Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. It was brought into force by the Indian government from 26 October 2006. The Act provides for the first time in Indian law a definition of “domestic violence”, with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse.

Definition

The Protection of Women from Domestic Violence Act 2005 differs from the provision of the Penal Code – section 498A of the Indian Penal Code – in that it provides a broader definition of domestic violence.

Domestic violence is defined by Section 3 of the Act as“any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:

harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

The Act goes on, through the section Explanation 1, to define “physical abuse”,”sexual abuse”, “verbal and emotional abuse” and “economic abuse”

Application to the magistrate

An application regarding domestic violence can be presented to the magistrate seeking one or more reliefs mentioned in sections by:

The aggrieved person,
Protection officer on behalf of aggrieved person
Any other person on behalf of aggrieved person

Jurisdiction of court.

The first class magistrate court or metropolitan court shall be the competent court within the local limits of which

The aggrieved person permanently or temporary resides or carries on business or is employed
The respondent permanently or temporally resides or carries on business or is employed or
The cause of action arises.

Any order made under this Act shall be enforceable throughout India While disposing application the magistrate shall take in to consideration any domestic incident report received from the protection officer or service provider. The relief sought under this section includes the issuance of order of payment or compensation or damages without prejudice to the right of such person to institute suit for compensation or damages for injuries caused by the act of domestic violence. If the magistrate is satisfied that an application prima facie discloses that the respondent is committing or has committed an act of domestic violence or there is a likelihood of such violence, he may grant following exparte interim order against the respondent on the basis of affidavit of the aggrieved person. Magistrate can issue different orders such as Protection order, residence order, monetary relief, custody order or compensatory orders as per the circumstances of the case.

In case of an earlier decree of compensation or damages passed by any other court, in favour of aggrieved person, the amount if any paid shall be set off against the order of amount payable under this act. The application to the magistrate shall be as nearly possible to the formats prescribed under this Act and Rules. After receiving the application the Magistrate shall fix the date of first hearing within 3 days and the magistrate shall endeavor to dispose of every application be within a period of 60 days of the first hearing. The notice of the date of hearing shall be given by the magistrate to the protection officer who shall get it served to the respondent. At any stage of the application, the magistrate may order, counselling of the respondent or aggrieved person either singly or jointly with any member of service provider. The magistrate may secure the service of suitable person preferably a woman including a person engaged in the welfare of women for assisting the court in the discharge of its function. If the circumstance of the case so warrant and if either party so desires the magistrate may conduct the proceedings on camera.

Right to reside in a shared house hold.

Every women in a domestic relationship shall have the right to reside in the shared household, irrespective of the fact that she has right, title or beneficial interest in it. The aggrieved person shall not be evicted from the shared house hold or any part of it by the respondent without the procedure established by the law. The Hon’ble Supreme court in a case, S.R Batra and another V Smt Taruna Batra, held that the exclusive property of mother -in-law of Smt Taruna Batra is not a shared household as defined in S.2 of the Act. shared property means the house belongs to husband or taken rent by him or joint family property. Wherever the couple lived together in the past and treating that property as shared household would lead to chaos and such interpretation would be absurd.

kinds of order issued by the Magistrate

Protection orders:-

After giving an opportunity to the aggrieved person and respondent of being heard and the magistrate is satisfied that a prima facie case of domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person prohibiting the respondent from the following acts such as Committing any acts of domestic violence

Aiding or abetting in the act of domestic violence
Entering the place of employment of aggrieved person or if the person is child, its school or any other places
Attempting to communicate in any form including personal, oral or written, electronic or telephonic contact
Alienating any assets, operating bank account, bank locker held or enjoyed by both parties jointly or singly by the respondent including her sthridhan
Causing violence to the dependents, or other relative or any other person who give the assistance to the aggrieved person or
Committing any other acts specified by the protection officer

Residence orders:-

The magistrate being satisfied that a domestic violence has taken place, pass residence order-

Restraining the respondent from dispossessing or in any manner disturbing the peaceful possession of the shared household
Directing the respondent to remove himself from the shared household
Restraining the respondent or his relatives from entering any portion of the shared house hold where the aggrieved person lives
Restraining the respondent from alienating or disposing of the shared house hold or encumbering it
Restraining the respondent from renouncing his right in the shared household
Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her or to pay rent for the same if the circumstances so require.

No order shall be made against women under this section. Magistrate may impose additional condition and pass any other order to protect the safety of the aggrieved person or her child. Magistrate is also empowered to order direction the concerned station house officer of the police station to give protection to the aggrieved person r to assist in implementing his order. Magistrate may also impose on the respondent to direct stridhan or any other property or valuabale security she is entitled.

Monetary relief.

The magistrate may direct the respondent to pay monetary relief to meet the expenses of the aggrieved person and any child as a result of domestic violence and such relief include

Loss of earnings
Medical expenses
Loss caused due to destruction or removal or damage of any property
Pass order as to maintenance for the aggrieved person as well as her children if any

Including the order under or in addition to an order of maintenance under section 125 criminal procedure code or any other law.

The quantum of relief shall be fair reasonable and consistent with the standard of living to which the aggrieved person is accustomed to. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent.

Child Custody orders:-

Magistrate can grant temporary custody of any child or children to the aggrieved person or to the person making application on her behalf and specify the arrangements for visit of such child by the respondent. Magistrate can refuse the visit of such respondent in such case if it may harmful to the interest of the child.

Compensation orders:-

Magistrate may pass order directing the respondent to pay compensation to the petitioner for injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.

Copies of orders passed by the magistrate shall be supplied free of cost to the parties concerned and police officer and service provider

Any relief available under this Act may also be sought in any other legal proceedings before a civil court,family court or criminal court and such relief may be sought in addition to and along with relief sought for in suit, or legal proceeding before civil or criminal court