PWDVA Flashcards
I. SCOPE OF THE ACT
The scope of the Protection of Women from Domestic Violence Act, 2005 has been extensively interpreted through various judgments by the High Courts and the Supreme Court of India. In the case of Bhartiben Bipinbhai Tamboli v. State of Gujarat (2018), the Gujarat High Court remarked that domestic violence is a rampant, yet severely underreported issue in India. Women often suffer violence in different forms almost daily, but due to societal expectations and stigma, they rarely report these incidents.
Traditionally, women have been conditioned to be subservient to men and even male relatives, resulting in a lifetime of silent endurance across different stages of life, whether as daughters, sisters, wives, mothers, or single women. Before 2005, the legal remedies for victims were limited mainly to filing for divorce through civil courts or initiating criminal proceedings under Section 498A of the Indian Penal Code.
Neither option offered immediate emergency relief or addressed relationships outside formal marriage, leaving most women trapped in cycles of violence out of compulsion rather than choice. Recognising these serious gaps, the Parliament enacted the Domestic Violence Act, aiming to provide women with immediate, effective protection and not merely limited legal recourse. The definition of an aggrieved person under the Act is purposefully broad, extending protection even to women in live-in relationships, demonstrating its progressive nature and wide applicability.
II. AIMS AND OBJECTIVES OF THE ACT
The primary aim of the Protection of Women from Domestic Violence Act, 2005, is to provide a more effective protection of the constitutional rights of women and shield them from violence occurring within the family environment. It seeks to create a legal framework where women suffering from domestic violence have access to civil remedies, allowing enforcement of their rights such as the right to residence, maintenance, custody of children, protection from further violence, and compensation for injuries suffered. The legislative intent was clearly emphasised by the Supreme Court in the case of Indra Sarma v. V.K.V Sarma (2013), where it was stated that the Act was enacted to offer civil remedies and to prevent the occurrence of domestic violence in society.
The Act’s objective also aligns with international commitments. The Madras High Court in Vandhana v. T. Srikanth (2007) observed that the Act was formulated to implement Recommendation No. 12 of the United Nations Committee on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993. Furthermore, the Bombay High Court, in Ishpal Singh Kahai v. Ramanjeet Kahai (2011), reiterated that the purpose of the Act is to grant statutory protection to victims of violence within the domestic sphere, irrespective of their proprietary rights over their residence. It recognises the need to secure a woman’s right to live in a violence-free home and aims to prevent the recurrence of acts of domestic abuse.
Through its civil remedies and emphasis on immediate relief and protection, the Act marks a significant step toward empowering women against domestic violence and upholding their dignity and constitutional rights.
III. DEFINITION OF DOMESTIC VIOLENCE
Section 3 defines domestic violence comprehensively and inclusively. It is not confined to physical violence alone but extends to mental, emotional, sexual, verbal, and economic abuse. According to this section, domestic violence includes any act, omission, or conduct that harms or injures or has the potential to harm the health, safety, life, limb, or well-being of the aggrieved person. This includes both physical and mental harm. The section makes it clear that even conduct that may not involve physical assault but causes distress, fear, or a sense of powerlessness falls within the definition. It also includes coercive conduct aimed at forcing the woman to lead an immoral life or any act causing mental trauma and economic deprivation. However, the Act provides a safeguard that if the respondent’s actions were reasonable for the protection of themselves or others, or to safeguard property, they may not be held liable.
[i] TYPES OF ABUSES UNDER THE DOMESTIC VIOLENCE ACT
Section 3, read with Explanation I, elaborates the different categories of abuse recognised under the Act:
Physical Abuse refers to any act that causes bodily pain, injury, or endangers life, limb, or health. It includes assault, criminal intimidation, and use of criminal force. The scope of physical abuse also covers acts that impair the health or development of the woman.
Sexual Abuse is defined as any behaviour of a sexual nature that violates the dignity of a woman. This includes acts that are abusive, degrading, humiliating, or coercive in a sexual context.
Verbal and Emotional Abuse includes continuous insults, ridicule, humiliation, and name-calling, particularly targeting the woman’s reproductive role, such as her inability to bear a child or preference for a male child. It also includes threats to harm people close to her, which may create emotional fear and dependency.
Economic Abuse is a broad category under the Act. It refers to depriving the aggrieved woman of financial or economic resources she is entitled to, including money for household needs, maintenance, stridhan, jointly or separately owned property, and access to the shared household. It also includes unauthorised disposal or alienation of household effects and restriction of access to resources or services that she is entitled to use by virtue of her domestic relationship.
[i] WHO CAN BE A COMPLAINANT UNDER THE ACT?
Under the Protection of Women from Domestic Violence Act, 2005, a complainant is primarily any woman who is, or has been, in a domestic relationship with the respondent and who alleges that she has been subjected to domestic violence. This is defined under Section 2(a) of the Act. Apart from the aggrieved woman herself, the Act also empowers a Police Officer, a Protection Officer, or a service provider to file a complaint on her behalf. Additionally, any person who has reason to believe that an act of domestic violence has been, is being, or is likely to be committed can provide information to the concerned Protection Officer. This broadens the scope for intervention and ensures that instances of domestic violence are not left unreported due to fear, coercion, or social pressures. Protection is extended not only to wives but also to sisters, widows, mothers, and any female relatives living in a joint family setup or shared household.
The term aggrieved person, as defined in Section 2(a), encompasses any woman who has been subjected to domestic violence and shares, or has shared, a domestic relationship with the respondent. This includes relationships based on consanguinity, marriage, relationships in the nature of marriage, or adoption. An important judicial extension of this definition covers women in live-in relationships, provided certain conditions are satisfied. In the landmark case of D. Veluswamy v. D. Patchaiammal, the Supreme Court conferred a wider meaning to the term “aggrieved person” by holding that certain live-in relationships could also qualify as a “relationship in the nature of marriage” for the purposes of seeking relief under the Domestic Violence Act. The Court enumerated five essential conditions that must be fulfilled for a live-in relationship to be treated as equivalent to marriage under the Act:
- Both parties must behave as husband and wife and must be recognised as such in society.
- They must both be of a valid legal age for marriage.
- They must be otherwise qualified to enter into a valid marriage, meaning that neither party should have a living spouse at the time of entering into the relationship.
- They must have voluntarily cohabited for a significant period of time.
- They must have lived together in a shared household.
The Supreme Court further clarified that not all live-in relationships would automatically amount to a relationship in the nature of marriage. It is necessary that the above conditions are satisfied and that sufficient evidence is presented to prove the existence of such a relationship. Simply cohabiting without fulfilling these essential criteria would not entitle a woman to seek protection under the Act.
Importantly, the Court distinguished relationships based merely on financial arrangements or sexual convenience. It observed that if a man maintains a woman primarily for sexual purposes or financial service—commonly referred to as a “keep”—such a relationship would not qualify as a relationship in the nature of marriage under the Act. In this context, the Court also referred to the American concept of “palimony,” first recognised in Marvin v. Marvin (1976), where maintenance could be awarded to a woman who had cohabited with a man for a considerable time without formal marriage and was later deserted. However, in India, palimony as a concept is not directly applicable unless the conditions for recognising a live-in relationship under the Domestic Violence Act are met.
Further clarification on live-in relationships was provided by the Court in Indra Sarma v. V.K.V. Sarma, where it was reiterated that merely living together without fulfilling the essential conditions does not entitle a woman to protection under the Act. Factors like the duration of cohabitation, the shared nature of the household, and societal acceptance are crucial. In Chanmuniya v. Virendra Kumar Singh Kushwaha, the Supreme Court also took a pro-women stance, holding that women deserted after a significant live-in relationship could claim maintenance under Section 125 CrPC, further supporting the broader goal of social justice intended by the Domestic Violence Act.
[ii] RESPONDENT UNDER THE ACT
Under Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, the term “respondent” initially referred to any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person seeks relief under the Act. The proviso to Section 2(q) further clarifies that an aggrieved wife or a woman living in a relationship in the nature of marriage may also file a complaint against the relative of the husband or male partner.
However, the scope of who can be a respondent has evolved significantly through judicial interpretation. In the landmark case of Hiralal P. Harsora v. Kusum Narottamdas Harsora, AIR 2016 SC 4774, the Supreme Court struck down the words “adult male” from Section 2(q), holding them to be unconstitutional and contrary to the object of the Act, which is to afford protection to women from domestic violence of any kind. The Court ruled that the word “respondent” must be read as “any person,” thereby allowing complaints not only against adult males but also against female relatives and even younger persons involved in acts of domestic violence.
Earlier, the interpretation of Section 2(q) had created confusion about whether female relatives of the husband, such as the mother-in-law or sister-in-law, could be made respondents. This was conclusively addressed by the Supreme Court in Sandhya Wankhede v. Manoj Bhimrao Wankhede, (2011) 3 SCC 650, where it was held that the proviso to Section 2(q) does not exclude female relatives from the ambit of the Act. Accordingly, a woman can file a complaint against both male and female relatives of her husband or partner.
Similarly, in Archana Hemant Naik v. Urmilaben I. Naik & Anr., 2009 (3) Bom CR 851, the Bombay High Court reaffirmed that complaints are maintainable against female relatives as well.
At the same time, courts have cautioned against the misuse of the Act. In Ashish Dixit v. State of U.P. & Anr., AIR 2013 SC 1077, the Supreme Court emphasized that a wife cannot implicate “one and all” from the husband’s family without credible allegations or evidence. It held that indiscriminate roping in of distant relatives, without any specific act of domestic violence alleged against them, is an abuse of the process of law.
It is crucial to note that only a person who shares or has shared a domestic relationship with the aggrieved person can be made a respondent under the Act. As defined under Section 2(f), a “domestic relationship” refers to a relationship between two persons who live or have lived together in a shared household, related by consanguinity, marriage, a relationship in the nature of marriage, adoption, or as members of a joint family. Therefore, if there is no domestic relationship between the complainant and the alleged respondent, the complaint under the Domestic Violence Act would not be maintainable.
In conclusion, following the judicial developments, the term “respondent” under the Act includes any person—male or female—who is or has been in a domestic relationship with the aggrieved woman and is alleged to have committed an act of domestic violence.
V. SHARED HOUSEHOLD UNDER THE ACT
The term shared household is defined under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005. It refers to a household where the aggrieved person lives or has lived at any point in a domestic relationship, either alone or with the respondent. It includes a house that is owned or rented jointly by the aggrieved person and the respondent, or owned or rented by either of them individually, where either party has any right, title, interest, or equity. It also covers a household belonging to the joint family of which the respondent is a member, regardless of ownership rights of the aggrieved person.
In S.R. Batra & Another v. Smt. Taruna Batra, the Supreme Court clarified that a shared household under Section 17(1) means a house owned or rented by the husband or a joint family house where the husband is a member. The Court held that a wife cannot claim a right to reside in the property exclusively owned by her husband’s relatives (such as his mother), where the husband has no ownership or tenancy rights. The Court also noted that the definition of shared household is not very precisely worded and must be interpreted sensibly.
[i] PROTECTION ORDERS
A protection order is issued under Section 18 of the Domestic Violence Act to protect the aggrieved woman from further harm. This order prohibits the respondent (the person accused of domestic violence) from engaging in any act of domestic violence, either directly or indirectly. The order includes prohibiting the respondent from contacting, meeting, or communicating with the aggrieved person, whether through personal, telephonic, or electronic means. Furthermore, the respondent is restrained from alienating any assets, including joint or separately owned property, and from operating bank accounts or lockers.
The protection order also extends to preventing the respondent from causing harm to dependents or anyone who helps the aggrieved person, such as relatives or friends. The court, after hearing both the aggrieved person and the respondent, must be satisfied that a prima facie case of domestic violence exists or is likely to occur. In the V.D. Bhanot vs. Savita Bhanot (2012) case, the Supreme Court clarified that even acts of domestic violence committed prior to the enactment of the Domestic Violence Act can be addressed under the provisions of the Act.
a. EXECUTION OF PROTECTION ORDERS
A protection order issued under Section 18 of the Domestic Violence Act can be enforced by the Magistrate, who may direct the respondent not to interfere with the freedom or well-being of the aggrieved woman. If the respondent violates the protection order, it becomes a criminal offense under Section 31 of the Act. The respondent can face imprisonment for up to one year, a fine up to twenty thousand rupees, or both. In cases of breach, the Magistrate, who passed the protection order, is responsible for trying the case, and charges may be framed under relevant provisions of the Indian Penal Code (IPC), such as Section 498A for cruelty, or under the Dowry Prohibition Act, 1961, if applicable.
[ii] RESIDENCE ORDERS
Under Section 19, the Magistrate has the authority to issue a residence order, which is intended to ensure that the aggrieved woman has a safe and secure place to live, particularly in situations where she may face eviction or harassment from the respondent.
The order may prevent the respondent from dispossessing or disturbing the aggrieved person’s peaceful possession of the shared household. In cases where the respondent has access to the shared household, the court may direct the respondent to vacate the premises and not to enter areas occupied by the aggrieved person. If the aggrieved person is unable to continue living in the shared household due to the respondent’s actions, the Magisthe trate can order the respondent to arrange for alternate accommodation or to financially support the aggrieved person in securing such accommodation.
The residence order may also prevent the respondent from selling or encumbering the shared household. Importantly, no such order can be made against the woman, ensuring that she remains protected and is not forced to leave her home.
a. EXECUTION OF RESIDENCE ORDERS
A residence order, issued under Section 19 of the Domestic Violence Act, can also be enforced by the Magistrate. If the respondent refuses to comply with the order, the Magistrate can direct the local police station’s Station House Officer (SHO) to ensure the protection of the aggrieved person. If the respondent interferes with the woman’s right to the shared household or dispossesses her, it could be considered a breach of the residence order, which may lead to criminal penalties under Section 31. Additionally, the Magistrate may direct the respondent to return any assets or valuable items, such as stridhan (a woman’s personal property or gifts received during marriage), to the aggrieved person. The breach of residence orders can also be treated as a criminal offense, thus making the enforcement mechanism stronger to protect the aggrieved person.
[iii] MONETARY RELIEF
Section 20 provides for monetary relief, which is designed to compensate the aggrieved person for the financial and emotional consequences of domestic violence. The Magistrate can direct the respondent to pay for the following:
- Loss of earnings: This includes compensation for any wages or income the aggrieved person may have lost due to domestic violence or the respondent’s actions.
- Medical expenses: Any medical bills arising from injuries or health issues resulting from domestic violence are to be covered.
- Damage to property: If the respondent has caused harm to the aggrieved person’s property, the court may order compensation for such damage.
- Maintenance for the aggrieved person and children: If the aggrieved person has children, the respondent may be ordered to pay maintenance for their well-being. The maintenance may be in addition to any maintenance ordered under Section 125 of the Criminal Procedure Code (CrPC).
The amount of relief is intended to be reasonable and in line of with the standard of living to which the aggrieved person is accustomed. If the respondent fails to pay the ordered relief, the Magistrate can direct the employer or any debtor of the respondent to directly pay the aggrieved person or deposit the amount in the court. The order may also include a lump sum payment if necessary.
a. EXECUTION OF MONETARY RELIEF/MAINTENANCE ORDERS
Monetary relief under Section 20 of the Domestic Violence Act includes compensation for medical expenses, loss of earnings, and property damage, among other costs. When the respondent fails to pay the ordered amount, the Magistrate can direct the employer or any debtor of the respondent to pay the amount directly to the aggrieved person or deposit it in the court. The same enforcement procedures used under Section 125 of the Criminal Procedure Code (Cr.P.C.) apply to ensure that these monetary relief orders are complied with. If the respondent fails to pay the ordered amount, the Magistrate can seize the respondent’s movable properties or even direct the District Collector to recover the amount as arrears of land revenue, with the possibility of attaching immovable properties if the payment is still not made. In the case of Shalu Ojha vs. Prashant Ojha (2014), the Supreme Court ruled that maintenance orders passed by a Magistrate cannot be stayed by the Sessions Court in an appeal, ensuring that the aggrieved person receives the maintenance without unnecessary delay.
[iv] CUSTODY ORDERS
Section 21 of the Act provides for custody orders for children involved in cases of domestic violence. The Magistrate can grant temporary custody of the children to the aggrieved person if domestic violence has occurred. In addition, the Magistrate can determine visitation arrangements for the respondent, allowing the respondent to visit the children in a manner that does not harm the child’s well-being. If the Magistrate determines that visitation could be detrimental to the child, they may deny the respondent any access. The child’s best interests are the primary concern when deciding these matters. This ensures that the aggrieved person can live without the fear of the respondent influencing or negatively impacting the children’s lives.
a. EXECUTION OF CUSTODY ORDERS
A custody order issued under Section 21 of the Domestic Violence Act can be enforced by the Magistrate, often with the assistance of the police. If the respondent refuses to comply with the custody order and retains the children, the Magistrate may direct the police to recover the children from the respondent’s custody and hand them over to the aggrieved person. This ensures that the custody of the children is given to the woman as ordered, protecting the children’s best interests. The enforcement of custody orders is a crucial aspect of the Domestic Violence Act, as it ensures that the well-being of the children is prioritized and protected from any further harm.
[v] COMPENSATION ORDERS
Section 22 of the Act enables the Magistrate to order the respondent to pay compensation and damages to the aggrieved person. This includes compensation for:
* Physical injuries: Any harm inflicted through violence.
* Mental and emotional distress: The pain, suffering, and emotional harm caused by the acts of domestic violence.
The compensation is aimed at addressing the trauma and harm caused by the respondent’s actions. The order can be made based on an application filed by the aggrieved person, ensuring that she is compensated for both the physical and emotional toll of domestic violence.
VII. PROTECTION OFFICER
Under Section 8 of the DV Act, the Protection Officer is appointed by the State Government as per the provisions of the law. The Protection Officer acts as a facilitator between the aggrieved woman and the court. The Protection Officer aids the aggrieved woman in filing complaints, and applications before the Magistrate to obtain the necessary relief and also assists in obtaining medical aid, legal aid, counselling, safe shelter and other required assistance.
[i] POWERS AND FUNCTIONS OF PROTECTION OFFICERS (SECTION 9)
- To assist the Magistrate in discharging their duties by the Act.
- To make a domestic violence incident report to the Magistrate after receiving any such incident of domestic violence and must also forward the copies to the police officer in charge of the police station having jurisdiction over the incident.
- To make the application in the prescribed order to the Magistrate if the aggrieved person claims relief for issuance of the protective order.
- To make sure that the aggrieved person is provided free legal aid under the Legal Services Authorities Act, 1987.
- To maintain a detailed list of all the service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate.
- To get the victim medically examined, if she has sustained any bodily injuries and forward such a report in the prescribed manner to the Magistrate and the police station having jurisdiction.
- To find a safe available shelter home for the victim if she requires it and send the details of her lodging in the prescribed manner to the Magistrate and the police station having jurisdiction.
- To ensure that the order of monetary relief to the victims is complied with under this Act.
[ii] NILAKANTA MALAKAR V THE STATE OF ASSAM
The domestic violence incident report is not compulsory to pass an ex-parte order. An ex-parte order can be passed by the Magistrate under Section 23 of the Act 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 that there is a likelihood that the respondent may commit an act of domestic violence.
VIII. DUTIES AND FUNCTIONS OF POLICE OFFICERS AND MAGISTRATE
Section 5 of the Protection of Women from Domestic Violence Act, 2005 lays down the duties and functions of police officers and Magistrate. It states that when a police officer, service provider or Magistrate receives a complaint of domestic violence, an incident of domestic violence is reported to him or he is present at the scene of the occurrence of domestic violence then they should take the following steps:
- They are required to inform the victim about her rights to make an application for receiving relief by way of a protection order, order for monetary relief, custody order, residence order, compensation order, etc.
- They should inform the victim of the accessibility of services of the service providers.
- The victim should be informed about the services and duties of the Protection Officers.
- They should also inform the victim about her right to free legal services under the Legal Services Authorities Act, 1987 and her right to file a complaint under Section 498A of the Indian Penal Code, 1860.
[i] SANTOSH BAKSHI V. STATE OF PUNJAB
The Supreme Court emphasised that the Police have to look into the complaint made under the DV Act seriously and it cannot submit a report that no case is made out without proper verification, investigation, and enquiry not only from members of the family but also from neighbours, friends and others.
IX. DUTIES OF SHELTER HOMES AND MEDICAL FACILITIES
If any victim of domestic violence requires a shelter home then under Section 6 of the Act, the person in charge of a shelter home will provide suitable shelter to the victims of domestic violence in the shelter home.
Further Section 7 of the Act lays down that if an aggrieved person requires medical assistance then the person in charge of the medical facility will be providing such assistance to the aggrieved person.
X. POWERS AND FUNCTIONS OF SERVICE PROVIDERS
Section 10 of the Act, lays down the functions and duties of service providers. Service providers are defined under the Act as any voluntary association registered under the Societies Registration Act, 1860 or a company that is registered under the Companies Act, 1956 which aims to protect the rights of women lawfully by providing legal aid, medical, financial or other assistance.
The powers and duties of service providers are mentioned below.
- A ,service provider has the authority to record any incident of domestic violence and forward it to the Magistrate or Protection Officer having jurisdiction where the incident of domestic violence took place.
- The service provider must get the aggrieved persthe on medically examined and forward such a report to the Protection Officer, Magistrate and the police station within the local limits where the domestic violence took place.
- It is also the responsibility of the service providers to provide a shelter home to the victim if they require one and forward the report of lodging of the victim to the police station having jurisdiction.
XI. APPLICATION TO THE MAGISTRATE
The aggrieved person, the Protection Officer of that locality or any other person on behalf of the aggrieved person shall make an application to the Magistrate claiming one or more reliefs under this Protection of Women from Domestic Violence Act, 2005. The application must contain all the necessary details as prescribed by the Act.
The Magistrate will fix the date of hearing which shall not extend more than three days from the date of receiving the application. Furthermore, the Magistrate must also aim to dispose of all the applications made under Section 12 of the Act within a period of sixty days from the date of its first hearing. Moreover, the Protection of Women from Domestic Violence Act, 2005 authorises the Magistrate to grant the following orders and reliefs.
