"Real Men don't Hit Women". This quote is music to the ears of most. However unfortunately the reality is quite different. In India there are several legislations for protection of women. Section 125 of the Criminal Procedure Code provides for maintenance of a destitute wife. Section 498 A of IPC is related to mental cruelty inflicted on women by their husbands and in laws. Section 304 B of IPC deals with cases relating to dowry deaths. The Dowry Prohibition Act 1961 was enacted to deal with cases of dowry demands by the husband and his family members. The Hindu Adoption and Maintenance Act, 1956 provides for grant of maintenance to a legally Hindu wife and also deals with rules for adoption. Then why have another Legislation for Protection of Women? The uniqueness of this legislation is that for the first time the Parliament recognized a "relationship in the nature of marriage" and not a live in relationship simpliciter. The Domestic Violence Act deals with five categories of relationships who live or have lived together in a shared household when they are related by a) Consanguinity b) Marriage c) A relationship in the nature of Marriage d) Adoption and e) Family members living together as a Joint family.

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, whose sole intention is to protect women irrespective of the relationship she shares with the accused.

However just as every piece of legislation has its advantages, many women have unfortunately misused the provisions of this Act to drag, 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. 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.

Why a legislation for domestic violence?

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. Therefore the Domestic Violence Act provides for certain immediate remedies to the aggrieved woman.

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

All 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 elucidates 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 a relationships in the nature of marriage the Supreme Court has further widened the definition of a Wife for the purpose of maintenance payable to such a woman.

In the case of Chanmuniya vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr. 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.PC., so as to fulfil true spirit and essence of beneficial provision of maintenance under Section 125.

Interestingly even prior to enactment of the DVA Act, the Courts have in some landmark judgments recognized the rights of a party in a live in relationship.

Badri Prasad vs. Dy. Director of Consolidation, 1978 (3) Scc 527 (1^st August 1978)

This was the first case in which the Supreme Court of India recognised live-in relationship and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year live-in relationship of a couple. It was held by Justice Krishna Iyer that a strong presumption arises in favour of wedlock where the partners have lived together for a long term as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin.

Tulsa & Ors. vs. Durghatiya & Ors. 2008

The Supreme Court provided legal status to the children born from live-in relationship. It was held that one of the crucial pre-conditions for a child born from live-in relationship to not be treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognise them as husband and wife and it must not be a "walk in and walk out" relationship. Therefore, the court also granted the right to property to a child born out of a live in relationship.

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”.

Here, the court relied on the concept of ‘palimony’ which was used in the USA for grant of maintenance in live in relationships. The concept of palimony was derived in the case of Marvin vs. Marvin, a landmark judgment of the California Superior Court.

S. Khushboo vs. Kanniammal & Anr. 2010

The Supreme Court in this case dropped all the charges against the petitioner who was a south Indian actress. She was accused for endorsing pre-marital sex and live in relationships. The court held that living together is not illegal in the eyes of law even if it is considered immoral in the eyes of the conservative Indian society. The court stated that living together is a right to life and therefore not illegal.

Indra Sarma vs. V.K.V.Sarma, 2013

The difference between a “live in relationship“ and “a relationship in the nature of marriage" was dealt with in great detail by the Apex Court in this judgment.

The judgment illustrated five categories where the concept of live in relationships can be considered and proved in the court of law. Following are the categories:

1. Domestic relationship between an adult male and an adult female, both unmarried. It is the most uncomplicated sort of relationship

2. Domestic relationship between a married man and an adult unmarried woman, entered knowingly.

3. Domestic relationship between an adult unmarried man and a married woman, entered knowingly. Such relationship can lead to a conviction under Indian Penal Code for the crime of adultery

4. Domestic relationship between an unmarried adult female and a married male, entered unknowingly

5. Domestic relationship between same sex partners (gay or lesbian)

Anita Advani (Rajesh Khanna's live in partner)

The above guidelines were considered in the famous case of Anita Advani who was living in with actor Rajesh Khanna. The Bombay High Court by its Order dated 9^th April 2015 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. 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 recognize the relationship of same sex (gay or lesbian).

Sec. 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;

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.

Sec. 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 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.” 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 Sudhir 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 license is revoked, he has to vacate the said property.”

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.

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.

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.

Emotional Abuse

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.

Economic Abuse

Emotional abuse mainly includes a woman not been provided with enough money by her partner to maintain herself and her children, which may comprise of 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.

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. For speedy remedy to the aggrieved person , any such application has to be decided by the Magistrate within 30 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.

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.

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. Further, the offences are cognisable and non-bailable. Punishment for violation of the rights enumerated above could extend to one year’s imprisonment and/or a maximum fine of ₹ 20,000.

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 has held that no monetary relief can be granted under section 20 of the Act ,unless domestic violence alleged in the Complaint is proved.

The Courts have clearly chalked out the difference between the provisions of Section 125 of the Cr. P.C. 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.

Once we consider Section 20(1)(d) of the DV Act, the conclusion would be that an aggrieved person is entitled to claim maintenance under this section in addition to her maintenance right under any other law for the time being in force,"

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.

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.

• 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.

• 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.