Purpose of the DV Act
The Protection of Women from Domestic Violence Act, 2005 (DV Act) provides a range of remedies in the civil law, to protect women from domestic violence in different forms and prevent its occurrence in future.
The orders issued by the Magistrate under the act are of the civil nature. But when the order of the Magistrate is violated, it will turn into a criminal offence and the court will follow the Criminal Procedure Code (CrPC) to enforce the order. Therefore, it can be called as a hybrid act with civil rights, criminal procedure, and criminal execution, all combined into one.
The rules of procedure under the act
The Protection of Women from Domestic Violence Rules, 2006 (DV Rules) enacted under the DV Act prescribe the forms and procedural matters relating to filing of application by an aggrieved person.
What domestic violence is
The Section 3 of the DV Act elaborates what domestic violence is. It is a broad term encompassing all forms of violence and reliefs into a single whole in one law.
The term domestic violence includes physical abuse, sexual abuse, verbal or emotional abuse and economic abuse, harassment for dowry, mental or physical injuries, or harm or verbal abuse such as insult, individual humiliation etc, deprivation of financial sources, alienation of household assets the aggrieved person is entitled to use, prohibition in use of resources or facilities and causing harm or harassment or threatening in relation to any of such matters.
Anyone can inform the Protection Officer/ Police
Anyone who comes to know about an act of domestic violence can inform about the incident to the concerned Protection Officer.
The Protection Officer in turn can make a Domestic Violence Report and forward it to the Magistrate, Police Officer & to the Service Providers under the act. The officer should ensure legal aid from the Legal Service Authority to the aggrieved person, make available safe shelter home to her, and get her necessary medical assistance.
The act enables the state to register Service providers such as Voluntary Organisations or Companies to assist aggrieved women in the form of first aid, legal aid, medical aid, police assistance, counselling, support of welfare experts, rehabilitation, etc.
A person, knowing about any incidence of domestic violence, can inform the Police, if it amounts to a cognisable case. The police officer who gets the information has a duty to proceed in accordance with law if it is a cognisable offence.
The person can, on behalf of the aggrieved person, file a complaint to the Magistrate under the act.
Aggrieved person must have domestic relationship
An aggrieved person in a domestic violence case must be a woman. She must be or has been in domestic relationship with the respondent and alleges to have been subjected to domestic violence by the respondent. The term is wide enough to cover every woman in some form of domestic relationship, including live-in relationship.
The domestic relationship is the relationship between two persons who live or have lived in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, (commonly known as live-in relationship) or in a joint family as its members.
The shared household is the household, including that of the joint family or a rented house, in which the aggrieved person lives or has lived with the respondent at any stage in a domestic relationship with some permanency, irrespective of either of them having any right, title, interest or equity in it.
A victim can seek reliefs u/s 12 of the DV Act
Any woman, being a victim of domestic violence or alleges to have been subjected to any such act of domestic violence, can present an application to the Magistrate seeking appropriate reliefs under the act, under Section 12 of the DV Act.
The application shall be in Form II accompanied by an affidavit in Form III provided in the DV Rules. The Protection Officer or a person on behalf of the aggrieved woman can also file such an application.
The aggrieved woman shall have the right to reside for the time being in the shared household, despite having no title or beneficial interest in that house. She can be evicted from the shared household only through legal procedures.
The court where a woman should file the application
An application under DV Act can be filed by or on behalf of the victim of domestic violence in the court of First-Class Magistrate within the local limits, within which: –
- The aggrieved person resides, does business, or employed
- The respondent resides or does business, or employed
- the cause of action arose
Protection Officer should inform the victim her rights
The Protection Officer, under Section 8 (1)(ii) of the DV Rules, shall provide the victim all information on her rights as an aggrieved person under the act in Form IV included in the rules.
The Form enlists her right to receive protection and assistance in physical violence such as beating, biting etc, sexual violence such as forced sexual intercourse, verbal violence such as insults, name calling, economic violence such as not providing money for maintenance, and her right to get protection orders including special order directing the respondent to stay away from home, order for interim monetary relief, and other reliefs such as gaining jewellery, getting medical assistance, restraining order from committing domestic violence, to get compensation for physical and mental injuries, etc based on Domestic Incident Report.
Service of summons
On filing of an application, the Magistrate shall send a notice of the date of hearing to all persons connected through Protection Officer within two days or such further reasonable time, under Section 13 of the DV Act. The Magistrate cannot treat the respondents as accused under Section 61 of the CrPC.
The Section 13 notice, under the DV Act, is intended to require the respondents to attend the court to receive and obey the decision or directions under Section 18 to be issued by the Magistrate. If the orders are violated then such violations will be treated as offences of criminal nature.
The Magistrate shall fix the first hearing within three days of the receipt of the information, if possible.
Range of orders a Magistrate can issue
The Magistrate, while considering the application for protection from domestic violence, can direct the respondent or the aggrieved person to undergo counselling with any Service Provider, having enough experience in counselling.
The Magistrate can issue prohibition orders for protection, residence orders, monetary relief order, custody orders, compensation orders etc.
Issue of protection orders u/s 18
The Magistrate, after hearing the aggrieved person and the respondent, finds that domestic violence has taken place, he can issue a protection order prohibiting the respondent from committing any act of domestic violence, aiding or abetting it, attempting to communicate with the aggrieved person, alienating any assets or cause any violence to any person dependent, relative or assisting the aggrieved woman, under Section 18 of the DV Act.
A breach of such a protection order by the respondent is an offence punishable with imprisonment for a term extendable to one year or with fine.
If an order issued under Section 18 of the DV Act is violated by the respondent, then such violations will be treated as offences of criminal nature. The revision against such orders under Section 29 shall lie to the Sessions Court, under Section 397(1) CrPC and to the High Court under Section 401 CrPC.
Residence order u/s 19
While disposing an application of domestic violence, the Magistrate, under Section 19 of the DV Act, can issue residence order, not to dispossess the aggrieved person of the shared household, prevent the respondent from entering the household, keep the respondent away from the aggrieved person, restrain the respondent from alienating the shared household or direct the respondent to provide alternate accommodation to the aggrieved applicant.
But a female respondent cannot be prohibited from living in the shared household.
Monetary relief u/s 20
The Magistrate, under Section 20 of the DV Act, can direct the respondent to pay monetary relief towards loss of earning, medical expenses, and destruction of properties as a result of domestic violence, and to provide maintenance and under Section 125 of the CrPC as well. Interim maintenance can also be allowed under DV Act. Even a divorcee can get maintenance.
The scope of Section 20 of the DV Act is much wider than that of Section 125 of CrPC. The Section 125 CrPC stipulates only of maintenance but the Section 20 of DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of domestic violence, including loss of medical expenses, loss caused due to destruction, damage, or removal of any property from the control of aggrieved person.
When the court is considering application for maintenance under DV Act the maintenance fixed under Section 125 CrPC by other courts shall also be considered. Monetary relief under Section 20 of the DV Act is in addition to maintenance under Section 125 CrPC.
The monetary relief should be adequate fair and reasonable and the maintenance can be ordered as a lumpsum amount, or on monthly basis, based on the facts of the case.
Custody order u/s 21
The Magistrate, under Section 21 of the DV Act, can grant temporary custody or visitation rights of any child to the aggrieved person.
Compensation order u/s 22
The Magistrate, under Section 22 of the Act, can order to pay compensation and damages for the injuries including mental torture and emotional distress caused by the acts of domestic violence.
Interim orders u/s 23
The Magistrate, under Section 23 of the DV Act, can pass interim and ex party orders based on affidavit regarding protection, residence, monetary relief, custody, and compensation.
No bar in continuing other cases
There is no bar for the aggrieved woman in seeking any relief from any other courts regarding protection, residence, monetary relief, custody matter, or compensation being dealt with in this domestic violence case, under Section 26 of the DV Act.
Criminal procedures to be followed
In regard to filing application, getting protection orders, residence order, monetary relief, custody orders, compensation, interim or ex party orders and enforcement of orders, the procedure prescribed in the CrPC will be applicable.
Appeal to the Court of Session within 30 days
A person aggrieved by any order of the Magistrate under the DV Act may file an appeal to the Court of Session, within 30 days from the date on which the order by the Magistrate is served on the concerned person.
Appeals can lie on the following orders:
- Ex-parte order of Magistrate
- Order of Magistrate issuing notice under Section 12 of DV Act
- Ex-parte order allowing the wife to stay in the shared household
- Order issued in violation of any provision
- Order by which the complaint should not be dispossessed of from shared household
Breach of protection order
When a breach of protection or interim order, the aggrieved person may file a complaint to the protection Officer. The breach of such orders can be reported to the Police and that can be dealt with as a cognizable and non bailable offence, under Sections 31 & 32 of the DV Act.
The punishment for breach of such orders will be for 1 year or with a fine extensible up to 25,000/.
If there is a breach of protection order or an interim order the Magistrate can add offences under 498A of IPC or Dowry Prohibition Act, if the facts of the case indicate so.
Can the proceedings under DV Act be quashed?
The Magistrate Court that deals with the DV Act is only a designated court but not a normal criminal court and the proceedings are of civil nature. In an application under Section 12 of the DV Act, all the reliefs granted are in respect of the civil liability.
Hence the proceedings cannot be quashed under Section 482 of the CrPC. But the High Courts in India are divided in their views on this issue.
But an offence under Section 19 (3), 31(1) or 33 of the DV Act, are clearly criminal in nature and they can be quashed.
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