DOMESTIC VIOLENCE:
In our society, violence is bursting. It is present
almost everywhere and nowhere is this eruption more intense than right behind
the doors of our homes. Behind closed doors of homes all across our country,
people are being tortured, beaten and killed. It is happening in rural areas,
towns, cities and in metropolitans as well. It is crossing all social classes,
genders, racial lines and age groups. It is becoming a legacy being passed on
from one generation to another.
The term used to describe this exploding problem of
violence within our homes is Domestic Violence. This violence is towards
someone who we are in a relationship with, be it a wife, husband, son,
daughter, mother, father, grandparent or any other family member. It can be a
male’s or a female’s atrocities towards another male or a female. Anyone can be
a victim and a victimizer. This violence has a tendency to explode in various
forms such as physical, sexual or emotional.
Since times immemorial, domestic violence has been an
intrinsic part of the society we are living in. The contributing factors could
be the desire to gain control over another family member, the desire to exploit
someone for personal benefits, the flare to be in a commanding position all the
time showcasing one’s supremacy so on and so forth. On various occasions,
psychological problems and social influence also add to the vehemence. The
present essay deals with the various forms of domestic violence prevalent in
India. Their causes of occurrence in households have been analyzed
categorically. The variation in the intensity of the forms with change in the
geographical location and culture has also been addressed. The aftereffects of
different kinds of domestic violence and the possible remedies have been highlighted.
Finally, a conclusion has been drawn after the complete analysis of the topic
with the juxtaposition of facts and figures at hand.
Acts of physical violence by the husband against his wife include:
pushing, shaking, throwing something at her, slapping, arm twisting, hair
pulling, punching, kicking, dragging, beating, trying to choke or burn her on purpose,
and threatening her or attacking her with a weapon. Acts of sexual violence by
the husband includephysically forcing the wife against her will to have sex or
perform other sexual acts that she did not want to perform.
Acts of emotional violence by the husband against the wife
include: saying or doing something to humiliate her in front of others,
threatening to hurt or harm her or someone close to her, or insulting her or
making her feel bad about herself.
TIMES OF INDIA ARTICLE DATED : 01/02/2012 CHENNAI EDITION
Maharashtra reported the highest number of domestic violence cases in
2010-11 of which economic abuse was the most rampant, followed by the southern
states of Andhra Pradesh and Karnataka, a study has found. While Andhra
reported higher number of physical abuse cases,
Karnataka was evenly placed in cases of economic and physical abuse.
Maharashtra reported 2,433 cases followed by Andhra with 1,174 cases and Karnataka with 1,013 cases. Madhya Pradesh (882) and Kerala (631) followed.
The findings are part of an analysis of orders issued by the magistrate and sessions courts between April 2010 to March 2011. The pattern of violence and abuse are included in the '5th Monitoring and Evaluation Report on the Protection of Women from Domestic Violence Act'. The study in 16 states was done by the Lawyers Collective Women's Rights Initiative in collaboration with the International Centre for Research on Women and UN Women.
Protection of Women from Domestic Violence Act was passed in 2005 to address the gap between the guarantee of the Constitution of equal rights and the gender based discrimination which women faced in their homes. Over 7,500 orders were analyzed, the largest number of cases were filed by married women followed by divorced women and widows. While the number of women in "relationship in the nature of marriage" is small, the study noted that the largest number of cases was in Delhi and the courts had been sympathetic to women in their orders in such cases.
Physical violence along with emotional and verbal abuse was the most common form of domestic violence that women experienced followed closely by economic abuse. The survey also found that courts had increasingly begun to recognize a woman's right to reside in the shared household.
The report, however, did not paint a very rosy picture of the budget allocation, pointing out that 19 states did not have a specific scheme related to implementation of the DV Act. Of the states that had allocated budgets, the allocation ranged from Rs 2 lakh in Meghalaya to Rs 5 crore in Karnataka. However, the trends in expenditure were not flattering with Karnataka reporting 48% expenditure in 2010-2011. Spending had dropped over the last three years in the state as it had with MP.
Maharashtra reported 2,433 cases followed by Andhra with 1,174 cases and Karnataka with 1,013 cases. Madhya Pradesh (882) and Kerala (631) followed.
The findings are part of an analysis of orders issued by the magistrate and sessions courts between April 2010 to March 2011. The pattern of violence and abuse are included in the '5th Monitoring and Evaluation Report on the Protection of Women from Domestic Violence Act'. The study in 16 states was done by the Lawyers Collective Women's Rights Initiative in collaboration with the International Centre for Research on Women and UN Women.
Protection of Women from Domestic Violence Act was passed in 2005 to address the gap between the guarantee of the Constitution of equal rights and the gender based discrimination which women faced in their homes. Over 7,500 orders were analyzed, the largest number of cases were filed by married women followed by divorced women and widows. While the number of women in "relationship in the nature of marriage" is small, the study noted that the largest number of cases was in Delhi and the courts had been sympathetic to women in their orders in such cases.
Physical violence along with emotional and verbal abuse was the most common form of domestic violence that women experienced followed closely by economic abuse. The survey also found that courts had increasingly begun to recognize a woman's right to reside in the shared household.
The report, however, did not paint a very rosy picture of the budget allocation, pointing out that 19 states did not have a specific scheme related to implementation of the DV Act. Of the states that had allocated budgets, the allocation ranged from Rs 2 lakh in Meghalaya to Rs 5 crore in Karnataka. However, the trends in expenditure were not flattering with Karnataka reporting 48% expenditure in 2010-2011. Spending had dropped over the last three years in the state as it had with MP.
DIFFERENT FORMS OF
DOMESTIC VIOLENCE IN INDIA AND THEIR CAUSES
DOMESTIC VIOLENCE AGAINST WOMEN
This form of domestic violence is most common of all.
One of the reasons for it being so prevalent is the orthodox and idiotic
mindset of the society that women are physically and emotionally weaker than
the males. Though women today have proved themselves in almost every field of
life affirming that they are no less than men, the reports of violence against
them are much larger in number than against men. The possible reasons are many
and are diversified over the length and breadth of the country. According to
United Nation Population Fund Report, around two-third of married Indian women
are victims of domestic violence and as many as 70 per cent of married women in
India between the age of 15 and 49 are victims of beating, rape or forced sex.
In India, more than 55 percent of the women suffer from domestic violence,
especially in the states of Bihar, U.P., M.P. and other northern states.
The most common causes for women stalking and
battering include dissatisfaction with the dowry and exploiting women for more
of it, arguing with the partner, refusing to have sex with him, neglecting
children, going out of home without telling the partner, not cooking properly
or on time, indulging in extra marital affairs, not looking after in-laws etc.
In some cases infertility in females also leads to their assault by the family
members. The greed for dowry, desire for a male child and alcoholism of the
spouse are major factors of domestic violence against women in rural areas.
There have been gruesome reports of young bride being burnt alive or subjected
to continuous harassment for not bringing home the amount of demanded dowry.
Women in India also admit to hitting or beating because of their suspicion
about the husband’s sexual involvement with other women. The Tandoor Murder
Case of Naina Sahni in New Delhi in the year 1995 is one such dreadful incident
of a woman being killed and then burnt in a Tandoor by his husband. This
incidence was an outcome of suspicion of extra marital affairs of Naina Sahni
which led to marital discord and domestic violence against her.
In urban areas there are many more factors which lead
to differences in the beginning and later take the shape of domestic violence.
These include – more income of a working woman than her partner, her absence in
the house till late night, abusing and neglecting in-laws, being more forward
socially etc. Working women are quite often subjected to assaults and coercion
sex by employees of the organization. At times, it could be voluntary for a
better pay and designation in the office.
Violence against young widows has also been on a rise
in India. Most often they are cursed for their husband’s death and are deprived
of proper food and clothing. They are not allowed or encouraged for remarriage
in most of the homes, especially in rural areas. There have been cases of
molestation and rape attempts of women by other family members in nuclear
families or someone in the neighbourhood. At times, women are even sexually
coerced by their partner themselves against their will. They are brutally
beaten and tortured for not conceiving a male child. Incidents like, ripping
off a woman’s womb for killing the female foetus when she disagrees for
abortion have also come to light especially in rural areas. Female foeticide
and female infanticide continue to be a rising concern.
Other forms of physical abuse against women include
slapping, punching, grabbing, burdening them with drudgery, public humiliation
and the neglect of their health problems. Some of the other forms of
psychological torment against them could be curtailment of their rights to
self-expression and curbing the freedom to associate with the natal family and
friends.
DOMESTIC VIOLENCE AGAINST MEN
There is no question that domestic violence directed
against women is a serious and bigger problem, but domestic violence against
men is also increasing gradually in India. The supremacy of men in the society
makes one believe that they are not vulnerable to domestic violence. Battering
of men by their spouse and family members has become a concerned issue and is
another form of domestic violence under purview of judiciary. In India,
compared to violence against women, violence against men is less frequent but
it has already taken a deadly shape in many of the western countries by now.
Males have reported incidences of assault against them
like pushing, shoving, slapping, grabbing, hitting which are intended to harm
them and also take their lives on many occasions. Recently, hundreds of
husbands gathered in Chandigarh and Shimla to voice their opinion for men’s
rights and protection against domestic violence subjected to them by their
wives and other family members. It reflects the need for a special law for
curbing domestic violence against men in present times.
If we contemplate over the reasons behind this form of
domestic violence we would find some of the possible causes such as not abiding
by the instructions of the wives’, inadequate earning of men, infidelity
towards wives, not helping the partner in household activities, not taking a
proper care of children, abusing the spouse’s family, infertility of men,
spying the activities of partner, doubting the partner all the time and not
trusting her, revolt by the wife when asked to look after in-laws etc. On many
occasions the spat between men and women becomes public thereby influencing the
society around especially in the villages. In urban areas such forms of
violence may go unreported because of greater privacy. Also the families find
their reputation at stake in urban areas.
DOMESTIC VIOLENCE AGAINST CHILDREN/TEENS
Children and teenagers in our society are not spared
from the evil of domestic violence. In fact, this form of violence is second in
terms of number of reported cases after the ‘violence against women’. There is
a lot of variation in the form of its occurrence in urban and rural areas and
in upper/middle class and lower class families in India. In urban regions, it
is more private and concealed within the four walls of homes. The possible
reasons could be disobeying parental advises and orders, poor performance in
academics or not being at par with other children in neighbourhood, debating
with parents and other family members etc. In addition to this, factors like
not being socially intelligent or as active as the parents expect them to be,
abusing the parents or speaking ill about other family members, not returning
home on time are some other factors.
In rural areas the reasons could be harassment for
child labour, physical abuse or harm for not following family traditions, forcing
them to stay at home and not allowing them to go to school etc. Domestic
violence against girls is in fact more severe at homes. As the common mob
mentality of India prefers to have at least one male child after marriage, the
girls in most of the occasions are cursed and assaulted for having taken birth
in the home. This kind abuse is prevalent both in cities and villages but is
more common in latter case. Then there are cases of paedophilia causing sexual
harassment of children in homes by family member themselves. In fact the number
of rape cases of pre-matured girls has been rising since last few years. A
survey of teens and college students found that rape accounted for 67 percent
of sexual assaults in girls. Apart from sexual abuse and rape, pushing,
slapping, punching, stalking and emotional abuse are other forms of domestic
violence against children.
Adding to the above mentioned causes, there are also
instances of abuse against children who are physically and/or mentally
challenged. Instead of providing them proper health care and treating them
politely, these children are beaten and harassed for not cooperating and
attending to what family members ask them to do. They are even emotionally
abused by cursing them having been in such retarded or handicapped state. In
fact in poor families, there have been reports of selling body organs of the
retarded children for getting money in return. It reflects the height of
cruelness and violence against innocent children.
DOMESTIC VIOLENCE AGAINST OLDS
This form of domestic violence refers to the violence
which old people at home are subjected to by their children and other family
members. This category of domestic violence largely goes under-reported in
India. It is because of the dependency of olds on their children and having a
fear of not being looked after or even ousted if the violence is revealed in
public. The main causes of violence against aged people are – children being
hesitant in bearing the expenses of the old parents, emotionally victimising the
olds and beating them to death to get rid of them. On various occasions, they
are beaten for doing something against the desire of family members. One of the
very common reasons includes torture for property grabbing.
A perturbing trend is the vulnerability of ageing
women to domestic violence in various forms. Given existing structures of
gender discrimination, old women are prone to a greater risk than men of
becoming victims of material exploitation, financial deprivation, property
grabbing, abandonment, verbal humiliation, emotional and psychological torment.
When they fall seriously ill, it is more likely that it is the elderly women in
the family who will be denied proper health care. There is also a widespread
understanding that the neglect, deprivation and marginalisation of older women
are the normal consequences of ageing. In fact the plight of young widows in
homes as discussed above now becomes more serious as a result of the ageing of
those women. They are cut off from the society they are living in, ignored,
abused, cursed, and considered as bad omens. The atrocities of sons,
daughter-in-laws, daughters and husbands could be another cause of domestic
violence specifically against older women. They are restrained from cooking,
housekeeping, or participating in activities outside the home.
While it is difficult to accurately measure the extent
of the problem on a national scale, given the fact that most families deny that
such abuse but we do know that the number of old people in our midst is growing.
A current estimate puts the 60-plus population at around 90 million in India
and is projected to have a population of 142 million older people by 2020.
Given this demographic reality an important concern is the kind of action the
country can take at the individual and societal level to alleviate abuse and
neglect of elderly class.
Other Forms of Domestic Violence in India
There are some more possible forms of domestic
violence prevalent in India other than the ones listed above. On a serious
note, family wars or clan wars are deadly forms of domestic violence across the
country. The reason of such type of violence include dispute over property,
physically or emotionally abusing any member of other family or clan, any
religious cause or conflict arising during a religious ceremony, jealousy
because of progress and financial status of other family, inter-caste marriage
etc. This form of violence is common in many states like Haryana, Punjab,
Andhra Pradesh etc.
One of the other forms of domestic violence is
ill-treatment of servants and maids in households. In many of the affluent
homes, servants are deprived of their salary and basic necessities. They are
harassed and beaten and to work without even taking adequate rest. Similarly
maids are molested by males in the family. Atrocities against small children
working as servants are common and increasing.
To some extent media is also responsible for
contributing to all the above forms of violence. The exaggerated news coverage
of reports of domestic violence, the daily soaps screening the torture of a
daughter-in-law at the hands of family members, the films portraying an element
of violence against people of all age groups etc. are some of the menaces which
media is causing. It is influencing the mindset of the viewers strongly. The
problem arises when instead of taking a lesson from those news clippings,
films, and television shows, people start enacting the same in their homes.
Comparatively, the visual media is far more influencing than the print and electronic
media in these cases. Illiteracy and mob mentality of majority of Indians
misguides them in all these cases.
CONSEQUENCES
OF DOMESTIC VIOLENCE
There are varied consequences of domestic violence
depending on the victim, the age group, the intensity of the violence and
frequency of the torment they are subjected to. Living under a constant fear,
threat and humiliation are some of the feelings developed in the minds of the
victims as a consequence of an atrocious violence. The consequences of the
domestic violence in detail can be broadly categorised under – the Effect on
the victim himself/herself and the family , Effect on the society and the
Effect on nation’s growth and productivity. The ‘Effect on the victim’ has been
further subcategorized for women, men, children and olds.
NEED FOR STRINGENT LAWS
In 1983, domestic violence was recognised as a
specific criminal offence by the introduction of section 498-A into the Indian
Penal Code. This section deals with cruelty by a husband or his family towards
a married woman. The main legislative measures at the national level for the
children who become a victim of child labor include The Child Labor Prohibition
and Regulation Act -1986 and The Factories Act -1948. The first act was
categorical in prohibiting the employment of children below fourteen years of
age, and identified 57 processes and 13 occupations which were considered
dangerous to the health and lives of children. The factories act again
prohibits the employment of children less than fourteen years of age.
The Government of India passed a Domestic Violence
Bill, 2001, “To protect the rights of women who are victims of violence of any
kind occurring within the family and to provide for matters connected therewith
or incidental thereto”*
An act called Protection of Women from Domestic
Violence Act, 2005 [ DVA, 2005 ] also has been passed”. This Act ensures the
reporting of cases of domestic violence against women to a ‘Protection Officer’
who then prepares a Domestic Incident Report to the Magistrate “and forward
copies thereof to the police officer in charge of the police station within the
local limits of jurisdiction.
Unfortunately, at present there is no single law in
the Indian Constitution which can strictly deal with all the different forms of
‘Domestic Violence’ as discussed in this essay. There is an urgent need for
such a law in the country. In fact, there has also been misuse of section 498-A
and DVA, 2005 because of restricted definition of cruelty subjected to married
women.
DUAL
SYSTEM: FAMILY COURT AND CRIMINAL COURT
There
are mainly two legal approaches for women who had suffered domestic violence,
one is filing for divorce through Family Court, and the other is filing
application to Magistrate according to DV Act which might go through Criminal
Legal System. While most of clients do not have well awareness of the legal
system, how advocates or service providers guide them sometimes make great
influences. The rough ratio between amount of women going for divorce and going
for DV Act differs in states. According to the sharing of HRLN Mumbai Unit,
most of the cases in Mumbai went to family court and looking for divorce, while
most of clients of Delhi Office would rather choose to maintain their marriage,
similar as the situation of Kerala.
As
the sharing of participants quoted above, the dual system sometimes makes the
legal proceeding more complex even tedious for them. Also, the social
impression of each approach put some stress on them. For example, it is said
that Magistrates in Mumbai would take the appellants who claim the DV Act
coming for the purpose of money.
Even
some lawyers and judges are unfamiliar with the DV Act. Advocate must be
familiar with DV Act and Sec 498 A when dealing family cases . I still
recollect my first argument with regard to domestic Violence case in Chennai.
Magistrate asked me copy of the book which I was holding in my hand relates to
D.V Act. He posted the argument for next day. And next day argument started .
he was very pleased with my argument. Magistrate himself purchased the book and
gone through with regard to Domestic violence with relating to law. I
appreciate the work done by judiciary in these days and forced local
Magistrates getting more and more aware of the Act. We should
find it also necessary to teach the lawyers not just to file the cases
to the Family Court, also take Criminal Court in considering this domestic
violence act 2005.
MISLED AS A ONE-WAY AFFAIR
Domestic
violence generally seen as a one-way affair, thus the Act was recognized as
providing protection only for wives to against their husbands. In fact,
domestic violence sometimes happens between consanguinity, like child abuse.
Here are two examples of the diversity of DV case:
The
victim of domestic violence could be male or husbands’ side members, too. Also,
there are possibilities of daughter-in-law maltreating old in-laws or other
vulnerable members. Some opinions address the misuse of the Act and treat the
Act as tool for women to against husbands or anti-family; however, it is even
important to clarify that domestic violence is not a one-way affair, instead,
it could happened to family member at different position. The Act should
provide protection to all members to stay safely in the family, not just wives.
SOME IMPORTANT WHICH NORMEL PRUDENT MEN
SHOULD KNOW:
1. Are
minors entitled to reliefs under this law?
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) of the PWDVA defines child as "any person below the age of
eighteen years and includes any adopted, step or foster child".
2. Can a minor male apply for reliefs under
this law?
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
PWDVA. The Court can also, whenever appropriate, appoint a guardian or next of
friend to represent the child.
3. What is the meaning of the expression
'relationships in the nature
of marriage' used in the definition of
'domestic relationship'
(Section 2(f))?
'Relationship
in the nature of marriage' refers to 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 relationship. Such a relationship is also
known as a 'common law marriage'.
Proof of such a relationship would be: the
use of a common name, common ration card, same address, etc.
It is useful to look at the South African
case of Ethel Robinson Women's Legal Centre Trust versus Richard Gordon
Volkas etc, (Case no 7178/03, in the High Court of South Africa, Cape
Province Division), in which the following factors were considered in arriving at
a conclusion on whether or not a relationship can be deemed to be a
relationship in the nature of marriage between the parties :
8. Can a mother-in-law file an application
for reliefs against the daughter in law?
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
she can file an application against her son and daughter-in-law as abetting the
acts of violence perpetrated by the son. She, however, can not ask for removal
of the daughter-in-law from the shared household.
DOMESTIC INCIDENT REPORT
9. What is a "Domestic Incident
Report" ("DIR")?
The format of a DIR is provided in Form I of
the PWDVR. It is to be used for recording complaints of domestic violence
brought by an aggrieved woman to the Protection Officer or the Service
Provider. It is a record of the fact that an incident (s) of violence has been
reported, in that it is similar to an NCR (report
of a non-cognizable offence). It has to be
signed by the Protection Officer or registered Service Provider who fills it
in. It is a public document.
10. How is a DIR to be recorded?
A DIR is meant to be a faithful record of
what the woman says. This means that all complaints must be recorded in a
non-biased manner as long as the act complained of falls within the purview of
the PWDVA.
If a woman is not able to narrate her story
then the Protection Officer may call her on separate occasions to fill in the
DIR. The Protection Officer can maintain a daily diary to enter details of each
of the woman's visit.
11. What is to be done once a DIR has been
recorded?
The DIR is to be forwarded to the Magistrate
by the Protection Officer. A copy of the DIR is to be forwarded to the police
officer in charge of the police station in the jurisdiction. The Service Provider
on recording the DIR may forward it to the Protection Officer and the
Magistrate, if the woman so desires.
If the woman so desires, the Protection
Officer or a Service Provider can assist a woman to file an application for
reliefs after recording a DIR and if the woman so desires. The DIR must be
annexed to the application filed in Court in such cases. 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 the parties will have to be
relied upon.
RESPONDENTS
5. Who can a woman complain against?
A woman can file a complaint against any
adult male perpetrator [Section 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 perpetrated the violence.
The proviso to Section 2 (q) was included in
the PWDVA as, under Section 498A of the IPC, it is possible to prosecute the
relatives of the husband for cruelty, whether male or female, example,
mother-in-law, father-in-law, sister-in- law, etc.
6. Who fall within the definition of
'relatives' under section 2 (q)?
The word 'relative' has not been defined in
the PWDVA. Hence the ordinary meaning will have to be assigned. Therefore,
examples of relatives would be the father, mother, sister, uncle; brother of
the respondent who may be included in the word 'relative' in Section 2(q).
Section 498A also uses the term 'relative' which is not defined. Hence the
ordinary meaning of the word 'relative' will include female relatives.
7. Can a complaint be filed by a wife against
the husband's female relatives, for example, mother-in-law, sister-in-law?
Yes, orders can be passed against the female
relatives of the husband. However, relief of dispossession against a female
relative cannot be granted according to the proviso to Section 19(1)
which states that no order under Section 19(1) (b) directing the respondent to
remove himself from the shared household can be passed against any person who
is a woman.
The aggrieved woman may obtain a protection
order against the female relatives of the husband or the male partners.
Maintenance (under orders for monetary reliefs) can only be obtained by those
persons falling within the ambit of Section 125 CrPC. the husband witness the
violence, it is unlikely that any relative of the husband will support the
woman. The woman, therefore, will be the primary witness in
cases under the PWDVA.
When no direct eye witness evidence is
available, and there is only the statement of the statement of the woman,
circumstantial evidence is considered to arrive at a conclusion on the facts of
he case. It is therefore important, that the context in which the verbal or
emotional abuse takes place be mentioned
(Explanation II Section 3). Care should be
taken to record the history and circumstances of the case, the impact of the
violence on the woman and her children must be mentioned. Verbal and emotional
violence often has health consequences for the women. Children also may suffer
adverse consequences in their performance at school or in their
interactions with others. All this must be pointed out as evidence of violence
to the court.
EX PARTE ORDERS
18. At what stage of the proceedings can an
interim order be given?
Under what conditions can an ex parte order
be given?
The SC in Morgan Stanley v Kartick Das [(1994)
4 SCC 225] has outlined guidelines in deciding whether an ex parte injunction
is to be given. It held that ex parte injunction is to be given only in
exceptional circumstances and the factors that should be considered are as
follows:
(a) where irreparable or serious mischief
will ensure to the plaintiff.
(b) whether the refusal of ex parte injunction
would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at
which the plaintiff first hadnotice of the act complained so that the making of
improper order against a party in his absence is prevented.
(d) The court will consider whether the
plaintiff had acquiesced for some time and in such circumstances it will not
grant ex parte injunction.
(e) The court would expect a party applying
for ex parte injunction to show utmost good faith in making the
application.
(f) Even, if granted, the ex parte injunction
would be for a limited period of time.
(g) General principles like prima facie case,
balance of convenience and irreparable loss would also be considered by the
court.
12. What should a Magistrate on the receipt
of a DIR?
A magistrate should preserve it for the
purposes of maintaining a record. It may be referred to in cases where an
application is filed directly by the aggrieved woman. It may also be used in
cases where an application is filed by with the assistance of a Protection
Officer along with a DIR at a later stage.
13. Can a DIR be filled in by the aggrieved
woman or her lawyer?
No, a DIR can only be filled in by the
Protection Officer or a registered Service Provider as Form I requires the
signature of either one of them. Further, as a DIR is a public document, it can
only be filled in by a Public Servant. Section 30 deems all Protection Officers
and members of Service Providers as public
servants while discharging their functions
under the PWDVA.
14. Can an aggrieved woman file an
application without a DIR?
Yes, an aggrieved woman can file an
application for reliefs without filing a DIR.
15. In cases where women directly file
applications for relief, should the Magistrate call for a DIR once the case is
filed?
There is no need for a DIR at the stage when
an application is filed in court as stage for the DIR is past and its purpose (i.e.
recording the history of violence) does not exist. Once an application is filed
in court, a Magistrate may order the Protection Officer to conduct a home visit
or any other report under Rule 10 (1)if the circumstances so require.
16. Can a Protection Officer conduct a home
visit when recording a DIR?
No, a Protection Officer cannot conduct a
home visit without a court order.
EVIDENCE TO PROVE DOMESTIC VIOLENCE
17. What evidence is needed to prove
"verbal and emotional abuse" or sexual abuse?
Since the relief sought under the PWDVA is
civil in nature, proof will be tested on the balance of probabilities and proof
beyond reasonable doubt is not required. It must be remembered that domestic
violence is unique as it takes place within the privacy of the home where no
outside witnesses are likely to be present. If it happens within a joint family
then, although the relatives of Supreme Court while construing the term
'residing' as used in Section 19 (iii) of the Hindu Marriages Act observed as
follows :
"in
its ordinary sense residence is more or less of a permanent character. The expression
resides means to make an abode for a considerable time; to dwell permanently or
for a length of time; to have settled abode fir a time. It is the place where a
person has fixed home or abode. Where there is such a fixed home or such abode
at one place, his legal and actual residence is the same and he cannot be said
to reside at any other place where he has gone on a causal or temporary visit.
But if he has no established home, his actual and physical habitation is where
he actually or personally resides."
However, in a recent judgment of the Madras
High Court in Vandana Vs. Mrs.Jayanthi Krishnamachari ( O.A No.
764/2007), it was observed that in view of Section 17, the married woman has a
right to reside in the shared household and even if she has not physically
lived in the shared household, she is deemed to have lived in the shared household as it
is her de jure right.
23. Does a right to residence affect the
respondent's right to property?
The PWDVA does in no any way create any
substantive right in the property in favor of the woman or transfer property
from the respondent to the aggrieved person. A residence order simply enables a
woman to reside in the shared household or be restored and prevents
dispossession. It also enables a woman to bar the perpetrator of violence from
entering the house even if he is the owner of the property (in order to guard
against any further acts of violence).
24. Can an aggrieved woman who has been
disposed from the shared house hold ask for an order restoring her to the possession
of the shared household?
Section 3(e) (iv) defines "economic
violence" to mean 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. Hence, denial of access to the shared household is "domestic
violence". A dispossessed wife can therefore, file an application to be
given access to the shared household as a protection order under Section 18 read
with Section 17(1) which gives her a de jure right to reside in the
shared household. She is deemed to be residing there.
INTERIM ORDERS
19. How long does an interim order remain in
force for?
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.
20. Can there be any appeals from an interim
order?
Section 29 of the PWDVA allows appeals to
sessions courts from any orders passed by Magistrate. Appeals against interim
orders have been limited by courts on numerous occasions while interpreting
relevant provisions under the CPC and the CrPC. No appeal should lie from an
order which has not affected the rights of the parties or is procedural.
RELIEFS UNDER THE PWDVA
Right to residence
21. What is a shared household?
A shared household is a household where the
woman lives or has lived with the man in a domestic relationship. She may not
be living in the shared household at the time of the application for relief, as
she may have been disposed from the shared household in the past. Such women
are also entitled
to relief under the PWDVA as long as the
domestic relationship subsists. It does not matter that the shared household is
not owned by either the woman or the man. In India, the general pattern of
family is the joint family, where more than one generation lives under the same
roof with their spouses and children. In case a women's husband is living
in such a joint family, that household will be the shared household of the
woman. Sisters, who live in ancestral property owned by their father or other
ancestor, are also living in the shared household. All that has to be proved is
that the woman lives or has lived with the perpetrator of violence in
this home in a conjugal relationship; or in a familial relationship as
described above.
22. What is the meaning to be given to the
expression 'lived or has lived' used in Section 2 (s)?
The words 'lived or has lived' must carry the
same meaning as the term 'reside'. In Jeewant Pandey v Kishan Chandra Pandey
[(1981) 4 SCC 517],
23. Will a divorced wife have a right to
claim relief under this PWDVA from her ex-husband?
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. If, for example,
she has been divorced and has waived her right to maintenance in her divorce
settlement which does not entitle her to the shared household, she will not be
entitled to a residence order or any other order. The law in this regard is
settled in the case of B.P. Achala Anand versus Appi Reddy & Anr.
(2005) 3 SCC 313 and Ruma Chakraborty versus Sudha Rani Banerjee
& Anr. (2005) 8 SCC 140 A woman may be advised to settle her right to
residence at the time of divorce.
Where there are children and the mother has
custody, the court will ordinarily give appropriate relief at the time of
granting the divorce or alimony, including a residence order as the children
are to be housed and the mother is regarded as the custodian and caretaker.In
cases where the woman has not waived her right to maintenance or alimony at the
time of divorce she may apply for permanent alimony under the relevant matrimonial
law. She is also entitled to seek maintenance under Section 125 of the CrPC or
unde her relevant personal laws.
24. Can a husband who has been ordered out of
a shared household under Section 19 (b) apply for an order for the restitution
of conjugal rights?
An order for the restitution of conjugal
rights can only be obtained if the following grounds are proven :
----That the person has 'withdrawn from the
society' of the petitioner.
---- That there is no reasonable cause or
excuse withdrawing.
---- That there is no legal ground against
the granting of such a relief.
The first condition is satisfied when the
woman gets a residence order directing the petitioner to remove himself from
the shared household.Courts, in various judgments, have held that conduct
amounting to domestic violence provides the other party a reasonable cause to
withdraw from the society of the other person. Conduct on part of the
petitioner that makes it impossible for the respondent to live with the petitioner
(Gurudeveo v Sarwab, 1960 PLR 744), or to live happily with the
petitioner, has also been regarded as 'reasonable cause' and hence restitution
can be refused. Restitution has also been refused when the petition is not bona
fide or with an ulterior motive. (Hamid v Kunra ILR (1918) 40 All
332). If an application of restitution of conjugal rights is filed to frustrate
a woman's claim to the right to reside then
such application can be denied by the
court.Under Section 18 (2) (b) of the HAMA, a wife has the right to live
separately from her husband if he has treated her with cruelty and in such a
case no restitution can be granted.
25. If
the aggrieved woman facing domestic violence does not want to live in the
shared household as she apprehends further violence, can she claim a separate
residence under the PWDVA?
Yes, she can under Section 19(1)(f). This
provision is also useful in cases where the husband who lives in rented or
official accommodation, either leaves the house or the job to show that he is
not in a position to provide access to the shared household. It will prevent
the woman from being rendered homeless in
cases where she is evicted by following due
process of law as the respondent, under the Section 17 (2) of the PWDVA , could
be directed to provide her with an alternative accommodation or pay rent for a
place that the woman may be living in.
Hindu Adoption and Maintenance Act, 1956
("HAMA") also entitles a woman to live separately It is recommended
that an order directing the respondent to pay rent for alternate accommodation
be made only in cases where the woman is capable to finding an alternate
residence herself or if she so desires. In other cases, the respondent should
be made liable to secure the alternate residence as it is his obligation to maintain
her and residence has been deemed to be part of the right to maintenance.
ORDER FOR MONETARY RELIEF/ COMPENSATION
ORDERS
26. Who is entitled to claim maintenance
under the PWDVA?
All categories of persons mentioned under
Section 125 of the CrPC are entitled to claim maintenance under this law. This
includes the wife, minor children whether legitimate or illegitimate, major
children suffering from physical or mental abnormalities or injuries and the
mother. Others entitled under their
personal laws may also claim.
27. How is the amount for monetary relief to
be calculated?
Under
Section 20 of the PWDVA- the monetary relief amount has to be
adequate,reasonable and fair and consistent with the standard of living to
which the aggrieved woman is accustomed. In calculating the amount of monetary
relief the courts will follow the standards prescribed under the law of
maintenance.
[Section
23(2) of the HAMA] Court has to consider the following factors while arriving
at the amount of monetary relief to be granted:
- The
social status of the couple, this includes the husband's income and standard of
living of the couple
- The
reasonable needs of the wife: this includes, at the very minimum, her needs as
to food, clothing, residence and medical expenses
- - The value of the wife's property and income, if any
- The
number of persons entitled to maintenance from the husband under the HAMA: this
includes, besides the wife, children, her parents and a widowed
daughter-in-law.
28. Can an order for monetary relief be a
lumpsum amount or does it have to be in monthly instalments?
Whether monetary relief is a monthly payment
or in the form of a lump sum one time payment will depend on what the aggrieved
woman has asked for and on the discretion of the court. Under the PWDVA either
monthly payment or lump sum may be granted under Section 20 (3)
29. If a woman has already obtained an order
under Section 125 CrPC or any other suit for maintenance, can she apply under
thePWDVA seeking its enforcement?
There is no advantage to seeking the
enforcement of a Section 125 order under this law. However, the breach of
Section 125 order can be regarded as being economic abuse, and hence 'domestic
violence'.
30. What does the proviso to Section 12(2)
mean? How will the set off be calculated?
Proviso to Section 12 (2) states that where a
decree for any amount as compensation or damages has been passed by any court
in favor of the aggrieved person, the amount, if any, paid or payable in
pursuance of the order made by the Magistrate under the PWDVA shall be set off
against the amount payable under such decree and the decree shall be executable
for the balance amount,
if any, left after such set off.
After the order is passed, the amount will
then be deducted in accordance with the provisions under Section 125 Cr PC or
HAMA or any other law.
31. Can a Muslim woman seek an order for
monetary relief under the PWDVA?
A Muslim woman who is not divorced can ask
for monetary relief under the PWDVA. However, if she is divorced her rights will
be determined under the Muslim Women (Protection of Rights on Divorce) Act,
1986 and she will have to go under that law or under Section 125 CrPC. (See
Daniel Latifi v Union of
India [(2001)7 SCC 740]A Muslim woman can
apply for an order for monetary relief against her son.
32. How will the court ensure that orders for
monetary relief and compensation, alternate accommodation are executed when the
respondent does not have the means of making the payment?
The Supreme Court in Leelavati v State of
Uttar Pradesh (1982 (1) SCC 437) has opined that if a person is healthy and
able bodied he must be held to have the means to support his wife, children and
parents. The Court may initiate proceedings under Section 125 (3) of the CrPC
and cause the Respondent to be arrested, if he does not pay on an order
under Section 125.
33. What is the procedure to be followed in
cases where an order for monetary relief is not complied with?
Rule 6 (5) provides that all orders under the
PWDVA will be enforced the manner laid down under Section 125 of the Code of
Criminal Procedure. Rule 10 (e) provides that the Protection Officer, if
directed to do so in writing by the Magistrate shall assist the courting
enforcement of orders in the proceedings under the Act in the manner directed by the
Magistrate, including orders under Section 12, 18,19,20 21,23. Proceedings for enforcement of orders under
the PWDVA may be initiated as provided under Section 125 (3) of the CrPC.
Magistrate may issue a warrant for levying the amount due in the manner
provided for levying fines and may sentence a person for the whole or any part
of the monthly amount or any other amount mentioned in the order granting
monetary relief.
In appropriate cases the Court may direct the
respondent's employer to pay the aggrieved person directly, under Section 20
(6) of the PWDVA, by attachment of property, etc.
When the Magistrate gives an order for
monetary relief coupled with a Protection Order, then non-compliance with the
order shall amount to breach under Section 31 of the PWDVA. It is advisable
always to ask for a protection order coupled with any other relief.
The moral and religious welfare must be
considered as well as its physical well being. Nor can the ties of affection be
disregarded." Walker v Walker - 6, 1981 New Ze Recent Law 257
"Welfare is an all encompassing word. It
includes material welfare, both in the sense of adequacy of resources to
provide a pleasant home and a comfortable standard of living and in the sense
of an adequacy of care to ensure that good health and due personal pride are
maintained. However, while material considerations have their place they are
secondary matters, understanding care and guidance, the warm and compassionate
relationships, that are essential for the full development of the child's own
character, personality and talents."
ENFORCEMENT
34. How will an order against prohibiting the
respondent from communicating with the aggrieved woman be enforced?
If the
communication is by phone, a record can be kept and the aggrieved person can be
advised to install a caller ID.If the communication is by e-mail, a record of
the same can be kept and produced before the court as evidence. If the
respondent visits the aggrieved person at her office or at the residence, the
aggrieved person should immediately call the police so that the respondent
violating the order can be arrested. Rule 10 (e): The Protection Officer, if
directed to do so in writing by the
Magistrate
shall assist the courting enforcement of orders in the proceedings under the
PWDVA in the manner directed by the Magistrate, including orders under Section
12, 18,19,20 21,23.
The Protection Office should be contacted and
informed about the communication made by the respondent so that immediate
action can be taken as per procedure under the PWDVA.
A bond to maintain peace (for preventing any
further acts of domestic violence) may also be executed under section 19 (4).
Police help may also be sought to give protection to the aggrieved woman or
aiding her in the enforcement of any order given under this law.
35. What can be done to prevent the breach of
a residence order?
The Magistrate order the Respondent to
execute a bond for preventing the commission of domestic violence under Section
19 (3) which provides for residence orders. The breach of any order under
Section 19 shall then be dealt with in accordance with the procedure set out in
Chapter VIII of the CrPC.
Hence violations of conditions in the bond
may lead to the arrest of the respondent.
Under Section 20(4) the magistrate is
required to send a copy of the order for monetary relief to the police. How
will this order be enforced since the police have not been given any power to
get the order enforced? When the order is given to the police, the aggrieved
person should also ask for an order directing the police to assist in the
enforcement of the order. Even if such a direction is not given, it is
necessary to keep a record of the domestic violence with the police so that
they have a history of the case and can assist when the necessity arises. If a
Protection Order has been given in conjunction
with the order for monetary relief, then
breach of a protection order is a cognizable offence and a complaint may be
lodged with the police under Section 31.
CUSTODY ORDERS
36. Can a woman claim custody over her
children under the PWDVA?
Yes, under Section 21 of the PWDVA. It is to
be noted that custody orders can be applied for only in addition to
applications for protection or other orders. This means that where there is domestic
violence and a woman wants a protection order, etc, she can also apply for
temporary custody. The magistrate can give for orders of temporary custody of
children only. This will not prevent the other party from going to an
appropriate forum and seeking permanent custody or joint custody of the
children. If a matter with regard to custody of children is pending in a court,
an application under the PWDVA for temporary custody of children can be made in
the same court.
37. How will the court decide on the best
interest of a child?
At the time of deciding on applications of
temporary custody the best interests of the child or the welfare of the child
must be kept in mind. In Rosy Jacob v Jacob Chakramakkal, the SC while
opining on matters to be considered in appointing a guardian, held that
"In considering what will be the welfare
of the minor, the Court shall have regard to the age, sex and religion of the
minor, character and capacity of the proposed guardian and his nearness of kin
to the minor…"
The welfare of the child is not to be decided
on the aspect of material comforts alone. In McGrath (Infants) (1983) 1
Ch 143 quoted with approval in Dhanwanti Joshi v Madhav Unde (1998) 1
SCC 112 it was held that
".. the welfare of the child is not to
be measured by money alone nor by physical comfort only. The word 'welfare'
must be taken in its widest sense.
SOME JUDGEMENT RELATES TO DV ACT:
This judgment of the
Delhi High Court was delivered on a writ petition filed by the mother-in-law
seeking to quash proceedings under the PWDVA initiated against her in a lower
court. The petition challenged the constitutionality of the PWDVA on two
grounds:
1. The
gender-specific nature of the Act, by rexcluding men, is arbitrary and, hence,
violates Article 14 of the Constitution
2. The petitioner contended that the placing of “near or like marriage” status (relationships in the nature of marriage) at par with ‘married’ status in Section 2(f) of the Act leads to the derogation of the rights of the legally-wedded wife.
2. The petitioner contended that the placing of “near or like marriage” status (relationships in the nature of marriage) at par with ‘married’ status in Section 2(f) of the Act leads to the derogation of the rights of the legally-wedded wife.
The Court dismissed the
first contention on the grounds that, “there is a difference between class
legislation and reasonable classification”1. The gender-specific nature of the
PWDVA (2005) was held to be a reasonable classification in view of the object
that the Act seeks to achieve and, hence, was held to be constitutionally
valid.
The Court rejected the
second contention by saying that there is no reason why equal treatment should
not be accorded to a wife as well as a woman who has been living with a man as
his “common law”2 wife or even as a mistress. The court opined that, “like
treatment to both does not, in any manner, derogate from the sanctity of
marriage since an assumption can fairly be drawn that a ‘live-in relationship’
is invariably initiated and perpetuated by the male.”
Aggrieved by the application
filed by his wife under the PWDVA, this writ petition was filed by the husband
and his family members challenging constitutionality of the Act and alleging
that the proceedings initiated in the lower court was a complete abuse of
process of law. Following are the main grounds on which the PWDVA was
challenged:
1. The
PWDVA is violative of Article 14 and 21 of the Indian Constitution as the law
does not permit a husband to file an application against the wife.
2. Sections 4, 12, 18, 19, 23 & 29 of the Act were challenged as providing preferential treatment to the wife and hence, affecting the right to life and liberty of the husband and his relatives. Section 23 in particular was challenged as arbitrary and conferring unrestricted powers on the Magistrate.
2. Sections 4, 12, 18, 19, 23 & 29 of the Act were challenged as providing preferential treatment to the wife and hence, affecting the right to life and liberty of the husband and his relatives. Section 23 in particular was challenged as arbitrary and conferring unrestricted powers on the Magistrate.
During the arguments,
the counsel for the respondents referred to the judgment of the Delhi High
Court in Aruna Shah v. UOI (supra) and argued that special protection provided
to women is intelligible differentia and hence, the gender-specific nature of
the Act does not make it unconstitutional.
The Madras High Court
agreed with the contention of the respondents and noted that when the
Constitution itself provides for making special provision for women, the
contention that there could be no special treatment for women cannot be
accepted. The court highlighted the fact that the PWDVA was enacted as a
special legislation for women in keeping with Article 15(3) of the
Constitution. It was also pointed out that this provision on special measures
has been widely used to enact legislations and executive orders for women and
the courts have upheld their validity. The Madras High Court went on to cite
several judgments of the Supreme Court where sex was held to be a sound
classification under Articles 14 and 15. Hence, this writ petition was
dismissed by the court.
Interpretation
of “respondent” and “domestic relationship”
Female relatives
of the husband are “respondents”:
This revision petition
was filed challenging the order of the appellate and trial courts, which
withdrew proceedings under the PWDVA against the mother-in-law on the basis
that women cannot be made respondents under the Act.
Before the Rajasthan
High Court, the counsel for petitioner argued that the lower courts failed to
appreciate the proviso to Section 2(q) which states that a complaint can be
filed against relatives of the husband or male partner. It was contended that
the term “relative” is not gender-specific.
The High Court held
that the term “relative” is quite broad and includes all relatives of the husband
irrespective of gender or sex. Hence, the lower courts overlooked the proviso
to the section and allowed the revision petition challenging withdrawal of
proceedings against female relatives under the PWDVA.
Similar judgments have
also been passed clearly stating that women can be made respondents under the
PWDVA in Nand Kishor and others vs. State of Rajasthan MANU/RH/0636/2008 and
Rema Devi v. State of Kerala I (2009) DMC 297
“Shared
household” and Right to Reside:
In this judgment, the
Supreme Court interpreted the expression “shared household” under section 2(s)
of the PWDVA and held that an aggrieved wife has the right to reside in the
shared household, which was held to mean a house belonging to or taken on rent
by husband, or house which belongs to joint family of which husband is a
member.
The Court was called
upon to decide whether the wife had the right to reside in the premises, owned
by the mother-in-law, and held that since the premises was owned by the mother
in law, the wife could claim no right to reside there. The Court reached the
conclusion that in India, there is no right to reside in the matrimonial home,
and there was no statute akin to the Matrimonial Homes Act, 1967 in England.
Moreover, it held that she cannot claim an injunction against dispossession
from the property because she was not in possession of the said premises. With
regard to the relief of alternate accommodation claimed under Section 19(1)(f),
the Court held that the claim for alternative accommodation can only be made
against the husband and not against the husband's in-laws or other relatives.
On these grounds therefore,
the Supreme Court allowed the appeal, and set aside the judgment of the Delhi
High Court granting temporary injunction against dispossession to the
respondent.
Residence in shared
household is a de jure right of the legally wedded wife:
In this interim
application in a suit for permanent injunction filed by the wife restraining
the respondents from dispossessing her, the Madras High Court provided a broad
interpretation to “shared household” and “domestic relationship” as defined
under Section 2(s) and Section 2(f) of the PWDVA, respectively. The
respondent-husband contested the right of the aggrieved wife to reside in the
shared household under Section 17 of the PWDVA because the parties had not
“lived together” in the shared household for even a single day after their
marriage. The parties disputed even the very fact of marriage. The Court, upholding
the right of the aggrieved wife to reside under Section 17, held that she has a
de jure right to live in the shared household because of her status as a wife
in the domestic relationship.
Distinguishing
facts of the case:
The criminal revision
petition was filed by husband and family seeking reversal of an order of the
lower court in an application filed by the wife under Section 23(2) of the
PWDVA (2005), alleging dispossession from the matrimonial home. The
Magistrate’s Court had granted a residence order and allowed the police to
break open the lock of the “shared household”.
The husband and his
family contended that the house in question was, in fact, owned not by the
husband but, by his mother, in whose name it was registered. Hence, it was not
a “shared household” for the purposes of PWDVA (2005). It was also alleged that
because there was a divorce proceeding pending between the parties, the wife
was not entitled to any relief under the Act.
Dismissing the
afore-mentioned contentions, the High Court of Madras held that the ratio laid
down by the Supreme Court in S.R. Batra v. Taruna Batra (supra) could not be
applied to the instant case as the facts clearly demonstrated that the husband,
with the intention of defeating the rights of the wife, had transferred the
household into the name of his mother, after the matrimonial dispute arose. In arriving
at its conclusion, the Court recognised the fact that, before the wife’s
dispossession, both parties resided jointly in the said household. The Court
also held that pending divorce proceedings did not affect the granting of
relief(s) under the PWDVA (2005).
DIR, Application
and Service of Notice:
DIR is not a
prerequisite for taking cognizance of application under Section 12 and private
notice served is in consonance with the Act:
In this petition before
the High Court of Madras to quash ongoing proceedings on an application under
the PWDVA in a lower court, the following issues were raised regarding the
necessity of complying with procedures prescribed:
1. That the service of
notice is not in accordance with the procedure prescribed under Section 13(1)
of the Act namely, that notice was not served by the Protection Officer and
private service was permitted. Further, there is no declaration of service by
the Protection Officer.
2. That the
Magistrate has admitted the application without calling for the report of the
Protection Officer as required by the proviso to Section 12(1).
The Court dismissed
both contentions at the threshold. It held that the lower court had made every
effort at serving the notice to the petitioner and that directing the private
service of notice is in consonance with the procedural mandate under Section 28
of the Act and that, therefore, a declaration of service by the Protection
Officer is not required. The Court also held that receipt of the Protection
Officer’s report is not a condition precedent for taking cognizance of an
application under Section 12 of the PWDVA.
Application
under Section 12 not filed in prescribed format does not invalidate it:
In this petition before
the High Court of Allahabad, the husband challenged the application filed by
his wife under the PWDVA (2005) on the ground that such an application could
not be filed directly before a Magistrate without first approaching the
Protection Officer and recording a Domestic Incident Report (DIR). The husband
also argued that the application was not in the prescribed format as provided
in Form II.
The Court dismissed
both contentions on the grounds that the provisions of the Act were not
accurately interpreted by the husband. It held that as the PWDVA is a social
legislation, its purpose is to help the aggrieved person and not impose strict
procedural requirements. The Court held that a plain reading of Section 12(1)
shows that the aggrieved person can file complaint directly to the Magistrate
concerned. The court referring to the word ‘or’ used in Section 12(1) stated
that it is her choice that instead of directly approaching the Magistrate, she
can approach the Protection Officer and, in case of emergency, the service
provider. There is no bar in directly approaching the Magistrate for taking
cognizance in the matter. The Court further explained that, “it is for the
Magistrate concerned to take help of Protection Officer and service provider
after receiving the complaint provided, if he feels it necessary for final
disposal of the dispute between the parties”. The DIR therefore, is to be
recorded only if the Magistrate or the parties require the assistance of the
Protection Officer.
Statutory
remedies to be exhausted before approaching higher courts:
This judgment by the
High Court of Delhi held that procedure for appeal under the PWDVA must first
be used before approaching higher courts through writ or appellate
jurisdictions. An application seeking a residence order was filed under the Act
before a Magistrate’s Court. The Magistrate passed an interim order directing
the aggrieved person not to be dispossessed from the shared household pending
final disposal of the application. This writ petition for quashing the interim
order was filed before the Court under Article 227 of the Constitution.
The Court dismissed the
writ petition and held that, “an order passed by the Magistrate under this Act
has an alternate relief under the PWDVA itself which has not been availed of by
the petitioner in the instant case.” The court stated that where a right or
liability is created by a statute which gives a specific remedy for enforcing
it, the remedy provided by that statute only must be used. A person may
approach the higher court under any other provision only after the specific
statutory remedy has been exhausted.
Judgments
relating to other laws where PWDVA has been interpreted:
In this case, the
parties got married after the husband obtained an ex-parte divorce from his
first wife. After a few years, the parties filed separate proceedings, the
husband for a divorce and the wife for maintenance under Section 18 of the
Hindu Adoptions and Maintenance Act, 1956 (HAMA). Under Section 18, maintenance
can only be claimed by a “Hindu wife”. During the course of the proceedings
under HAMA, it came to light that the ex-parte divorce granted to the husband
for his first marriage had been set aside. The second wife’s petition for
maintenance under HAMA was, therefore, dismissed on the grounds that the
marriage between the parties was not legally valid as the husband had an
earlier subsisting marriage. The dismissal of this petition was appealed before
the Delhi High Court by also relying upon the provisions of PWDVA (2005).
The Court held that
while existing case law under HAMA excluded the granting of maintenance to the
second wife where there is a subsisting valid first marriage, the trial court
had, in this case, failed to recognise the fact that the decree of divorce was
in operation on the day that the second marriage was solemnised, making this
second marriage legally valid. Referring to the “mischief rule”, the Court
stated that if a liberal interpretation is not given in this case, it would
amount to giving immunity to the husband for defrauding the appellant-wife.
Therefore, the appellant-wife, at least for the purposes of claiming
maintenance under Section 18 of HAMA, is to be treated as legally wedded. In
arriving at its decision, the Court also placed reliance upon Sections 2(a),
18, 20 and 26 of the PWDVA (2005).
A similar
judgment has been passed by the Delhi High Court in Smt. Narinder Pal Kaur
Chawla v. Shri Najeet Singh Chawla AIR 2008 Delhi 7
1 The doctrine of
“reasonable classification” has been evolved by Indian courts to examine
whether a law is consistent with the right to equality guaranteed under Article
14 of the Constitution. The Delhi High Court explained the requirements of
Article 14 by stating that, “What Article 14 of the Constitution prohibits is
‘class legislation’ and not ‘classification for purpose of legislation’. If the
legislature reasonably classifies persons for legislative purposes so as to
bring them under a well-defined class, it is not open to challenge on the
ground of denial of equal treatment that the law does not apply to other
persons....”
2 “Common law”
marriages refer to individuals who have lived together for a substantial period
of time and who represent to the world that they are married. Some of the
factors taken into account to determine a common law marriage are whether the
parties reside in the same household, have children from the relationship,
share names, etc. Such marriages are recognised as valid in law.
Thanks
Dr. Zulfiqar Ali Khan
Advocate
No. 462, Addl law Chambers
High Court of Madras
Chennai-600 104
MB: 9884102961
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