The Protection of Women from Domestic Violence Acts, main intention is protection of women from violence inflicted by a man and/or a woman. Amongst several legislations which have been dished out by the Parliament for protection of women, the Provisions of the Protection of Women from Domestic Violence Act is a progressive Act, who’s sole intention is to protect women irrespective of the relationship she shares with the accused. The definition of an aggrieved person under the Act is so wide that it takes within its purview even women who are living with their Partners in a live in relationship.

However just as every piece of legislation has its advantages, many women have unfortunately misused the provisions of this Act to drag, torture and harass their husbands, in-laws and relatives in an unnecessary legal battle to vent their personal vendetta and stake a claim in the properties belonging to the husband and the in-laws. It is one of the most lethal weapons which women can use against men to extort money, and harass a man. However the recent judgments passed by the High Courts of several states, including the Apex Court have sagaciously abrogated the misuse of the provisions of the law by several women whilst passing some remarkable judgments on the same. It is indeed a welcome change to witness that in the 21st century when most women are educated, well qualified and independent financially, the Courts have circumspect fully lifted the veil to separate the vulnerable women as against women of dubious characters who toy and misuse the law.

Why a legislation for domestic violence?

Domestic violence is rampant and several women encounter violence in some form or the other almost everyday, however it is the least reported form of cruel behaviour. A woman resigns her fate to the never ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime. This non-retaliation by women coupled with absence of laws addressing women‘s issues, ignorance of the existing laws enacted for women and societal attitude makes women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the Society and the attitude of women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male’s relatives.

Till the year 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victims were invariably at the mercy of the abuser.

Also the relationships outside marriage were not recognised. This set of circumstances ensured that a majority of women preferred to suffer in silence, not out of choice but of compulsion. Thus it became essential to address these anomalies and thus the Protection of Women from Domestic Violence Act, 2005 was passed.

Constitutional Perspectives

Domestic violence was recognised as a specific criminal offence in 1983 by amendments in the Indian Penal Code, but was not very effective in controlling the violence committed against the woman within the family or inside the household, therefore, the legislature enacted the Protection of Women from Domestic Violence Act, 2005 to protect women from domestic terrorism.

The enactment in question was passed by the Parliament with recourse to Article 253 of the Constitution. This provision confers on the Parliament the power to make laws in pursuance of international treaties, conventions, etc. The Domestic Violence Act was passed in furtherance of the recommendations of the United Nations Committee (CEDAW). The Act encompasses all the provisions of the Specific Recommendations which form a part of General Recommendation No. 19, 1992. The Protection of Women from Domestic Violence Act, 2005 received the assent of the President on 13-9-2005 and was published in the Gazette of India, Ext., II, S.1, dated 14-9-2005.

Overview of the Domestic Violence Act

The Act not only covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption but even the relationships with family members living together as a joint family. Even those women who are sisters, widows, mothers, single women, or living in any other relationship with the abuser are entitled to legal protection under the said Act.

The Domestic Violence Act entitles the aggrieved person to file an Application under the Domestic Violence Act even for acts which have been committed, prior to the commencement of the Domestic Violence Act. Thus the Act applies retrospectively. This has been clarified by the Supreme Court in the case of V.D. Bhanot vs. Savita Bhanot Supreme Court (2012) 3 SCC 183 which upholds Delhi High Court view that –

“even a wife who had shared a household before the Act came into force would be entitled to the protection of the Act. While looking into a complaint under S. 12, the conduct of the parties even prior to the coming into force of the Act can be taken into consideration.”

Filing of Complaint under Domestic Violence Act

Important concepts of the Act

Sec. 2(a) “Aggrieved person” means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the Respondent;

Under this Act, any aggrieved person [section 2(a) of the Act defines ‘aggrieved person’ as any woman who is, or has been in a domestic relationship with the perpetrator and alleges to be subjected to any act of domestic violence by the perpetrator] or any other person who has a reason to believe that an act of domestic violence has been, or is being, or is likely to be committed can approach a police officer, protection officer or a service provider. The concerned authority will take the complaint from the victim or will write for her. Complaint can be written in the prescribed format or can use her own words and language. Complaint can be made orally or in written form. The authority will also make a DIR (Domestic Incident Report) and will forward the copies to Magistrate, Police and the Service Providers. One can also directly file a complaint with the Magistrate.

Since the Act covers women who are in live in relationships the Supreme Court has further widened the definition of a Wife for the purpose of maintenance payable to such a woman. In normal cases where a man is in a relationship with a woman in the nature of a marriage in spite of having a wife, the Courts have held that the provision of the DVA Act would come to the rescue of such women.

In the case of Chanmuniya vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr. (2010) the Supreme Court has held that where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay maintenance if he deserts her — Man should not be allowed to benefit from legal loopholes by enjoying advantages of a de facto marriage without undertaking duties and obligations – Expansive interpretation should be given to term wife to include even those cases where a man and woman had been living together as husband and wife for a reasonably long period of time — Strict proof of marriage should not be a pre-condition for maintenance under Section 125 of Cr. P.C., so as to fulfil true spirit and essence of beneficial provision of maintenance under Section 125.

However in the below mentioned case, the Apex Court has defined two kinds of relationships as live in relationships. 1) Live in relationship in the nature of marriage and 2) Live in relationship of any other kind. Live in like a wife, and not a mistress, would enable a woman to get benefits under the said Act.

In D. Velusamy vs. D. Patchaimmal (2010) 10 SCC 469

The Court had occasion to consider the provisions of Section 2(f) of the DV Act to come to the conclusion that a “relationship in the nature of marriage” is akin to a common law marriage which requires, in addition to proof of the fact that parties had lived together in a shared household as defined in Section 2(s) of the DV Act, the following conditions to be satisfied:

1. The couple must hold themselves out to society as being akin to spouses.
2. They must be of legal age to marry.
3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.
4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

“In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage”.

It was in this judgment that the word "palimony" was first used which was an expression first used in USA. It means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony.

The Bombay High Court in the famous case of Anita Advani (Rajesh Khannas live in partner) by its Order dated 9th April 2015 has observed and applied the above-mentioned principles in the Veluswamy case herein and held that Anita Advani was unable to show that she had a relationship in the nature of marriage with Rajesh Khanna (deceased). Furthermore the Court held that since the Complainant never resided with the Respondents i.e. Dimple Khanna, Twinkle Khanna in a shared household, there was no domestic relationship existing amongst them. The Court has further clarified, that had the deceased been alive and such a Complaint was filed against him and his relatives (Respondents herein), then there could have been a cause for the Complainant to file a Complaint under Section 12 of the Act. Accordingly the proceedings initiated by Ms Advani were quashed.

Sec. 2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

Domestic relationship between same sex partners (Gay and Lesbians): The said Act does not recognise such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), The Domestic Violence Act, 1998 (South Africa), The Domestic Violence, Crime and Victims Act, 2004 (U.K.), have recognised the relationship between the same sex couples and have brought these relationships into the definition of Domestic relationship.

However section 2(f) of the said Act, though uses the expression "two persons", the expression "aggrieved person" under Section 2(a) takes in only "woman", hence, the Act does not recognise the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the DV Act. Section 2(q) “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in a nature of a marriage may also file a complaint against a relative of the husband or the male partner;

The definition of the term Respondent saw a spate of litigations where it was contended that since the definition of Respondent included an ‘adult male person’, therefore any complaint filed against a woman is not maintainable. In several cases, proceedings were dropped against Respondents who were female relatives of the male. However the definition of‘ Respondent’ was read with the Proviso to give a logical meaning to the definition of Respondent by the Supreme Court in the case of Sandhya Wankhede vs. Manoj Bhimrao Wankhede (2011) 3 SCC 650. The Supreme Court has held that the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore complaints are not just maintainable against the adult male person but also the female relatives of such adult male.

Similarly the Hon’ble High Court of Bombay has also held in Archana Hemant Naik vs. Urmilaben I. Naik and Anr. Reported in 2009(3) Bom.C. R. (Cri) 851 that

“Aggrieved wife or female to whom the proviso to section 2(q) is applicable, can file complaint against relative of husband or relative of her male partner. Proviso refers to relative and not to male relative. Legislature contemplated, residence order under section 19(1) could be passed even against any female who is relative of husband or relative of male partner.”

The Supreme Court in its judgment of Ashish Dixit vs. State of UP & Anr in 2013 has held that a wife cannot implicate one and all in a Domestic violence case. Apart from arraying the husband and in-laws in the Complaint, the Complainant had included all and sundry as parties to the case, of which the Complainant did not even know names of. The Court had accordingly quashed the proceedings against such parties.

Section 2(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or aggrieved person has any right, title or interest in the shared household.

In its first judgment (S.P. Batra and Anr. vs. T. Batra) on the Protection of Women from Domestic Violence Act, 2005, the Supreme Court has said, section 2(s) of the Act which gives right of residence to a married woman in a shared household is not properly worded and appears to be the result of clumsy drafting, but “we have to give it an interpretation which is sensible and which does not lead to chaos in society.” A Bench, comprising Justices S. B. Sinha and Markandey Katju, ruled that “as regards section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.” The Apex Court further said, “the property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which he is a member. It is the exclusive property of appellant number two, mother of Amit Batra. Hence it cannot be called a shared household.”

Justice Katju further added, “We are of the opinion that the house in question cannot be said to be a shared household within the meaning of section 2(s) of the Act. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past, that property becomes a shared household. Such a view would lead to chaos and would be absurd.” Therefore the daughter-in-law can seek no reliefs for a shared household where the house exclusively belongs to the mother-in-law or the father-in-law.

The above judgment was relied upon recently by the Delhi High Court in the case of Sudha Mishra vs. Surya Mishra in July 2014. In fact the Court has further held that even a son or a daughter cannot insist to reside in the self acquired property belonging to their parents, against their consent and wishes. The Court has held:

“Daughter-in-law cannot assert her rights, if any, in the property of her parents-in-law wherein her husband has no right, title or interest. She cannot continue to live in such a house of her parents-in-law against their consent and wishes. In my view, even an adult son or daughter has no legal right to occupy the self acquired property of the parents; against their consent and wishes. A son or daughter if permitted to live in the house occupies the same as a gratuitous licensee and if such licence is revoked, he has to vacate the said property.”

In Vimalben Ajitbhai Patel vs. Vatslabeen Ashokbhai Patel and Ors 2008 4 SCC 649 it was held that when it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoptions and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother-in-law can neither be subject matter of attachment nor during life time of husband his personal liability to maintain his wife can be directed to be enforced against such property. Decree if any must be against her husband or his properties but not of her mother-in-law. Therefore property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband.

Definition of ‘Domestic Violence’ and Types of Domestic Violence

Section 3 of the Act says any act/conduct/omission/commission that harms or injures or has the potential to harm or injure will be considered ‘domestic violence’.

Under this, the law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of the same.

Therefore even a single act of commission or omission may constitute domestic violence — in other words women do not have to suffer a prolonged period of abuse before taking recourse to the law. The broad definition of Domestic violence encompasses all types of violence within its ambit.

Types of Domestic Violence

Physical Abuse

Physical abuse is the use of physical force against a woman in a way that causes her bodily injury or hurt. Physical assault, criminal intimidation and criminal force are also forms of physical abuse like beating, kicking and punching, throwing objects, damaging property, punched walls, kicked doors, abandoning her in a dangerous or unfamiliar place, using a weapon to threaten or hurt her, forcing her to leave the matrimonial home, hurting her children, using physical force in sexual situations.

Sexual Abuse

Sexual abuse is also a form of physical abuse. Any situation in which a woman is forced to participate in unwanted, safe or degrading sexual activity, calling her sexual names, hurting a woman with objects and weapons during sex, is sexual abuse. Forced sex, even by spouse or intimate partner with whom she has consensual sex, is an act of aggression and violence.

Emotional Abuse

Not all abusive relationships involve violence. Many women suffer from emotional abuse, which is no less destructive. Unfortunately, emotional abuse is often minimised or overlooked— even by the woman being abused. Emotional abuse includes verbal abuse such as yelling, name-calling, blaming and shaming. Isolation, intimidation and controlling behaviour also fall under emotional abuse. Calls her names, insults her or continually criticises her.

Economic Abuse

Economic abuse is not a very recognised form of abuse among the women but it is very detrimental. Economic abuse mainly includes a woman not been provided with enough money by her partner to maintain herself and her children, which may comprise money for food, clothing, medicines, etc. and not allowing a woman to take up an employment. Forcing her out of the house where she lives and not providing her rent, in case of a rented share hold also amounts to abuse. Depriving her of all or any economic or financial resources to which the person is entitled under the law or custom, restricting the woman’s access to the shared household. Disposing or alienating the assets of the women whether movable or immovable, valuables, shares, securities, bonds and the like other property in which she may have an interest. However seeking maintenance to unjustly enrich one’s self and that too without proving the alleged act of domestic violence is a gross abuse of the process of law.

Most significantly as stated in the aforementioned paras, the Act gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of domestic relationship under Section 2(f) of the Act.

Maintenance of mother

In the case of Ganesh S/o Rajendra Kapratwar, Abhijeet S/o Ganeshrao Kapratwar and Parijeet S/o Ganeshrao Kapratwar vs. The State of Maharashtra and Sow. Shantabai W/o Rajendra Kapratwar 2010 (112) BOMLR 1082 the Bombay High Court in an application preferred by the mother for maintenance and medical expenses under the Domestic Violence Act and the Hindu Adoptions and Maintenance Act, 1956 against her son and grandsons has held that:

“Grandsons would have been liable to pay maintenance to grandmother under Section 22(1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not been alive and not capable of paying maintenance.”

Section 12 recourse to the legal remedy

An aggrieved person either personally or through any other person on behalf of the said aggrieved person or a protection officer can make an application to the Magistrate for the various reliefs including resident, protection, monetary and custody as well as for the compensation orders.

To provide speedy remedy to the aggrieved person under the Domestic Violence Act any such application has to be decided by the Magistrate within 3 days from the receipt of the said application.

How does the law ensure that a wife who takes legal recourse in the event is not intimidated or harassed?

Sections 17 and 18 of the Domestic Violence Act provides an important aspect of which aims to ensure that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife’s continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.

Section 17 of the law, which gives all married women or female partners in a domestic relationship the right to reside in a home that is known in legal terms as the shared household, applies whether or not she has any right, title or beneficial interest in the same.

The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner. However as mentioned in the aforementioned paras while defining ‘shared household’ a woman has no right of residence in a house belonging to her mother-in-law and/or father-in-law.

The law, significantly, recognises the need of the abused woman for emergency relief, which will have to be provided by the husband. A woman cannot be stopped from making a complaint/application alleging domestic violence. She has the right to the services and assistance of the Protection Officer and Service Providers, stipulated under the provisions of the law.

A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.

Section 18 allows the magistrate to protect the woman from acts of violence or even “acts that are likely to take place” in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of work or any other place that the abused women frequents….

If a husband violates any of the above rights of the aggrieved woman, it will be deemed a punishable offence. Charges under Section 498A can be framed by the magistrate, in addition to the charges under this Act.

Section 20 further empowers the Magistrate to pass order for monetary reliefs to the aggrieved person from respondent to meet the expenses incurred and losses suffered and further the maintenance of the aggrieved person and her children including maintenance consistent with the standard of living to which the aggrieved person is accustomed under, or in addition, to section 125 of the Criminal Procedure Code, 1973 or any other law for the time being in force. However Justice Tahaliyani of the Bombay High Court (Nagpur bench ) in the case of Koushik Gharami vs. Sangeeta Gharami (2014) has held that no monetary relief can be granted under section 20 of the Act, unless domestic violence alleged in the Complaint is proved.

“In my considered opinion, the learned Magistrate had committed an error in granting monetary relief to respondent Nos. 2 and 3 despite the fact that domestic violence could not be established. Though it is possible to say that the maintenance was permissible for respondent Nos. 2 and 3 (minor children) under Section 125 of the Code of Criminal Procedure, the monetary reliefs could not have been given to them under Section 20 of the Protection of Women from Domestic Violence Act, 2005. The view taken by the learned Magistrate and the appellate Court, in my opinion, is not correct…..”

The Courts have clearly chalked out the difference between the provisions of Section 125 of the CrPC and the provisions of maintenance under the Domestic Violence Act. “The purpose and object of Domestic Violence and provision under Section 125 Cr. P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr. P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr. P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner.” – Delhi High Court in case of Harbanslal Malik vs. Payal Malik.

Section 21 clause lays down that the Magistrate at any stage of hearing of the application can grant temporary custody of any child to the aggrieved person or to the person making an application on her behalf and specify the arrangements for visit of such child by the respondent. However the Magistrate may even refuse to allow the respondents such visits if in his opinion such visits may be harmful to the interest of the child.

Section 22 says that in addition to the monetary reliefs as stated in Section 20, the aggrieved person can also demand compensation or damages, both from the respondent for the injuries including mental torture and emotional distress caused to her due to the domestic violence by the respondent.

Section 23 empowers the Magistrate to pass ad interim reliefs to the aggrieved person, the Magistrate can also pass ex-parte reliefs, if prima facie there is apprehension of the respondents committing any act of domestic violence on the aggrieved person. Under the said provision the Magistrate has the vested powers to grant any and as many reliefs as contemplated in sections 17 to 22.

Section 29: There is also provision for the aggrieved person, if not satisfied by the order passed by the Magistrate to approach the higher court by way of an appeal under section 29. The aggrieved person can file an appeal for enhancement of the monetary reliefs as well as for other reliefs, which the magistrate refused or ignored to grant to the aggrieved person.

Section 31: The penalty for breach of protection order by the respondent is also very stringent, which may put the respondent in jail for not only disobeying the protection order or an interim protection order for a term which may extend up to one years or with fine which may extend to ₹ 20,000/- or with both.

Section 32: The Act has made the offence under section 31 a cognisable and non-bailable offence and the respondent can be put behind bars for the said breach upon the sole testimony of the aggrieved person.

Functionaries Appointed Under the Domestic Violence Act

• Protection Officer – An officer appointed by the State in each district (possibly a woman). These officers are under the jurisdiction of Court and have specific duties of providing assistance in medical aid, legal aid, safe shelter to the victim and to the Court in preparing the petition filed in Magistrate’s office, called DIR. It is their duty to provide necessary information to the aggrieved on Service Providers and to ensure compliance with orders of monetary relief.
• Service Provider – Any registered voluntary association with the objective of protecting the rights and interests of women by lawful means including providing of legal aid, medical or financial or other assistance and registered with the State Government as well as a service provider for the purposes of this Act. It is their duty to approach and advise the victim of her rights under the law and assist her in taking appropriate actions.
• Magistrate – A Court of First Class Magistrate or Metropolitan Magistrate would be the competent court and will be responsible for appointing counsellors and welfare expert for the victim.
• Police

Domestic Incident Report (D.I.R.)

Domestic Incident Report is a document that contains the details of the aggrieved person and the respondent (perpetrator) and their relationship. It also includes information regarding aggrieved’s children and their residence, specific details regarding the incidents of domestic violence, types of orders required under the Act and requirement of any assistance including medical facilities, shelter home, etc.