others Vs. State, rep. by Public Prosecutor, and another, 2012 (2) ALT (Crl) (AP) 209, the Andhra Pradesh High Court held that Domestic Violence Case not maintainable for recovery of marriage expenses.
Conclusion:- Apex Court recently held that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. See. 2017 (3) Andhra Law Times (DNSC) 7 (DB) (supra). This Act is to provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family. Under Section 12 of the PWDVA, an aggrieved person can present an application for relief/s to the Court. The same Section also allows a Protection Officer or any other person to file an application for relief/s on behalf of the aggrieved person. The law provides that it is the duty of the Protection Officer to make the application to the Magistrate for orders under the PWDVA, if the aggrieved person so requires.
The PWDVA recognises that aggrieved persons have the best knowledge of their own circumstances and need to make their own decisions on the nature of assistance they need. The PWDVA is designed around the recognition that the support of a Protection Officer can be critical for an aggrieved person. The Protection Officer’s role is to facilitate the aggrieved person’s access to support services of various kinds and to help her navigate the legal system if she chooses to file an application under the Act. The Magistrate may direct the Police officer of the concerned police station to assist the aggrieved person and/ or Protection Officer in the implementation of orders. The psychological and emotional harm caused by domestic violence can be substantial and continue long after a Court has issued relief. But Court intervention should not be the only remedy available to women facing domestic violence. Adults are not the only victims of domestic violence. Children may also be affected, whether at the hands of an abusive father or male relative or simply by experiencing the emotional trauma of witnessing the mother being subjected to domestic violence within the home.
Section 21 provides for the grant of temporary custody of children to the aggrieved woman (or to the person who has applied on their behalf) at the time of granting protection orders. The underlying rationale is twofold: to protect the children and to ensure that they are not used as pawns to coerce the woman to stay in a violent domestic relationship. In its Statement of Objects and Reasons, the PWDVA recognizes domestic violence as a serious human rights concern and deterrent to development. It further mentions that since existing criminal law does not address this phenomenon in its entirety, there is a need to enact a civil law aimed, “to provide for more effective protection of rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family”.
In G. Venkata Mutya Venu Gopal Vs. G. Venkata Ramanamma, Vijayawada and another – 2016 (3) ALT (CRI) (AP) 179, it was held that from the above as per Section 20(1)(d) monetary relief includes 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 Cr.P.C or any other law for the time being in force. It speaks the amount of maintenance awarded by Criminal Court under Section 125 Cr.P.C in a quasi-judicial proceedings if already passed that is to be taken into consideration in fixing the quantum for any amount being entitled to award under the D.V.C claim as part of monetary relief and under Section 20(3) it can be even a lumpsum or by monthly payments of maintenance as nature and circumstances of the case may require. In Sikakollu Chandramohan and others Vs. Sikakollu Saraswathi Devi and another – 2010 (3) ALT (Crl) AP 10, it was observed that even though separation between the parties was prior to the Act coming into force, still economic abuse by way of deprivation of aggrieved person of right to residence and right to maintenance etc., would continue both before and after the Act coming into force. As was held in paragraph Nos.61 and 66 of Indra Sarma (AIR 2014 SC 309), wife and children of marriage party i.e., live-in-relationship with a married person under the tortuous liability can sue for damages by civil suit. See also. G. Venkata Mutya Venu Gopal Vs. G. Venkata Ramanamma, Vijayawada and another- 2016 (3) Andhra Law Times (Crl.)(A.P) 179. A more effective civil liability arrangement would be different from what we have now in several other ways.Statutes of limitations would be long enough for a woman to disentangle herself from an abusive relationship and still have time to file suit for injuries. Procedural obstacles such as requiring tort claims be brought with a divorce would be absent. These features also would increase the likelihood that tort claims would be brought, and thus increase deterrence and compensation. This proposed approach has practical limitations, but should better deter tortfeasors and compensate victims than the current system. This Article is intended to examine many of barriers and developed ideas to begin to surmount them.