Domestic Voicelnce MCQ

FOR PRIVATE CIRCULATION ONLY
READING MATERIAL
WORKSHOP
ON
“PROTECTION OF WOMEN FROM
DOMESTIC VIOLENCE”
Date : 18th January, 2015 (Sunday)

Venue : Nyaya Sadan, Doranda, Ranchi
Organised by :
Judicial Academy Jharkhand
&
Jharkhand State Legal Services Authority
Contents
Sl. Page
Contents
No. No.
1 List of Abbreviations 1
Standard Practice Directions for the Effective Implementation of
2 2-16
the PWDVA, 2005
3 Introducing the Protection Officer 17-22
4 How to Interact with the Aggrieved person 23-44
5 How to Record a Domestic Incident Report 45-68
6 How to File an Application in Court 69-88
7 Duties of the Protection Officer During and Post-Litigation 89-106
8 Procedures to be adopted by Protection Officer 107-110
ARTICLE
Concern for the Dead, Condemnation for the Living – by Indira
9 113-120
Jaising
CASE LAWS
Saraswathy Vs. Babu (SC) Whether conduct of the parties before
10 123-130
coming into force of PWDVA, 2005 can be considered
D. Velusamy Vs. D. Patchaiammal (SC) Expression “domestic
11 relationship” includes not only relationship of marriage but also 131-138
relationship in the nature of marriage.
Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad & Anr. (SC)
In absence of declaration annulling first marriage by competent
12 court, women of second marriage entitled to maintain complaint 139-144
against second husband. (In view of highly contentious question
raised by the appellant in this case).
Indra Sarma Vs. V.K.V. Sarma (SC) Whether a “live-in relationship”
13 would amount to a “relationship in the nature of marriage” within 145-168
the definition of “domestic relationship”
Preeti Satija Vs. Smt. Raj Kumari & Anr. (Del. HC) Whether joint
14 family property come within the definition of ‘shared household” 169-180
as defined under section 2(s) of PWDVA, 2005
Kavita Dass Vs. NT of Delhi & Anr. (Del.HC) Court cannot ask the
15 181-186
aggrieved person to vacate the house even though on rent.
Sunil Madan Vs. Mrs. Rachna Madan & Anr. (Del.HC) Scope of
16 187-191
section 12 of PWDVA, 2005
Sl. Page
Contents
No. No.
Rakesh Sachdeva & Ors. Vs. State of Jharkhand (JHC) Alternative
17 accommodation to the victim, of the same level as being enjoyed, 192-197
or rent for the same.
Swarup Mandal Vs. The State of Jharkhand & Anr. (JHC) Grant
18 198-200
of maintenance
Ashok Vardhan Reddy and Ors. Vs. Smt. P. Savitha and Anr.
(Andhra HC) Both, the case under PWDVA, 2005 and other
19 201-213
criminal case are maintainable and cannot be quashed under
section 482 of Cr.P.C.
Sambhu Prasad Singh Vs. Manjari (Del.HC) Magistrate is not
obliged to call for and consider the DIR before issuing notice to the
20 214-224
respondent however if DIR has also been submitted, that should
be considered in view of Section 12(1) of PWDVA, 2005
Compilation of case-laws of the PWDVA – Prepared by Lawyers
21 225-228
Collective Women’s Rights Initiative
WORKSHOP ON “PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE”
List of Abbreviations
CEDAW United Nations Convention on the Elimination of All Forms of
Discrimination against Women, 1979
CMA Christian Marriage Act, 1872
CPC Code of Civil Procedure, 1908
CrPC Code of Criminal Procedure, 1973
DEVAW United Nations Declaration on Violence against Women, 1993
DIR Domestic Incident Report
DMMA Dissolution of Muslim Marriages Act, 1939
DPA Dowry Prohibition Act, 1961
FIR First Information Report
GWA Guardians and Wards Act, 1890
HAMA Hindu Adoption and Maintenance Act, 1956
HMA Hindu Marriages Act, 1955
HMGA Hindu Minority and Guardianship Act, 1956
HSA Hindu Succession Act, 1956
IDA Indian Divorce Act, 1869
IEA Indian Evidence Act, 1872
IPC Indian Penal Code, 1860
LCWRI Lawyers Collective (Women’s Rights Initiative)
MWA Muslim Women (Protection of Rights on Divorce) Act, 1986
NCR Non-Cognisable (Offence) Report
NGO Non-Governmental Organisation
PC & PNDT Act Pre-Conception and Pre-Natal Diagnostic (Prohibition of Sex Selection)
Act, 1994
PCMA Prohibition of Child Marriages Act, 2007
PMDA Parsi Marriage and Divorce Act, 1936
PO Protection Officer
PWDVA Protection of Women from Domestic Violence Act, 2005
PWDVR Protection of Women from Domestic Violence Rules, 2006
SMA Special Marriages Act, 1954
SP Service Provider
1
STANDARD PRACTICE DIRECTIONS FOR THE

EFFECTIVE IMPLEMENTATION OF THE PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
— Prepared by Lawyers Collective Women’s Rights Initiative
Violence against women is a manifestation of historically unequal power relations

between men and women, which have led to domination over and discrimination against
women by men and to the prevention of the full advancement of women, and that violence
against women is one of the crucial social mechanisms by which women are forced into
subordinate position compared with men– Declaration on Elimination of Violence against
Women, 1993
The Protection of Women from Domestic Violence Act, 2005 (herein after referred to
as “the PWDVA”) is an Act to provide for more effective protection of the rights of women
guaranteed under the constitution who are victims of violence of any kind occurring
within the family and for matters connected therewith or incidental thereto.
The key features of PWDVA are as follows:
• clear declaration of the basic intent of the law, namely the prevention of domestic
A
violence
• clear and unambiguous statement of the right of women to be free from domestic
A
violence and the recognition of domestic violence as violation of the human rights of
women.
• definition of domestic violence that captures women’s experience of abuse in its
A
manifold form.
• recognition of a woman rights to reside in the shared household and her protection
A
from illegal dispossession
• ccess to immediate orders to prevent further acts of violence, to provide remedies
A
for violence faced and to prevent destitution of women
• I nfrastructure available to women to facilitate access to justice both in terms of
courtmandated remedies and other support services.
• rovision for coordinated response to domestic violence by recognizing and building
P
upon the experience of other agencies that have traditionally provided assistance to
women in distress.
Jurisdiction vested on the Magistrate (Metropolitan Magistrate/JMFC).1
The Courts have been vested with considerable powers to adopt appropriate
procedure, and an implementing structure at its disposal to ensure efficacious and
emergency reliefs to women facing domestic violence. The Protection officers who are
vital link between the Court and Aggrieved person are in direct control and supervision of
the Magistrate. In accordance with the objective of providing emergency reliefs, aggrieved
person can directly approach the court with complaints of domestic violence2. However,
applications under this law may also be filed in pending proceedings3.
1 Section 12(1) read with Section 2(i),
2 Section 12
3 Section 26
2
Overview of the Act:
The PWDVA is a civil law that defines domestic violence, recognizes women’s rights
to reside in a violence-free-home and provides remedies in cases of violation of this right.
The PWDVA operates in addition to all other existing criminal and civil laws.
PWDVA can be broadly divided into five components:
(i) Preamble or Statement of Objects and Reasons
(ii) Definitions
(iii) Rights and remedies
(iv) Mechanisms for implementation
(v) Procedures to be adopted by the Magistrate during the proceedings under section
12 and for the enforcement of orders.
I) Preamble or Statement of Objects and Reasons:
In its Statement of Objects and Reasons, the PWDVA recognizes domestic violence
as a serious human rights concern and deterrent to development. It further mentions
that since existing criminal law does not address this phenomenon in its entirety, there
is a need to enact a civil law aimed, “to provide for more effective protection of rights
of women guaranteed under the Constitution who are victims of violence of any kind
occurring within the family”.
II) Definitions
Definitions provide the coverage and ambit of the law: i.e., to whom the law applies,
the acts prohibited under the law and the authorities vested with the responsibility of
implementing the law.
In the PWDVA, definitions are provided in Sections 2 and 3. Section 2 demarcates the
coverage of the PWDVA, which includes:
(i) Aggrieved person4–defines who can initiate proceedings under the PWDVA. This
includes:
1. Any women who allege that they have faced domestic violence from
the respondent/s
2. Any woman on behalf of the child
3. Any other person on behalf of the aggrieved person including the
Protection officer.
For the purpose of this section:
Child5 being defined as “any person below the age of eighteen years and includes any
adopted, step or foster child6”, and is gender neutral.
(ii) Respondent defines the person against whom proceedings can be initiated under
the PWDVA.
The said definition7 includes:
a) Adult male person who is, or has been in a domestic relationship
with the aggrieved person.
4 Section 2(a)
5 Section 2(b)
6 Section 2(b)
7 Section 2 (q)
3
b) Relatives of the husband or male partner of the aggrieved person.
In Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Ors8, the Supreme
Court held that a woman could be a respondent under PWDVA.
Para 13 – the expression “female” has not been used in the proviso to Section 2(q) also,
but, on the other hand, if the Legislature intended to exclude females from the ambit of the
complaint, which can be filed by an aggrieved wife, females would have been specifically
excluded, instead of it being provided in the proviso that a complaint could also be filed
against a relative of the husband or the male partner. No restrictive meaning has been
given to the expression “relative”, nor has the said expression been specifically defined in the
Domestic Violence Act, 2005, to make specific to males only.
Thus the term “relative” used in this definition includes female members of the husband’s
family or male partner of the aggrieved person and said expression has not been restricted
to males only9.
(iii) Domestic Relationship10
The elements of domestic relationship are:
1) The relationship must be between two persons who
a) live or
b) have at any point lived together in a shared household
The expression “who live or at any time have lived together” protects the rights and
ensures reliefs under the Act to women who have been dispossessed or thrown out of
their shared household.
Thus, on the basis of the said definition,
• Any woman, who has been in the past, in domestic relationship with the
Respondent would be entitled to invoke the provisions of the Act11.
• Divorced Woman can also invoke the provision of PWDVA since she was in a
domestic relationship with the Respondent12.
2) The two persons must be related through marriage or a
relationship in the nature of marriage, consanguinity, adoption,
or are family members living together as a joint family.
Thus any woman, irrespective of her religion, who is in a:
1. Natal relationship
2. Marital relationship
3. Relationship in the nature of marriage
4. Women who were in the past in domestic relationship with the
Respondent which includes divorced women
5. Women who are family members living together as a joint family
Relationship in the nature of marriage:
The PWDVA , “a relationship in the nature of marriage” includes :
8 MANU/SC/0081/2011
9 Ibid.
10 Section 2(f)
11 Maroti s/o Dewaji Lande v. Sau Gangubai w/o Maroti Lande and Prashant s/o Maruti Lande, Bombay High Court [Crimi-
nal Writ petition No. 542/2010 ] [MANU/MH/1763/2011]and Karim Khan v. State of Maharashtra through PSO and Nahid
Akhtar, Bombay High Court [ MANU/MH/0990/2011]
12 Bharti Naik v. Ravi Ramnath Harlarnkar and Anr , Bombay High court [III (2011) DMC 747 2010, MANU/MH/2048/2010]
4
a. Women who are in relationships of cohabitation or live-in-relationships: In
D. Velusamy v. D. Patchaiammal13, Supreme Court noted that “in our opinion a
relationship in the nature of marriage is akin to a common law marriage. Common
law marriages requires that although not being formally married:
a. The couple must hold themselves out to society as being akin to
spouses
b. They must be of legal age to marry
c. They must be otherwise qualified to enter into a legal marriage,
including being unmarried
d. They must have voluntarily cohabited and held themselves out to
the world as being akin to spouses for a significant period of time”
Presumption: Where the partners have lived together for a long spell as husband and
wife, a presumption would arise in favor of a valid wedlock14
b. Women in an annulled marriage – The spouses who lived together for sometime
in an annulled marriage can certainly be held to have shared a domestic relationship
as defined under sec 2(f) of DVA15.
c. Women in marriages which are void or viodable in law, where all other elements
of marriage exists - Second wife have been held to be entitled to maintenance under
section 18 of Hindu Adoptions and Maintenance Act16
(iv) Shared household17 is the household where the aggrieved person lives or at any
stage has lived in a domestic relationship either singly or along with the respondent18.
Shared household includes households:
• That are owned or tenanted either jointly by the AP and the Respondent, or by either
of them;
• Where either aggrieved person or the respondent or both jointly or singly have any
right, title, interest or equity or
• Which may belong to the joint family of which the respondent is a member,
irrespective of whether either of them have any right, title or interest in the shared
household.
In S.R. Batra & Anr V. Taruna Batra19, the Supreme Court interpreted the expression
of the shared household under section 2(s) of PWDVA and held that an aggrieved wife has
the right to reside in the shared household, which was held to mean a house belonging to
13 MANU/SC/0872/2010
14 Chanmuniya v. Chanmuniya Virendra Kumar Singh Kushwala and Anr., Supreme Court, [2011 (1) ALD (Cri) 370, MANU/
SC/0807/2010]
15 T.K. Surendran P. Najima Bindu & Ors, Kerala High Court, [ MANU/KE/0682/2012] – In this case, the Hon’ble Court while
deciding an issue whether the wife in voidable marriage under section 12 of the Hindu Marriage Act is entitled to claim
maintenance under section 125 CrPC and can the statutory compassion in favour of the woman in distress in a terminat-
ed marriage and the legislative anxiety and concern to prevent vagrancy against women persuade courts to bring such
woman in an annulled marriage within scope of the definition of deemed wife in explanation to sec 125 CrPC , the High
Court took a recourse to definition of domestic relationship in section 2 (f) of PWDVA and held that spouses who have lived
together for sometime in an annulled marriage can certainly be held to have shared a domestic relationship as defined
under section 2(f) of DV Act.
16 Narinder Pal Kaur Chawla V. Manjeet Singh Chawla , Delhi High Court [ AIR 2008 Delhi 7] ,Suresh Khullar V. Vijay Kumar
Khullar, Delhi High Court [ AIR 2008 Delhi 1, MANU/DE/8505/2007] and Sau Manda R. Thaore, w/o Sh. Ramaji Ghanshy-
am Thaore v. Sh. Ramaji Ghanshyam Thaore, Bombay High Court [ Criminal Revision Application No. 317/2006, MANU/
MH/0427/2010]
17 Section 2(s)
18 V. D. Bhanot v. Savita Bhanot, Supreme Court in Special Leave Petition (Crl) No. 3916 of 2010.
19 SR Batra v. Taruna Batra, Supreme Court, [MANU/SC/007/2007]
5
or taken on rent by husband, or house which belongs to joint family of which husband is a
member.
Following are the circumstances in which Hon’ble High Courts have held that the
aggrieved person has the right to reside in the shared household:
1. Where the property is in the name of husband and the in-laws, the wife has a right to
reside20
2. Where the property was owned by the husband but has subsequently been
transferred in the name of the in-laws, with intention to deny the wife’s rights, the
women has a right to reside in shared household21
3. Where the husband has a right, title or interest in the property for the purpose of
section 17 of PWDVA22 is shared household and hence the aggrieved person has a
right to reside in the shared household.
4. In Eveneet Singh v. Prashant Choudhury and Kavita Choudhury v. Eveneet Singh23,
the Delhi High Court, while distinguishing the facts from Batra v. Batra, also pointed
out that “in Batra, the dispute did not emerge or emanate from any provisions of the
Domestic Violence Act;”
III) Rights and Remedies:
The PWDVA recognizes three important rights:
• Right to be free from violence, which is to be inferred from the definition of
domestic violence contained in section 3
• Right to reside in the shared household as recognized in section 17 of the Act.
• Right to seek remedies as provided in section 12
Remedies prescribed are in the form of orders that can be obtained from the Courts:
1) Protection orders24
• Injunctive orders to prevent domestic violence or the commission of any act that
adversely affects the aggrieved person’s right within home
• Protection orders are chiefly in the nature of the “Stop Violence” orders designed to
put an end to additional acts of violence by the Respondent against the Aggrieved
person and/ or acts that adversely impact on her rights as recognized under PWDVA.
• Threat of violence is sufficient25 for granting Protection Order
Thus protection order can be issued upon a bonafide threat of
violence or the reasonable apprehension of its occurrence. It is not
necessary that the domestic violence has already occurred.
• Protection order should be granted in addition to the other reliefs under
PWDVA
2) Residence orders:
Section 17 recognizes right to reside and 19 of PWDVA provides residence orders to
20 Jyotsana Sharda v. Gaurav Sharda, Delhi High Court [ Criminal Revision petition No. 132 and 133/2009, MANU/
DE/3520/2009]
21 P. Babu Venkatesh and Ors V. Rani, Madras High Court, [ MANU/TN/0612/2008]
22 Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, Bombay High Court [ MANU/MH/1295/2008]
23 MANU/DE/3497/2010
24 Section 18
25 Section 3 ( c ) defines “domestic violence” to include an act or conduct that ‘ has the effect of threatening the aggrieved
person or any person related to her’.
6
prevent the aggrieved person’s dispossession as well as to prevent any act that adversely
affects her peaceful occupation of the shared household.
In Vandana V. T. Srikant Krishnamachari and Anr26, Madras High Court has held that
where the husband has a right, title or interest in the property for the purpose of section
17 of PWDVA is shared household, it is immaterial whether the parties have cohabitated
in the said property. In such cases, by virtue of being wife, the aggrieved woman has a de
jure right of residence in shared household.
A residence order is sought in cases where
a) The aggrieved person apprehends dispossession or
b) She is already dispossessed and seeks to be restored to the shared household
In Ishpal Singh Kahai v. Ramanjeet Kahai, Bombay High Court27, while upholding the
injunctions orders by the Family Court directing the Respondent to remove himself from
the shared household has made specific note on right to residence - The Human right of
a person has little to do with her ownership rights in property. It is therefore immaterial to
consider in whose name the matrimonial home stands. In a case of domestic violence the
court has only to appreciate the abuse and protection against such abuse.
Section 17 of the PWDVA recognizes:
• Right to reside in shared household irrespective of right, title or ownership over,
interest over the property28
• It puts the woman’s personal rights over proprietary interest of the Respondent,
even if Respondent/s have title over the property
• Residence order not only contains within itself injunction for protection against
her dispossession, but statutorily follows as matter of corollary, the order of
injunction for removal of the violator from such household and thereafter
restraining him from entering thereto.
• Such order of removal or injunction restraining him form entering in the shared
household is therefore conditioned upon this abusive behavior violating the
person of his wife or any woman in domestic relationship and not upon his
proprietary rights therein.
• No woman may however, be directed to remove herself from the shared
household29
• Further section 19 apart from other reliefs also empowers the Magistrate:
• to reinstate the women in the shared householdError: Reference source not
found
• To issue injunctive directions restraining the Respondent from dispossessing
the Aggrieved person from the shared household30
This Section shall be read in conjunction with the definition of the shared household.
3) Monetary relief:
Section 20 of PWDVA
• Provides for monetary orders.
26 (2007) 6 MLJ 205 (Mad)
27 MANU/MH/0385/2011
28 Ishpal Singh Kahai V. Mrs. Ramanjeet Kahai, Bombay High Court [ MANU/MH/0385/2011]
29 Section 19(1)(b) proviso r/w Section 2(q) proviso
30 Section 19(1)(a)
7
• The aim of this provision is to ensure that women facing domestic violence
have adequate financial support and are not rendered vulnerable due to their
financial dependence on male members of the family.
• It is powerful tool for ensuring gender equality in economic terms. It does not
contain any exception in favour of husband and in fact it recognizes moral and
legal duty of the husband to maintain his wife.31
The reliefs available under this provision can be broadly divided into two parts:
i) Payment for losses and expenses incurred as a consequence of domestic violence;
ii) Payment for maintenance to meet daily needs and expenses of the aggrieved person
and her children
Payment for losses and expenses incurred as a consequence of Domestic Violence32
Under this category, the aggrieved person may seek orders directing the respondent to
pay for:
(i) Loss of earnings due to domestic violence.
(ii) Medical expenses incurred to treat injuries sustained as a result of domestic violence,
which includes treatment for both physical and mental injuries.
(iii) Loss of property.
(iv) Any other loss sustained as a result of domestic violence.
Payment of maintenance:
Section 20(1) (d) of the PWDVA specifies that the amount of maintenance granted can be
in addition to maintenance / amount received on an order under any of other laws33.
Quantum of Monetary Relief
Section 20(2) of the PWDVA provides that monetary relief under both categories – i.e.
payment for loss and payment for maintenance
• has to be “adequate, fair, reasonable and consistent with the standard of living to
which the aggrieved person is accustomed34” In Jasbir Kaur Sehgal v Dist. Judge
Dehradun, the Supreme Court opined, “no set formula can be laid down for fixing the
amount of maintenance. It has in the very nature of things to depend on the facts and
circumstances of each case. The amount of maintenance fixed for the wife should
be such as she can live in reasonable comfort and the mode of life she was used to
when she lived with her husband and also that she does not feel handicapped in the
prosecution of her case.”
• It can be granted irrespective of whether she has separate income of her own or
not. 35
• It can be granted irrespective of whether the aggrieved person is currently living
with the husband or not.36
4) Orders granting temporary custody of children
31 Sukrit Verma and ANr V. State of Rajasthan, Rajasthan High Court (Jaipur Bench) [ MANU/RH/0337/2011], Om Prakash v.
State Rajasthan, Rajasthan High Court (Jaipur Bench) [MANU/RH/0324/2011]
32 Section 20(1) (a),(b) and (c)
33 Rajesh Kurre V. Safurabai & others, Chattisgarh High Court at Bilaspur in Criminal Misc Petition No. 274 of 2008
34 [(1997) 7 SCC 7, MANU/SC/0835/1997]
35 Anup Avinash Varadpande v. Anusha Anup Varadpande, Bombay High Court, [ MANU/MH/0042/2010]
36 Om Prakash v. State of Rajasthan & Anr [MANU/RH/0324/2011] it was said, “ the Act does not require that the aggrieved
person must stay with the offending husband. Hence, merely because the Respondentwife is not staying with the Petition-
er-husband, it would not absolve the husband from his liability under the Act.”
8
The PWDVA deals only with temporary custody of children
• as an urgent measure to ensure that the Aggrieved person is not harassed by
denying access to the children
• To protect the children
• To ensure that they are not used pawns to coerce the woman to stay in a violent
domestic relationship.
It is important to emphasize that custody orders are temporary in nature and that
issues of permanent custody have to be decided in accordance with provisions of the
Personal law applicable to the aggrieved person or the Guardianship and Wards Act.
The best interest of the child shall be of paramount consideration to decide the
temporary custody of the child.
5) Compensation order
For mental and emotional distress caused to the aggrieved person, which are in
addition to orders for monetary relief.
The amount of compensation can be determined by the Court after assessing the
facts and circumstances of the case and the extent of injuries sustained.
IV) Mechanisms for Implementation
(i) Protection Officers37(PO):
• Serve as vital link between the Court and women i.e. the aggrieved person.
• Facilitate a woman’s access to court remedies and other support services. In
addition, POs are vested with the responsibility of assisting the Court in the
discharge of its functions.
(ii) Service Providers38 (SP):
• Organizations, registered under the PWDVA, that provide assistance to
aggrieved persons in terms of shelter, counseling, legal aid, medical aid,
vocational training, etc39.
• SPs are also authorized to receive and record complaints of domestic violence
and to conduct Court directed counseling as provided under Rule 14
(iii) Medical Facilities (MF):
• Those facilities notified under the PWDVA by State Governments.40
• Notified medical facilities cannot refuse to provide medical aid to an aggrieved
person.41 They are also authorized to record DIRs.42
(iv) Shelter Homes (SH):
• Those notified under the PWDVA by the State Governments under the PWDVA.
Notified shelter homes cannot refuse to provide shelter to an aggrieved
person43.
(v) Police:
37 Section 8
38 Section 2 (r )
39 Section 10
40 Section 2(j)
41 Section 7
42 Rule 17(3)
43 Rule 16 (2)
9
• Police are duty bound to provide information to the aggrieved person about
the rights and remedies provided under PWDVA, facilitate her access to the
PO44, initiate criminal proceedings when needed and act on the directions of
the Court to provide protection and to assist in the enforcement of orders45.
(vi) Legal aid lawyer:
• To provide free legal aid to the aggrieved person46.
• To ensure effective legal representation in the court to effectuate her rights
under PWDVA
V. Procedure to be adopted by the Magistrate under the PWDVA:
I) Domestic Incident Report:
The aggrieved person may approach PO, SP and MF with the complaint of domestic
violence. This complaint is required to be recorded in the appropriate format – as a
Domestic Incident report47
• Domestic Incident Report is report made in the prescribed form on the receipt of
complaint of domestic violence from an aggrieved person by PO, SP and MF.48
• It acts as a record of domestic violence.
• Section 12(1) requires the Magistrate to take into consideration the Domestic
Incident report.
However the Domestic Incident Report is not mandatory for passing orders
and/ or shall be taken into consideration only in cases where it has been filed.49
II) Application:
The Magistrate may receive an application under section 12 of the PWDVA with or
without the DIR from50:
1. Aggrieved person
2. Protection officer
3. Service provider
4. Woman on behalf of the child
5. Any other person on behalf of the Aggrieved person
Since the PWDVA is in addition to and not in derogation of any other law, the aggrieved
person can also make an application for reliefs under PWDVA, in any pending litigation51.
III) Ex-parte ad interim Orders:
Before issuing notice to the Respondent/s, the Magistrate may pass an ex-parte ad
interim order on the basis of affidavit52:
a. On prima facie disclosure of commission of domestic violence or;
44 Section 5
45 Section 19(5) & (7)
46 Rule 5(d)
47 Form I
48 Rule 5(1) and (2) and 17 (3) r/w Form I of PWDVR
49 Shambhu Prasad Singh v. Manjari, Delhi High Court [ MANU/DE/0899/2012 ] , Nand Kishor v. Kavita and Anr, [ MANU/
MH/0957/2009]
50 Milan Kumar Singh & Anr V State of Uttar Pradesh,2007 Cri LJ 4742 [ MANU/UP/0827/2007]
51 Section 26
52 Section 23(2) r/w Form III. Affirmed in Preceline George @ Antony Preceline v. State of Kerala & ors Kerala High Court at
Ernakulum in WP (C ) No. 30948 of 2009 (Q) and Sri Sujoy Kumar Sanyal V. Smt Shakuntala Sanyal (Haldar) and Anr. ,
Calcutta High Court , (MANU/WB/0597/2010)
10
b. If there is likelihood that the Respondent may commit domestic violence.
Note: Prima facie does not mean a case proved to the hilt but one which can be said
to be established if the evidence in its support were to be believed.53 Further the term
‘likelihood’ should be measured against the reasonable apprehension of the aggrieved
person.
The above elements under Section 23(2) are to be read with the general principles
for grant of ex parte ad interim orders, which include54:
• If urgent orders are warranted on facts and circumstances of the case Delay
would defeat the purpose where an order is absolutely necessary to protect
the aggrieved person or to prevent any domestic violence or to preserve the
then existing position.
IV) Service of Notice
i) Once the application is filed, the Court shall issue notice to the Respondent to appear
in the court.
Section 13(1) of the PWDVA prescribes that the notice shall be given by the Magistrate
to the PO, who will get it served by means as prescribed.
The means are further prescribed under Rule 12(2), which provide that the notice
can be served either by the PO or any other person on her/ his behalf. The Rule
specifically states that for service of notice, the procedure prescribed under the CPC
or CrPC, as far as practicable, may be adopted55.
In view of the above, the court may direct the notice to be served upon the Respondent,
either :
a. By the PO, with assistance from police officer of the concerned
police station. In such cases, the PO shall provide a declaration of
such service56.
b. Directly by the Police officer of the concerned Police station.
In view of the unambiguous mandate in Section 13(1), the courts should not direct
the Aggrieved person to handover the notice to the PO or the Police officer of the
concerned police station, as the case may be. The notice should be directly sent to
the Po/ Police officer of the concerned Police station, as the case may be.
ii) For the Respondents staying abroad or for interstate service, notice served through
email / fax shall suffice and print out/acknowledgment of the same shall be adequate
proof of notice57
Time limit for service:
a. The notice must be served, not later than two days, from the date on
which it was received by the PO/Police.58
b. That the Police officer of the concerned police station or PO, as the
case may be, is required to submit acknowledged copy of the Form
VII to the Court before the next date of hearing.
53 United Commercial Bank case V. Bank of India (1981) 2 SCC 766, AIR 1981 SC 1426; Bangalore Woolen, Cotton and Silk
Mills Co Ltd V. B. Dasappa AIR 1960 SC 1352
54 Supra at 52
55 Rule 12 (2) (c)
56 Rule 13(2)
57 The Delhi High Court in its Practice Direction (No. 29/Rules/DHC) dated 9th September, 2010 has stated that where email
addresses of parties are available, process shall also be sent through email, in addition to other modes of service.
58 Section 13 (1) of PWDVA
11
c) Next date of hearing:
a) The court should fix the next date of hearing within three days from
the court’s receipt of application under section 12.59
b) In case where the parties are from different states, fifteen days time
should be fixed and notice should be served at least 3-5 days prior
to date of hearing
V) Ex parte or interim orders should be passed, after service of notice:
a) On non-appearance of the Respondent: If the notice is duly served
and the Respondent fails to appear or file his written statement, the
Court may pass an exparte order on the basis of affidavit60
b) On appearance of the Respondent:
On the first date of appearance, he/ they shall file the written reply/
proceed to argue orally to the notice to show cause issued by the
Court.
After hearing the party/ies the Magistrate shall pass interim orders
on the basis of affidavits61 In Morgan Stanley Mutual Fund v. Kartick
Das with Arvind Gupta v. Securities and Exchange Board of India
and Ors, Supreme Court62, it was held that while passing interim
orders, the following factors may be taken into considerations:
• Whether irreparable or serious mischief will ensue to the aggrieved
person if the application is not granted
• Whether refusal to grant orders would involve greater injustice than
grant of it would entail
VI) During the proceedings:
a) Adjournments:
• Magistrate should avoid unnecessary adjournments to the Respondent/s
that would delay the disposal of the case
b) Re-issuance of notice for subsequent hearings, after the
appearance of the Respondent:
• Once the notice has been duly served and after appearance of the
Respondent, for subsequent hearings, the court shall not re-issue notice
to compel the appearance. This would exacerbate the possibility of delays
in the completion of proceedings.
c) Effective use of machineries under the Act:
i) Direction to the PO:
The magistrate may direct the PO
a. To be present for each and every date of hearing of proceedings
under PWDVA
59 Section 12 (5)
60 section 23(2) r/w Form III
61 Interim orders are the orders which are passed at the appearance of the Respondent as provided under section 23 (1) of
the PWDVA.
62 [MANU/SC/0553/1994]
12
b. To conduct a home visit and make preliminary inquiry prior to
passing any orders63.
The court while directing the PO to conduct the Home visit / enquiry
must specifically state:
• The exact purpose and details of such home visit and specify the date for
submission of report.
• Specifically direct the Police to assist and accompany the PO, should the
PO be under an apprehension of threats of violence or coercion at the
time of Home Visit/ enquiry.
c. To conduct an enquiry into assets, emoluments , bank accounts
and assets and other documents of the Respondent/s and other
financial details of respondent/s and file a report within the time
as may be prescribed by the Court64.
d. To restore the possession of personal effects belonging to the
aggrieved person, with a specific direction to the Police officer of
the concerned Police station to assist in the implementation of such
order65.
e. To assist the aggrieved person to regain custody of her children,
with specific direction to the Police officer of the concerned Police
station to assist in the implementation of order66
ii) Counseling and/or mediation
Section 14 (1) of PWDVA empowers the Magistrate to direct either or both parties
to counseling at any stage of proceedings. Rule 14 further lays down the conditions
under which such counseling is to be conducted. As part of this scheme for court-directed
counseling, sub-rules (7), (9), (11), (12), (13) & (14) of Rule 14 envisage efforts to arrive
at a settlement between the parties, only if the aggrieved woman so desires.
On a combined reading of Section 14 r/w Rule 14:
• The Court may direct the parties, jointly or singly for counseling. Counseling should
be directed only after an interim order(s), specifically interim protection and
residence order (if sought), have been passed.
• The free and informed consent of the woman for counseling should be taken into
consideration prior to directing the parties for counselling
• During the stage of counseling, should the aggrieved person be desirous of arriving
at a settlement, the Counselor shall make efforts in this regard67, bearing in mind the
procedure laid down in Rule 14.
• In case the parties arrive at a settlement during the course of counseling, the Court
shall follow the procedure as laid down under Rule 14, and pass an order recording
the terms of the settlement. Care must be taken to ensure the efficacy of the solution,
which should also include ensuring that the aggrieved person has not been coerced
into such settlement.68
63 Rule 10(1)
64 Rule 10(1)(b)
65 Section 19(8)
66 Rule 10(1)(d)
67 Rule 14(7)
68 Rule 14(13) & (14)
13
• For the purpose of court directed counseling, services of service provider shall be
utilized69.
The Court may also direct the parties to mediation70 for settlement, should the
aggrieved person be so desirous71, without requiring the parties to first undergo counseling.
However, in such cases too, the specific principles laid down under Rule 14 for arriving at
a settlement, and recording of terms of settlement must be followed.
VII) While passing final orders:
• The courts shall follow summary procedure as prescribed under Sections 262-264
CrPC. Towards this, for purposes of the proceedings; it shall as far as possible, pass
orders on the basis of affidavits.
• While passing final orders, where facts have already been admitted, no cross-
examination may be required72.
• The Magistrate should record substance of evidence in all cases, tried summarily.
Particular care must be taken in this regard in cases in which appealable sentence
are likely to be passed.73
• The Magistrate should record the order/judgment with a brief statement of
supporting reasons74.
• The Magistrate should endeavor to dispose off the application within 60 days from
the date on which it was filed under Section 12 of the PWDVA75.
VIII) Enforcement of orders
The following measures shall be adopted by the Courts to ensure enforcement of orders
passed under PWDVA:
1) Rule 15 (7) provides that any resistance to the enforcement of the orders of the
court under the Act by the Respondent or any other person purportedly acting on his
behalf shall be deemed to be breach of the protection order or an interim protection
order covered under the Act. Thus every order shall state that the breach of the
order/s shall be deemed to be criminal offence under section 31 of PWDVA76.
2) For the purpose of providing protection to the aggrieved person, the Magistrate
may direct the Police officer of the concerned police station to give protection to the
aggrieved person and her dependants77.
3) For the purpose of implementation of orders,
• The Magistrate may direct the Police officer of the concerned police station to
assist the aggrieved person and/ or PO in the implementation of orders7879.
• May direct the Protection officer, to restore the possession of personal effects
69 Rule 14
70 As per Section 89, CPC and in consonance with the Civil Procedure – Alternate Dispute Resolution and Mediation Rules
of High Court of Bombay.
71 Supra at 65
72 Section 156, CrPC

73 Chapter 3, Maharashtra Criminal Manual, 2007
74 Section 265(1), CrPC
75 Section 12(5)
76 Rule 15(7). For details on Breach of protection order, see the following sub-section VIII) Breach of Protection Order under
Section 31 PWDVA
77 Section 19(7)
78 P. Babu Venkatesh and Ors V. Rani, Madras High Court, [ MANU/TN/0612/2008] wherein it was held that residence order
is one of the protection order and the Police was directed to break open the lock of the house and provide protection to the
aggrieved person to reside in the shared household.
79 Section 19(5)
14
belonging to the aggrieved person with specific direction to the police officer
of the concerned police station to assist in the implementation of order.80
• May direct the Protection officer to assist the aggrieved person to regain custody
of her children or supervise the visits with specific direction to the Police officer
of concerned police station to assist in the implementation of order81.
• May direct the Respondent/s to execute bond, with or without sureties, for
preventing domestic violence82.
5) For the purpose of compliance of orders:
• The Court may direct the PO to file a compliance report of the orders passed within
prescribed time limit
• Any other measure that would effectuate better and effective enforcement of the
orders.
IX) Breach under section 31 of the PWDVA:
• Sections 18 – 22 of PWDVA should be read together, a violation of any order shall
be considered to be cognizable offence and resistance to enforcement shall be
considered as breach under section 31 of PWDVA83.
• Complaint under section 31 of PWDVA shall be tried by the same Magistrate84
without affecting the proceedings of the main application under PWDVA
• All such breach proceedings shall be separated from the main application under
section 12 of PWDVA.
• Proceedings under section 31 of PWDVA shall be tried summarily in accordance with
the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 (2) of 1974.85
• Sole testimony of the aggrieved person under section 32(2) of the PWDVA shall be
adequate and PO may also be examined, for the limited purpose of any reports that
he/ she might have filed in the Court.
• Where the complaint of breach under section 31 discloses an offence under section
498A,
• IPC or any other cognizable offence not summarily triable, the Magistrate should
first frame the charges as mandated under section 31 (3) of PWDVA and separate
the proceedings86.
• The other offences other than section 31 shall be tried in manner ordinarily
prescribed under the law.
X) Appeal:
• The courts shall not halt the proceedings and/ or stop the execution of the order/s in
the lower court, unless the higher Judiciary has granted a specific stay order.
80 Section 19(8)
81 Rule 10(1)(d)
82 Section 19(3)
83 Rule 15 (7)
84 Mrs. Pramodini Vijay Fernandes V. Vijay Fernandes, Bombay High Court, Writ Petition No. 5252 of 2009
85 Rule 15 (6)
86 Rule 31(6)
15
XI) Monitoring the implementation of PWDVA
• All the Magistrate courts and Sessions Court shall provide a monthly report on
progress of cases under PWDVA to the Bombay High Court along with copy to the
Women and Child Development Department, Maharashtra .
• Such monthly report shall include number of cases filed, number and kind of orders
passed; number of application disposed off and time duration for the same, details
about the enforcement orders, especially under section 31.
qqq
16
Introducing the Protection Officer

At this point, you should be familiar with the legal and historical context of the
PWDVA and have an elementary understanding of other relevant criminal and civil laws.
Next five chapter will now address each aspect of the PWDVA in detail so as to give you
maximum guidance in the day-to-day discharge of your duties. To begin, This Chapter
introduces the Protection Officer (PO) and her/his duties under the Act.
Chapter Outline
1. Who is a Protection Officer?
2. Duties of the Protection Officer:
2.1 Duty to Receive Complaints of Domestic Violence
2.2 Duty to Inform the Aggrieved Person of Her Legal Rights and Remedies
35
2.3 Duty to Facilitate an Aggrieved Person’s Access to Support Services and
to Take Protective Measures 36
2.4 Duty to Facilitate an Aggrieved Person’s Access to Court 37
2.5 Duty to Comply with the Orders of the Court 37
3 Guidelines for Protection Officers on General Strategies for Effective
Functioning 38
4 Status of the Protection Officer under the PWDVA 39
1. Who is a Protection Officer?
The Protection Officer is the key authority appointed under the PWDVA to implement
the Act.
Under Section 8 of the PWDVA, the State Government appoints POs. The number of
POs to be appointed and their jurisdiction is left to the discretion of the State Government.
The State Government should make this decision after considering a number of factors,
including the population of the state, the volume of reported cases of gender violence and
the number of individuals or agencies that can provide infrastructural or other support to
POs in the discharge of their duties.
Although the terms and conditions of a PO’s service are to be prescribed by the State
Government, Rule 3 of the PWDVR states that the minimum tenure of a PO must be of three
years.1 Further, Rule 3 provides that POs may be recruited from either the government or
from members of non-governmental organisations (NGOs).2 All POs should have at least
three years of experience in the social section,3 a term that encompasses persons either
qualified or experienced in social work, law, social sciences, psychology, counselling, etc.
Rule 3 also states that preference shall be given to women to be appointed as POs. Finally,
Rule 3 obligates the State Government to provide the necessary office assistance to POs
for the efficient discharge of their duties.4
In Practice
At the time of the publication of this Manual, POs had been appointed in all
states. A significant number of POs are drawn from the government cadre:
Social Welfare Officers, Women and Child Development Officers or Child
1 Rule 3(3)
2 Rule 3(1)
3 Rule 3(2)
4 Rule 3(4)
17
Development Project Officers. However, in some states, such as NCT Delhi
and West Bengal, State Governments have invited applications from, and
subsequently appointed, qualified individuals (such as those with qualifications
in Social Work or Law) to the post of POs. Most PO appointments are at the
district level and many of those drawn from the government cadre already
have part-time or full-time employment in another capacity, which means that
their PO duties are an additional charge.
2. Duties of the Protection Officer
The duties of Protection Officers are provided in Section 9 of the PWDVA read with
Rules 8, 9 and 10 of the PWDVR. These duties can be broadly categorized into two stages:
(i) Pre-litigation duties that are to be performed before the aggrieved
person approaches the Court.
Under the PWDVA, a PO is the first official person to whom an aggrieved person shall
turn for assistance. Upon being approached, the PO’s primary objectives are to minimize
the aggrieved person’s exposure to additional violence and provide for her safety; to
facilitate her access to support services such as shelter homes and medical facilities; and
to assist with the preparation of the Domestic Incident Report (DIR) and applications to
Court. Rules 8 and 9 provide a listing of the PO’s duties of at this first stage.
(ii) Duties that are to be performed after an application is filed in Court.
After the aggrieved person files an application under the PWDVA, the Court assumes
supervision and directs the PO to perform various functions stipulated in the law. Rule 10
lists the duties of the PO at this second stage, when she/he functions as an officer of the
Court.
We shall now briefly examine the specific duties that are attached to each of the
two stages delineated above. These duties are discussed in detail in Chapters 5-8 of the
Manual.
A PO must undertake her/his duties bearing in mind the overall objectives
mentioned in Rule 8(2):
(a) To protect the aggrieved person from domestic violence…;
(b) To take all reasonable measures to prevent recurrence of domestic
violence against the aggrieved person....
2.1 Duty to Receive Complaints of Domestic Violence
The primary duty of the Protection Officer is to receive complaints of domestic
violence and take necessary action based either on her/his assessment of the complaint
or on a specific request made by the aggrieved person.
When an aggrieved person approaches the PO with a complaint of domestic violence,
the complaint has to be converted into a Domestic Incident Report (DIR),5 provided as
Form I of the PWDVR. The PO assists the aggrieved person in completing the DIR.6 Once
the DIR is completed, the PO ensures that all details are filled in accurately, confirms that
the accompanying documentation is complete and, finally, countersigns the DIR.7
A PO may not always receive complaints directly from the aggrieved person.
Sometimes, the PO may also receive reliable information, verbally or in writing, from a
third party who has reason to believe that an act of domestic violence has been, or is being,
5 Section 2(e)
6 As per Rule 8(1)(e), Service Providers and medical facilities under the PWDVA also have the authority to record a DIR.
7 For details on how to complete the DIR, see Chapter : How to Record a Domestic Incident Report.
18
or is likely to be committed.8 This could happen in cases where the aggrieved person is
unable to approach the PO herself. In such cases, the information received verbally must be
written down and signed by the informant. If the informant is not in a position to furnish
written information, the PO must record the identity of the informant.9
A PO may also receive complaints in cases of emergency either through an email or a
telephone call from either the aggrieved person or a third party. In such cases, the PO may
seek the assistance of the Police who shall accompany the PO to the place of occurrence to
record the DIR.10
Once the DIR is recorded, the PO is required to forward copies of the same to
the Magistrate, the police officer in charge of the police station and registered Service
Providers within local limits or within whose jurisdiction the domestic violence is alleged
to have been committed.11 The PO must also ensure that the aggrieved person is provided
with a copy of the DIR free of cost.
2.2 Duty to Inform the Aggrieved Person of Her Legal Rights and Remedies
The Protection Officer must inform the aggrieved person of her legal rights and
remedies under the PWDVA and other relevant laws. The duty to provide information and
the nature of information to be provided is described in Section 5 of the PWDVA.12 The PO
may use Form IV to supply this information: this Form not only gives information of rights
and remedies available to the aggrieved person, but also presents illustrations of different
forms of violence to help the aggrieved person identify the kind/s of abuse to which she
may have been subjected. If the aggrieved person is unable to understand English, then the
PO must ensure that such information is provided in the vernacular or local language.13
2.3 Duty to Facilitate the Aggrieved Person’s Access to Support Services and to
take Protective Measures
You must bear in mind the fact that an aggrieved person may require many different
kinds of assistance in addressing domestic violence: legal, medical, psychological, etc.
Moreover, access to support services may be crucial in preventing or minimising future
incidents of domestic violence and in guarding against victimisation or pressurisation as
a consequence of having reported the incidence of domestic violence.14 The duties of the
Protection Officer that arise in this regard are:
(i) To take the aggrieved person to a safe shelter home, if she so requires, and to forward
copies of the record of having lodged her in such a home to the Magistrate and the
police station in whose jurisdiction the shelter home is situated.15 A PO may also
have to assist in arranging transportation to convey the aggrieved person (and her
children, as needed) to the shelter home.16
(ii) To have the aggrieved person medically examined if she has sustained bodily injuries
and to forward copies of the medical report to the Magistrate and the police station
8 Section 4
9 Rule 4(2)
10 Rule 9
11 Section 9(1)(b)
12 Under Section 5, information to be provided to the aggrieved person includes:
(a) Her right to make an application to obtain relief/s under the PWDVA;
(b) The availability of the services of Service Providers;
(c) Her right to legal aid;
(d) Her right to file a complaint under Section 498A of the Indian Penal Code (IPC).
13 Rule 8(1)(ii)
14 Rule 8(1)(xii)
15 Section 9(1)(f)
16 Rule 8(1)(vii)
19
in whose jurisdiction the alleged act of domestic violence has occurred.17 Here too,
the PO may have to arrange for transportation to convey the aggrieved person (and
her children, as needed) to reach the medical facility.18
(iii) To provide information on available support services and registered Service
Providers in the area, particularly counselling services, to enable the aggrieved
person to access such services on her own.
In order to provide information on support services available, a Protection Officer is
duty-bound to take the following steps:
(a) To maintain an up-to-date list of registered Service Providers, notified medical
facilities and shelter homes within her/his jurisdiction. Service Providers may be
chosen from among those providing legal aid, counselling, medical and shelter
services.19 It is advisable that the PO obtain this list as well as information on
available government schemes for women from the appropriate department of the
State Government.
(b) To maintain an up-to-date list of counsellors associated with Service Providers or
functioning independently.20
(c) To liaise between the aggrieved person, police and Service Providers.
Another important method of taking protective action to stop further acts of domestic
violence is to prepare a “Safety Plan,” as per Form V of the PWDVR.21 A PO should prepare
a Safety Plan in consultation with the aggrieved person after making an assessment of her
situation and the kind of support that she may require. Although the PWDVR provides for
the Safety Plan to be prepared after an application for relief is filed in court,22 this is an
assessment tool that can be useful even before an application is filed.
2.4 Duty to Facilitate an Aggrieved Person’s Access to Court
The Protection Officer is a crucial link between the aggrieved person and the Court.
In order to facilitate an aggrieved person’s access to court, a PO is required to take the
following measures:
(i) To prepare or assist in preparing an application to obtain relief/s under the PWDVA
as per Form II of the PWDVR.23 A copy of the DIR is to be attached to the application.
In cases where the aggrieved person requires immediate relief, the PO may also file
an affidavit as per Form III of the PWDVR to seek an interim order from the Court.
(ii) In cases where the aggrieved person is unable to afford the services of a lawyer, the
PO must ensure that she is provided legal aid under the Legal Services Authorities
Act and make available the prescribed form for obtaining such aid free of cost.24
2.5 Duty to Comply with the Orders of the Court
As we have mentioned earlier, in addition to providing aid to the aggrieved person,
the Protection Officer is also required to assist the Magistrate in discharging his/her
functions under the PWDVA.25 At this stage of her/his duties, the PO is under the control
17 Section 9(1)(g)
18 8(1)(vi)
19 Section 9(1)(e) and Rule 8(1)(xiv). For details on building a multi-agency response system, see Next Chapter, Part 3.
20 Rule 8(1)(viii), (ix) and (x)
21 Safety Plans are discussed in detail in Chapter Duties of the Protection Officer During and Post Litigation, Part 2.
22 Rule 8(1)(iv)
23 Section 9(1)(c) and Rule 8(1)(iii). For further details on how to prepare an application.
24 Section 9(1)(d)
25 Section 9(1)(a)
20
and supervision of the Magistrate26. Hence the PO must receive an order from the Court
before undertaking any of the following duties:
(i) Ensure that notices are served on the respondent to appear in court.27
(ii) Conduct a home visit of the shared household premises if the Court requires any
clarifications prior to granting an ex parte order.28
(iii) Make enquiries and file a report on the economic status of the respondent by
examining emoluments, assets, bank accounts and other relevant documents.29
(iv) Restore an aggrieved person’s personal effects to her, such as gifts and jewellery, and
restore her in the shared household.30
(v) Assist an aggrieved person in regaining custody of her children and secure visitation
rights as may be ordered by the Court.31
(vi) Assist the Court in the enforcement of orders in the manner directed by the Court.32
Additionally, Section 9(1)(h) obligates POs to ensure that orders for monetary relief
are complied with and executed in accordance with the procedure prescribed under
the Code of Criminal Procedure, 1908 (CrPC).
(vii) Confiscate weapons used to commit domestic violence with the assistance of the
police.33
The general objective of Rule 10 is to ensure that the PO is available to render any
assistance that the aggrieved person or the Court may require. Therefore, the PO may be
directed to perform other functions by either the State Government or the Magistrate to
give effect to the provisions of the PWDVA.34 In addition to issuing directions provided for
in Rule 10, the Magistrate can also issue directions for general practice for better handling
of cases under the PWDVA. The PO is duty-bound to carry out these additional directions
as well.35
3 Guidelines for Protection Officers on General Strategies for Effective
Functioning
• Acquire a thorough knowledge of the PWDVA and other relevant criminal and civil
laws.
• Acquire knowledge of general procedural laws such as the Indian Penal Code (IPC),
Code of Criminal Procedure (CrPC) and the Indian Evidence Act (IEA).
• Acquire knowledge of government schemes and other facilities of which the
aggrieved person may avail.
• Create awareness about the PWDVA through the District Administration.
• Promote multi-agency and interdepartmental cooperation to create a Domestic
Violence Response System.
26 Section 9(2)
27 Section 13 read with Rule12. For further details on the service of notice, see Chapter Duties of the Protection Officer
During and Post Litigation, Part 1.
28 Rule 10(1)(a). For further details on conducting a home visit, see Chapter Duties of the Protection Officer During and Post
Litigation, Part 3.1.
29 Rule 10(1)(b)
30 Rule 10(1)(c)
31 Rule 10(1)(d)
32 Rule 10(1)(e). Enforcement of orders is discussed in detail in Chapter Duties of the Protection Officer During and Post
Litigation, Part 3.4.
33 Rule 10(1)(f)
34 Rule 10(2)
35 Rule 10(3)
21
• Explain to the aggrieved person, in a clear, accurate and sensitive manner, the offence
of domestic violence and rights and remedies available to her under the PWDVA.
• Acquire the ability to guide the aggrieved person in addressing domestic violence.
• Acquire the skills to conduct enquiries and submit proper investigation reports to
Court.
• Prepare the DIR carefully and ensure that supporting documentation is in order.
• Ensure the timely service of notice.
• Ensure the effective enforcement of Court orders.
• Maintain complete and up-to-date records of casework.
• Develop problem-solving and crisis-management skills.
4 Status of the Protection Officer
Section 30 of the PWDVA provides that Protection Officers, while performing their
duties under this law, are deemed to be “public servants” within the meaning of Section 21
of the IPC.
Further, Section 35 of the PWDVA provides that no suit, prosecution or any other
legal action for damages can be brought against a PO for any act done in good faith under
this law.
Although the PWDVA accords broad legal protection to POs in complying with
their duties under this law, a PO’s unjustified failure or refusal to comply with directions
issued by the Magistrate in any protection order granted may attract imprisonment for
up to one year and/or a fine of up to Rs. 20,000/-. However, since a PO is a public servant
with a fixed remuneration, Section 34 of the PWDVA specifies that prior approval of the
State Government (or any officer authorized by it) is required before any prosecution is
commenced under Section 33 of the Act.36
qqq
36 Section 30.
22
How to Interact with the Aggrieved Person

It is now time to look at the duties of the Protection Officer (PO) that arise before
an aggrieved person decides to initiate legal proceedings. This Chapter will focus on the
different ways in which a PO can receive complaints of domestic violence and discuss how
best a PO should interact with the aggrieved person. A person in a situation of domestic
violence has specific needs and vulnerabilities that must be kept in mind as she is offered
assistance. This Chapter provides important recommendations on how a PO can respond
sensitively and effectively to the aggrieved person. It also describes the Domestic Violence
Response System (DVRS): a collaborative, multi-agency approach to aiding the aggrieved
person.
Chapter Outline
1 How does the Protection Officer Receive Complaints of Domestic
Violence?
1.1 Information Received Directly from the Aggrieved Person
1.2 Information Received from Third Parties
1.3 Action to be taken in Cases of Emergency
2 Interacting with the Aggrieved Person
2.1 Basic Principles of Interacting with the Aggrieved Person
2.2 Creating a Communication Structure
2.3 Understanding Why Women Accept Violence
2.4 Fatigue and Burnout among Protection Officers
3 Building a Domestic Violence Response System
3.1 Role of the Police
3.2 Role of Service Providers
3.3 Role of Shelter Homes
3.4 Role of Medical Facilities
3.5 Role of Legal Services Authorities
3.6 Role of Counsellors
1 How does the Protection Officer Receive Complaints of Domestic Violence?
The PWDVA provides multiple options to an aggrieved person for approaching a
Protection Officer and accessing legal remedies and other forms of assistance. Although
the PO is envisaged as the primary recipient of information on and complaints of domestic
violence, she/he may also receive such information and complaints from other sources, as
discussed below.
It is likely that, in cases of domestic violence, the aggrieved person shall first approach
the elders of the family to take appropriate action. Failing resolution by family members,
it is possible that the aggrievedperson will approach local organisations or individuals
working on women’s issues or panchayats in rural areas. In case she has sustained serious
injuries, the aggrieved person may approach the police to record a complaint or seek aid
from medical facilities or shelter homes. There may also be cases where she seeks legal
advice from a lawyer or counselling from family counselling centres. All these agencies
local NGOs, medical facilities, shelter homes, lawyers and counselling centres, etc. – can/
23
will then refer the aggrieved person to the PO for further assistance. Finally, in certain
cases where an aggrieved person is aware of the availability and role of POs, she may
directly approach the PO.
1.1 Information Received Directly from the Aggrieved Person
A PO can receive complaints of domestic violence from an aggrieved person through
any of the following methods:
(i) The aggrieved person may directly approach the PO.
(ii) The aggrieved person may approach the PO with a referral from a Service
Provider or any other agency working on women’s issues.
(iii) The aggrieved person may approach the PO with a referral from the police.
(iv) The aggrieved person may approach the PO with a referral from a medical
facility or shelter home.
(v) The aggrieved person may approach the PO with a referral from a lawyer or
counsellor or any other person from whom she has sought assistance.
(vi) The aggrieved person may approach the PO with a referral from Court. As the
PWDVA does not bar an aggrieved person from approaching the Court directly,
it is possible that she may be referred to a PO after an application is filed in
Court. In such cases, the PO may be required to fill in the Domestic Incident
Report (DIR) and render assistance to guard against the commission of further
acts of violence while the matter is pending in Court.
1.2 Information Received from Third Parties
A PO may also receive information about an incident of domestic violence from any
person who has either witnessed or is aware of its occurrence.
Section 4 of the PWDVA authorizes “any person” who has reason to believe that
domestic violence is occurring to inform a PO. “Any person” could be a sibling, an out-
of-town relative, a child, a concerned neighbour or simply a passer-by who witnessed
domestic violence. It is not necessary that the person be certain that domestic violence has
been or is being committed; all that is required is that the person’s belief be reasonable.
The objective of this provision is to address situations where the aggrieved person is
unable to approach a PO on her own. This may be due to various reasons such as physical
incapacity or inability caused by wrongful restraint, lack of awareness of legal rights,
apprehensions of escalated violence particularly on children or other dependents, etc.
In such cases, Section 4 of the PWDVA allows a third party to give information on the
occurrence of violence to the PO for further action. Furthermore, persons acting in good
faith in providing such information are given immunity from civil and criminal liability.1
The PO may receive such information either orally (if, for instance, the informant is
illiterate) or in writing.2 When the PO receives this information orally, she/he should reduce
it to writing. Whether information is originally received orally or in writing, the PO must
ensure that it is signed by the informant. For several reasons, including guarding against
malicious interference in domestic affairs, the PWDVA does not allow for the recording of
information received anonymously. Therefore, the PO must satisfy her/himself about the
identity of the informant and keep a record of the identity of the informant, particularly in
instances where the informant is not in a position to furnish written information.
1 Section 4(2)
2 Rule 4(1)
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Once the information is recorded, the PO must give a copy of the record to the
informant free of cost.3 On the receipt of such information, the PO may also initiate
preventive action to stop the further escalation of violence.
Information received under Section 4 is to be distinguished from complaints
of domestic violence. The PWDVA recognises that aggrieved persons have the best
knowledge of their own circumstances and need to make their own decisions on the
nature of assistance they need. Consequently, information provided to a PO does not by
itself trigger judicial proceedings or any other action in law. Instead, information received
by POs under Section 4 serves as a record of previous violence if the aggrieved person
is subjected to domestic violence again. If, in the future, the aggrieved person files an
application under the PWDVA in Court, then the Court may rely on information earlier
recorded under Section 4. It also allows the PO to be better prepared if the aggrieved
person approaches her/him with a complaint of domestic violence at a later stage.
1.3 Action to be taken in Cases of Emergency
An aggrieved person may contact a Protection Office in cases of emergency, such as
being dispossessed from the shared household in the middle of the night. Rule 9 of the
PWDVR addresses the PO’s duties in this situation.
According to Rule 9, a PO may receive reliable information through an email or a
telephone call, either from the aggrieved person or a third party that an act of domestic
violence has been committed or is likely to be committed. By allowing a PO to receive
information through various means, the PWDVR recognise that violence may occur at any
time, including in the middle of the night when an aggrieved person is most vulnerable.
It also takes into account the fact that an aggrieved person may not be able to leave her
house to make a formal complaint and might, therefore, attempt to contact the PO either
telephonically or by sending an email. If she does not have access to these services, then a
third party, such as a neighbour or a family member, can inform the PO of the violence that
is being perpetrated. In such cases, the PO is expected to reach out to the aggrieved person
to give her an opportunity to make a complaint.
On receiving such emergency information, the PO must seek immediate assistance
from the police. The police will then accompany the PO to the place of occurrence of
violence, where the PO will record a DIR and take appropriate action.
The immediate emergency measures that a PO is duty-bound to take include:
(i) If the aggrieved person has been dispossessed and requires shelter, the PO must
inform her of available shelter homes, particularly those notified under the PWDVA,
and arrange for her transportation to the shelter home.4
(ii) If the aggrieved person has sustained serious physical injury, the PO must assist her
in obtaining immediate medical attention and arrange for her transportation to the
medical facility.5
(iii) The PO must inform the aggrieved person of her legal rights and remedies and assist
her in recording a criminal complaint immediately, if she so desires. In this instance,
the police accompanying the PO to the place of occurrence may be relied upon to
restore peace and take measures to prevent further acts of violence.
Rule 9 also provides that the DIR recorded must be presented “without any delay”
to the Magistrate for appropriate orders. The use of the term “without any delay” means
3 Rule 4(3)
4 Rule 8 (1)(vii)
5 Rule 8 (1)(vi)
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that such DIRs can be forwarded to the Magistrate at any time, even after Court hours. It
is, therefore, advisable for the PO to develop an understanding with the Magistrate on how
she/he is to contact the Magistrate if an emergency arises at an after-hours time when the
Court is not in session.
2 Interacting with the Aggrieved Person6
As you will recall, the Introduction to this Manual alluded to the civil society campaign
for an Indian law on domestic violence, locating this campaign within the broader context
of the Indian women’s movement and its work with women facing domestic violence.
Within that context, there was broad recognition that women in situations of domestic
violence require multiple forms of support (legal, medical, psychological, etc.) and that
these must be provided keeping in mind their particular needs and vulnerabilities. This
recognition is reflected in the PWDVA’s creation of the post of the Protection Officer.
In Practice
In those states where PO appointments are contractual in nature, the trend has
been to recruit to this post persons with qualifications in social work. There
appears to be a recognition that their training gives social work professionals
excellent skills in forming the crucial link between the aggrieved person
seeking assistance and the various agencies that can provide the necessary aid.
Part 5.2 presents important guidelines on how to interact with an aggrieved person.
If you are a trained social worker, much of this information will be familiar to you, but we
encourage you to review it in order to refresh your skills. If you do not have any social
work background, we strongly recommend you carefully read Part 5.2 in its entirety.
The PWDVA is designed around the recognition that the support of a PO can be
critical for an aggrieved person. The PO’s role is to facilitate the aggrieved person’s access
to support services of various kinds and to help her navigate the legal system if she chooses
to file an application under the Act. Without the PO’s support, an aggrieved person might
feel unable to tackle her situation: uncertain of how to obtain non-legal assistance and
reluctant to pursue legal remedies which, consequently, will reinforce her vulnerability
and disempowerment.
As a PO, you must be aware of your own thoughts and feelings (including prejudices)
about family violence, if you are to assist women effectively, sensitively and respectfully.
POs who are unclear about their own opinions on family violence may deny its existence,
blame the women in crisis and minimise the effects of the violence. Reading this Manual
should help you to identify your biases, clarify your misconceptions and distinguish
between myth and fact in order better to understand the phenomenon of domestic
violence and the needs of the aggrieved person whom you are duty-bound to assist.
2.1 Basic Principles of Interacting with the Aggrieved Person
First and foremost, as a PO, you need to establish a supportive and encouraging
relationship with the aggrieved person. Women in violent relationships usually have very
low self-esteem. In order to establish a sympathetic and empowering relationship, you
will find it helpful to remember the following principles of social casework7:
6 LCWRI is deeply indebted to the pioneering and definitive work done in this field by the Tata Institute of Social Sciences,
on whose protocols and publications we rely in Part 5.2. Please note: Part 5.2 is not intended as a summary of social work
principles; rather, it is our compilation of those aspects of social work principles and TISS protocols that we regard as par-
ticularly relevant to the PWDVA. LCWRI is solely responsible for any errors or misinterpretations regarding these principles
and protocols.
7 Although the majority of examples provided in the Manual are about married women, please remember that domestic
violence under the PWDVA is not limited to matrimonial situations.
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• Every person must be considered to have dignity and worth.
Always accept that people have a potential to grow and achieve their dreams.
Moreover, since human beings cannot survive in isolation, when a person is unable to
realise her potential for a healthy and fulfilling life, it becomes the role of the society she
lives in to help her out.
For Example
A is facing mental and physical violence from her father and, as a result, is
unable to attend college. It is the duty of the agencies that are meant to protect
her rights and the society at large to help her emerge from the situation of
violence and be able to educate herself and thereby achieve her goals.
• Accept each aggrieved person who approaches you as a unique individual.
No matter how many women approach you every day, each one of them is unique:
each one experiences violence in a particular way and has needs that are specific to her.
Never generalise or stereotype the problems of the women who come to you for assistance.
For Example
B and C, who are sisters, are both facing domestic violence from their marital
families. Both B and C are being denied food. However, B is pregnant. As a PO,
you will need to tailor the assistance you provide to each sister to her respective
circumstances and different needs.
• Do not judge the aggrieved person. Do accept her with all her strengths and
weaknesses.
As a PO, your job is to help the aggrieved person. You are not meant to judge or
punish her character or her actions. Just like you, the aggrieved person is a human being
with both good and bad qualities. The particular circumstances of her situation will have
led her to make certain decisions and take certain actions. Although these circumstances
and reasons may not be immediately clear to you, you must acknowledge that they exist
and are compelling for the woman herself. It is not your role to find fault with her or to put
conditions on assisting her. Rather, it is your role to build an attitude of active concern for
the aggrieved person.
As a PO, you must respect the decisions the woman may make, even when those
decisions are contrary to what you believe would be the best option. You must bear in
mind that each woman experiences domestic violence primarily because she is a woman:
that our culture effectively supports the right to control women and that the barriers to
her freedom are many. She may not be able to free herself at this time; be delighted and
amazed when she does.
For Example
D is facing emotional and physical violence from her husband and decides to
leave the home without her child. Although you may disagree with her decision
to leave her child behind, it is your duty to help her get adequate protection
from violence, irrespective of how you feel about her decision. If she is leaving
the child in a situation where he/she may face violence, you may find an
acceptable way to express your disagreement; but, even in that case, you must
understand that, in the woman’s situation, the instinct for self- preservation is
stronger than all other feelings.
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• Remember that whatever the aggrieved person may choose to do with her life is her
own decision. Always accept that she must participate in solving her own problems.
It is her life. She is the only one who has the right to decide how to live it. You must
inform her of the choices available to her and you may offer guidance in making these
choices, but you cannot make her decisions for her. Rather, you must motivate her to make
these decisions herself.
Because many women in our culture have been brought up to think that they cannot
(or must not) make any decisions on their own, you might find that the aggrieved person
asks you to decide for her. Do not do so. Keep in mind that giving advice is not the same
as telling a person what to do and that the woman’s self-determination is critical. After
explaining all her options, ask her: “what would you like to do?” Be patient and supportive
while she struggles with her choices. Even if it takes her a long time to decide, she is the
only person who is entitled to make that decision.
Assessing how supportive or how empowering you need to be depends on the
aggrieved person’s physical and emotional state. As a general principle, POs need to work
from the premise that, wherever possible, it is best to encourage the woman to make
decisions for herself and take actions for herself. There are some situations, however,
where she will be incapable (physically or emotionally) of such tasks and will need you to
be more supportive than usual.
There is a significant fallout if you automatically make another person’s decisions
for her: if the consequences of your decision are unpleasant or unsafe, the person you are
trying to help could hold you responsible.
For Example
E is facing domestic violence and, with your assistance, chooses to go to Court.
She is granted a protection order and decides to live separately from her
husband. However, a few months later, she chooses to go back to him. You may
feel that after the kind of violence she has undergone, it is not wise for her to
return to her husband. Nevertheless, you must let E make her own choices and
support her. And even if she returns to you with a new complaint of domestic
violence, it is your duty to assist her without bias.
Consider another situation where F has suffered physical violence and is faced
with the choice of leaving the shared household or trying to adjust to the
violence. When she asks for your advice, you recommend that she remain in
that household. However, the violence continues and, one day, she is beaten
so badly that she needs hospitalisation. Your decision will now be on your
conscience.
• Remain mindful of the fact that your role as PO makes you vulnerable to becoming
overinvolved in the life of the aggrieved person.
Remember that your relationship with the client is not personal; it is professional
and, therefore, you must control your emotional involvement. Although the aggrieved
person or the perpetrator of the violence may remind you of someone in your own life,
that is all it is: an unexpected resemblance. Your role is to provide professional help and
you must not allow personal considerations (such as resemblance to family or friends) to
cloud your judgement.
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For Example
G is facing domestic violence from her brother and her brother reminds you of
your own younger brother. You feel that G is complaining too much about only
emotional violence and that G’s brother is actually a ‘nice person’. So you tell G
that she is being unreasonable and advise her to return to her brother’s house.
Her brother beats her up again. Now, when she comes back to you, how will
you justify the stand you took in advising her go home?
• Remember that information given to you by the aggrieved person must be treated with
confidentiality.
Maintaining confidentiality is essential for you to create a relationship of trust
with the aggrieved person and is also of utmost importance because the inappropriate
disclosure of information may endanger or victimize the woman further, thus defeating
the purpose of the PWDVA. Furthermore, the PO’s status not only as a public servant, but
also as an officer of the Court, bars her/him from discussing the case with any person,
except with other authorities and agencies recognised under the PWDVA, and that too
with the express purpose of assisting the aggrieved person. Although the DIR is a public
document and you might need to discuss aspects of the case, you must never have such
discussions without first obtaining permission to do so from the aggrieved person, unless
it is a case of emergency. All other authorities and agencies, too, are required to maintain
the confidentiality of your discussions.
The fact that the DIR is a public record does not mean that all persons can have
access to it. The only instance where a DIR can be shared or given to another person other
than the authorities or agencies recognised by the Act, is if it used as the basis to grant an
order or to take any action that adversely affects the rights of such a party.
2.2 Creating a Communication Structure
With the above principles in mind, we will now discuss how to create a communication
structure that encourages the aggrieved person to trust you and be forthcoming with
all the details of her situation. Listening and talking to the aggrieved person is also an
essential skill which you will have to inculcate in order to record the DIR accurately and
take appropriate precautionary measures.
While talking to a woman who has experienced domestic violence, the essential
principles of the interaction should include the following:
• Your interaction is with an adult and can only be undertaken with her voluntary and
informed consent.
• The aggrieved person has the right to the least intrusive intervention. A person will
accept help when she is ready. The choice not to accept help must be respected.
• Women who have experienced severe violence over a long period of time may often
have a distrust of the systems that are meant to protect them. As a PO, you are a part
of that system and, therefore, the aggrieved woman may not trust you or your ability
to assist her. Do not take this personally. Instead, make an extra effort to reach out to
her: to show that you are available and can be depended upon to help her.
• Talking about the violence that an aggrieved person has experienced is complicated
by fear, ignorance and embarrassment. The woman may be vulnerable and indecisive
and show low self-esteem. Most women are very vulnerable at the time of disclosure
or can be in a state of emotional shock that may last several days. During this time,
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many women are overly compliant to suggestions and may later blame the PO for
giving advice. The PO should listen, allow time for the woman to vent her feelings,
offer emotional support and avoid telling the woman what to do. Remember: giving
advice does not mean telling the woman what to do. She must decide her own course
of action, with your steady and patient support.
• Women who have experienced violence may often feel ashamed of the abuse, terrified
of the abuse and blame themselves for the perpetrator’s actions. Before a woman can
participate in the process of solving her problems (with your assistance), she needs
to realise that she is not at fault for the violence she has suffered. In order for her to
realise this, you will have to help remove any feelings of guilt she might harbour, by
recognising that violence against the woman is the fault of the perpetrator alone. If
a person is unable to control their own emotions and resolve issues in an adult and
non-violent manner, then the problem is with that person and not the victim of their
violence. In our society, where women are routinely made to feel inferior and told
that they ‘deserve’ the violence that they ‘provoke’, it is especially important to make
sure that the aggrieved person understands that violence is not her fault, that she
has options and that she is not alone. You must make it clear to her that she has the
right to live a life free of violence.
As a PO, you will need to offer the aggrieved person a great deal of moral support
so that she can develop the confidence to resolve her situation. One way to provide
affirmation is in the form of statements like: “You don’t deserve this, you deserve
much better”; “There is no excuse for domestic violence”; “You are not alone”; “I will
support your choices”.
• Domestic violence can overwhelm the aggrieved person’s ability to think clearly. As
a PO, it is your role to help the woman look at her situation realistically such that she
realises there are concrete steps she can take to improve her situation. Rather than
allowing her to feel daunted or defeated by her situation, help her to problem-solve
with hope and confidence.
• Your interaction should be aimed at creating the maximum options for the aggrieved
person, in the context of her specific situation. You need to provide the woman
with information about different legal, medical and administrative systems and the
rules and procedures of these systems. You need to help her identify and explore all
possible options and possible consequences and assist her in developing strategies
and a plan of action. You must refer her to resources you know are reliable and with
which you are familiar. Information provided about referrals can be as specific as the
best time to call, who to talk to and what information she will need to provide. You
have to discuss a plan of action, assist in the preparation of all necessary documents
or requests for assistance, and help rethink plans if they fail or if circumstances
change.
These broad guidelines influence how you should frame your questions, about which
more specific suggestions follow below:
• Always ask straightforward, open-ended questions in a non-threatening and non-
judgmental manner. This will help decrease the stigma associated with abuse.
• Women may avoid discussions because questions are painful, embarrassing or
provoke anxiety. Structure your conversation to systematically and gradually get
more data, thus allowing the aggrieved person to tell her own story. Take notice of
30
vague or evasive answers. Ask for clarification of vague answers and pursue areas in
which the woman is evasive.
• Do not ask:
X ‘Yes’ or ‘No’ questions (unless you want a simple ‘Yes’ or ‘No’ answer).
For example: “Did you have to face any violence?”
X Complicated questions
For example: “What do you think are the behavioural implications of violence on
women?”
X Vague questions.
For example: “What do people generally believe to be the effect of violence?”
X Several questions at once.
For example: “What were the results of your interview, did you get the job and have
you applied anywhere else?”
X Probing, threatening or culturally insensitive questions.
For example: “Do you think that your religion teaches you to be more violent?”
X Judgemental questions.
For example: “Aren’t you ashamed of leaving your children behind?”
X Questions that imply an answer or a point of view.
For example: “If you want to move on with your life, wouldn’t it be helpful if you
moved out of the house?”
• Do ask:
ü Questions that make the woman feel at ease and not threatened.
For example: “How do you feel now?”
ü Questions that encourage the aggrieved person to continue talking.
For example: “You said that you find it difficult to talk about all the problems you
faced in your home. Can you tell me the specific difficulties you faced with your
father?”
ü Questions that elicit more facts, opinions or feelings.
For example: “How do you feel when your mother says that your marriage is fine and
you need to go back to your matrimonial home?”
ü Questions that help the person answer honestly.
For example: “What particular kind of emotional violence do you find the most
difficult to deal with?”
ü Questions that support the person while encouraging objectivity.
For example: “I can certainly understand that living with such a difficult person
makes it hard for you to retain your peace of mind. In what way do you think you
could reassure your brother and yet retain your rights?”
ü Questions that are specific and focus on the real situation.
For example: “What happened when you said that?”
ü Questions that help the person see that you do not have all the answers.
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For example: “Let’s try to think of other ways by which to solve this problem?”
2.3 Understanding Why Women Accept Violence
As a PO, you may sometimes feel frustrated, helpless or even angry if the aggrieved
women who approach you appear not to be taking concrete steps to remove themselves
from situations of violence. People who work with women on issues of domestic violence
frequently ask themselves the following:
• “Why do women accept violence? Why don’t they protest? Why don’t they walk out
of abusive relationships? Why don’t they take action against those who perpetrate
the violence?”
• “The woman came to me, I gave her all the help I could think of and, then, two weeks
later, she told me she still does not want to go to Court. All my effort was wasted:
what was the use of her coming to me if she wanted to go back and reconcile?”
• “Why doesn’t she understand that it is stupid to go back to a man who beats her?”
• “What is the point of her settling the matter out of Court, when he could easily turn
against everything that was agreed upon and she won’t be able to do anything?”
• “How can I help her if she is not even willing to speak up against her own husband?”
It is not within the scope of this Manual to discuss at length the socio-psychological
dynamics of domestic violence, although the topic has been, and continues to be, the
subject of rigorous scholarly research and activism. Instead, in part 5.2.3, we attempt
to address some of the most common justifications for violence that you are likely to
encounter. We place these justifications within our local socio-cultural context in order to
enable you to understand why some of the women you meet in the course of your work
make the choices and decisions that they do. Remember: instead of summarily dismissing
a woman’s reasons as wrong, you must respect the fact that the reality of her specific
situation compels her to behave in certain ways.
At the simplest level of explanation, women in our society are regarded as inferior
and are socialised, from the time they are children, into believing that violence perpetrated
on them is natural and acceptable: i.e., that they are the appropriate objects of the
perpetrator’s anger (an anger which is allowed to be uncontrolled in stark contrast to
women’s behaviour which is strictly circumscribed). One reason why the PWDVA elicits
strong reactions is that it has brought the issue of domestic violence out from the ‘private’
sphere of the home into the ‘public’ domain of law and policy and, in so doing, asserted
that domestic violence is not a cultural prerogative or a problem between two people, but
rather it is the product of patriarchal social structures that determine the behaviour of
women and men.
(This notion of family privacy is also why you might find that your attempts to elicit
more information regarding these matters bring out strong reactions from the women
who come to you. They may even suspect your intentions for wanting to know more or do
more than they feel is necessary.)
It is not just that violence against women is considered acceptable in our society,
but also that the very definitions of what constitutes violence in the first place vary
widely, with many people – both women and men – failing to recognise certain actions
as violent at all or dismissing them as ‘minor’ in relation to ‘more’ serious, more ‘real’
forms of violence. So, in most places you will find that a certain level and some forms of
violence are designated as ‘normal’ and acceptable within domestic relationships. Many
32
women will tell you that some incidents of violence were just ‘an occasional outburst’ or
that a show of temper that resulted in ‘just one slap’ need not be counted in the history of
violence. Many will even tell you that they have come to you for one critical incident and
that the rest of the incidents are routine (“yeh sab to chalta hi rehta hae”). You must also
guard against such prejudice in yourself: you might find yourself trivialising certain forms
of domestic violence by saying: “Husbands and wives do fight, this is normal” (“pati patni
mein tu-tu mae-mae to hota hi hae”) or “it takes two hands to clap” (“do bartan ho to awaz
to hogi”).
As mentioned above, both men and women will provide several culturally sanctioned
explanations for the perpetrator’s anger:
• One of the most common explanations for violence is alcohol/drunkenness.
Women will often tell you: “When we got married, he was a very nice man, he earned
a lot and never once hit me. But now he has fallen into bad company and started drinking.
Now he comes home drunk and curses and beats us. He spends all the money on alcohol.”
Or they might make excuses for his drinking: “He gets so tired that he needs something to
help him relax, so he drinks a little. But the drink overpowers him; it isn’t his fault.”
Alcohol is seen to transform an otherwise nice person into a violent one: it absolves
the perpetrator of responsibility because he is seen to have no control over himself when
under the influence. But ask yourself this: if, indeed, the man cannot help himself when
he is drunk, then why does he not go outside and attack other men or people bigger than
himself? Why does he only unleash his violence on women and inside his home?
• Another commonly given excuse for violence is the woman’s inability to bear children
or – rather more often – to produce a male child.
When’s a woman’s sole purpose is understood to be bearing children, then her
‘failure’ to do so – especially her ‘failure’ to produce a male heir – is seen as worthy of
violent punishment. A woman will tell you: “I am being hit for a reason: I haven’t been
able to give my husband a son.” Or: “I know I’m not well, but I had two girls one after the
other, so we have to keep trying to have more children. That is why he uses a little force
sometimes.” Or she might say: “I couldn’t have a child, so they used to hit me then, but now
that I have a boy, I don’t see why they should hit me anymore.” She might even justify her
husband’s bigamous relationship: “I couldn’t give him a son, so I told him that he could
marry again, but now that I have a son, I want him to come back to me.”
As you know, women can be severely beaten, thrown out of the matrimonial home
or sent back to the natal home for this reason. The biology of pregnancy and gender
determination is rarely understood; instead, the ready explanation you will hear is that
the woman is “barren”.
Women are frequently forced to have numerous children, even in the face of their
deteriorating health, in the hopes of a male child. Most women will not consider this a
form of sexual violence.
• One of the rarely spoken about but frequently occurring manifestations of domestic
violence is sexual violence, often in the form of forced sex.
When women’s bodies are considered the property of men, then sexual violence by
their male relatives is justified as the rightful exercise of male authority. Women might
refer to this violence obliquely: “sote mein mara” (literally: “He hit me as I slept”). One of
the primary reasons for condoning this kind of violent behaviour is the belief that men
have stronger sexual urges than women. So you might have women say to you: “He knows
33
I am very young and I am scared, but how can I refuse my own husband?” Or: “How can it
be rape if he is married to me?” Or: “If he wants it, he can do whatever he wants, even if he
hits me; you see men are very different from women.”
It is possible that you may find it difficult to ask about, deal with or even accept this
form of violence. However, the fact is that sexual violence is a very widespread problem in
India and comes in many different forms. You will have to overcome your own reluctance
and shyness, learn how to ask women if they have suffered this form of violence and be
able to clarify their doubts regarding what constitutes sexual violence.
• Another common excuse for violence is the ‘misbehaviour’ of a ‘disobedient’ (or
‘immoral’) woman.
Our patriarchal moral code divides women into two categories: ‘good’ women
and ‘bad’ women. Men (fathers/fathers-in-law/husbands/brothers/sons) are seen as
the protectors/disciplinarians of ‘good women’ who must perform the role of obedient
daughters/daughters-in-law/wives/sisters/mothers. Any deviation from the behaviour
that is prescribed by men for ‘good women’ is seen as reason for men to exercise control
and punish ‘bad women’. Women themselves internalise these values to such an extent
that they never question who defines these values, on what basis and why? Women are
told and tell each other that it is not permissible for them to use violence even to protect
themselves; any sign of female protest marks her as a ‘bad woman’. In fact, most women
see it as their duty to bear violence in silence so as to preserve family ‘honour’.
As a result, you will find women might condone male violence by blaming the
woman’s character or wifely attributes. You might hear statements like: “She doesn’t look
after the house properly, so she deserves to be hit. She knows he likes hot food when he
comes home from work, so why doesn’t she keep it ready?” Or: “She spoke insultingly to
her in-laws and needed to be taught a lesson.” Or: “She is so stubborn (“bahut ziddi hai”);
how can they not hit her?”
• Property disputes often become the reason for escalating violence.
You will hear women say: “My brothers threw me out of the house after my father
died because they thought I’d ask for a share”. Or: “My sons beat me up after my husband
died because they wanted his house.” Or: “There was reason why my husband’s family
used to curse me after I got married; they thought I would alienate him from his family
and make him ask for a share in the property.”
• In yet another instance of cultural condoning, the perpetrator is presented as the
helpless innocent caught between antagonistic women and spurred on to violence
for which he cannot, therefore, be held responsible.
In this context, you might hear the aggrieved person say: “My father didn’t want to
raise his hand, but my mother told him he must discipline me.” Or: “My husband is actually
a very nice man, but my mother-in-law keeps telling him to put me in my place” (“usko
uksati rehti hae”).
2.4 Fatigue and Burnout among Protection Officers
People who work on the issue of domestic violence do find the job stressful and
exhausting and may experience fatigue and burnout. As a PO, you might experience the
same feelings as the women with whom you work, such as isolation, anger, sadness and
horror. Some of you might experience difficulty sleeping, eating and concentrating. You
may feel vulnerable, overwhelmed and powerless when faced with the challenging task of
helping women who are experiencing domestic violence.
34
Whenever you are in such a dilemma, you must remember that you are not alone
and can ask for help from your colleagues. You and your colleagues must:
• Develop an atmosphere of trust and support among yourselves. You must listen to
the needs expressed by others and develop a comfort level and provide a safe forum
for them to share their feelings, concerns, attitudes and beliefs.
• Ask for and attend as many training sessions as possible to help you build your
confidence in dealing with the practical, emotional and behavioural challenges of
working with domestic violence.
• Collaborate with each other and other PWDVA stakeholders to develop policies and
procedures for responding to domestic violence and for dealing with legal and other
emergencies. (For more on this, see Part 5.3 below.)
As your knowledge about domestic violence increases, you will be able to come to
terms with the intensity of feelings it generates. A clearer understanding of the complexity
of the situation will slowly emerge, as well as an increased respect for those living in
violent situations.
3 Building a Domestic Violence Response System
As mentioned earlier, the PWDVA recognises that women who face domestic
violence require multiple forms of support. Moreover, in order to have an efficient system
of administration of justice in domestic violence cases, all the stakeholders of the Act
(Protection Officers, Service Providers, police, judiciary, medical facilities, etc.) must
work in coordination with each other. Consequently, Part 5.3 describes the recommended
Domestic Violence Response System (DVRS), a collaborative, multi-agency initiative
designed to provide women efficient access to comprehensive options to counter domestic
violence. In order to describe this DVRS, Part 5.3 focuses on the individual roles of its
component agencies.
Section 11(c) can be interpreted to vest the responsibility of creating the DVRS on
the Central and State Governments. The following Sections and Rules delineate the PO’s
duties and role regarding the DVRS:
• Rule 8 (1)(xiii): Liaise between the aggrieved person, police and service providers.
• Rule 8 (1)(viii): Inform all Service Providers that their services may be required.
• Rule 8 (1)(ix) & (x): Scrutinise applications for appointment of counsellors; prepare
and keep updated a list of counsellors
• Rule 8 (1)(xiv) and Rule 11(4): Maintain a proper record of Service Providers,
medical facilities and shelter homes.
• Section 9(d) and Rule 8 (1)(v): Facilitate access to legal aid.
• Section 9(e): Maintain a list of all Service Providers providing legal aid.
• Section 9(f): Make available a safe shelter home.
• Section 9(g): Have the aggrieved person medically examined.
The PO must be aware of the following issues regarding the DVRS:
(i) The PWDVA envisages the PO as the focal point who will coordinate the DVRS.
(ii) In order to comply with her/his legal duties, the PO must urge the government to
formulate protocols for inter-departmental coordination.
(iii) Ultimately, the DVRS also helps the PO better fulfil her/his duties by allowing her/
35
him to rely on the assistance of DVRS partners who have wide experience of working
with women facing domestic violence.
As with DVRS initiatives across the world, local Indian DVRS models should aim to
rectify the institutions and practices that prevent women from receiving the full protection
of laws and social services. While DVRS partners may vary somewhat according to the
scope of a PO’s caseload, key partners for effective case resolution should include: police,
Service Providers, judges and judicial officers, court staff, prosecutors, legal aid advocates
from both community-based agencies and the District Legal Service Authorities, shelter
providers, medical facilities, other intervention programmes such as mental health and
substance abuse programmes, community development programmes, other appropriate
local government agencies, children’s services, advocates for children and school system
representatives. It should be noted that Magistrates may need to be consulted during the
process of planning the local DVRS. Their perspective is important in ensuring the due
process of law, protecting defendants’ rights and enabling the Court’s effective handling of
cases of domestic violence.
The media is also an essential part of efforts to promote awareness about domestic
violence and to inform the public about resources available for victims. As is well known,
the media plays a pivotal role in both influencing and changing social norms and behaviour.
In the area of domestic violence, media campaigns can help to reverse social attitudes that
tolerate violence against women by questioning patterns of violent behaviour accepted by
families and societies. A PO’s collaboration with the media needs to focus on creating new
messages and new responses to reduce domestic violence.
When assisting the government to develop the DVRS, a PO should first determine
whether there is an existing domestic violence coalition that may encompass some of the
necessary agencies. Wherever possible, such existing efforts should be built upon. If this
is not feasible, the aim should be to start with representatives from essential agencies
and build outward as the collaboration develops. Since this work in itself can be quite
intensive and detailed, it may require the creation a smaller working group willing and
able to focus on the task of creating the DVRS.
In order for the DVRS to function smoothly, its partnerships and protocols must
not rely on particular individuals, but should be institutionalised into formal procedures,
memoranda of understanding and job descriptions. In addition, the DVRS should be
designed to be flexible and evolve with changing circumstances and needs. Once the system
has been set up, it is useful to conduct a periodic review of its strengths and weaknesses
so as to regularly fine-tune its functioning.
The DVRS works by integrating into a well-organised and accessible structure
information and services that are usually spread out across various agencies. When these
resources are not integrated, stakeholders might overlook crucial factors that influence a
case, the aggrieved person might find it a challenge to access the full range of legal options
and non-legal services available to her and, finally, scarce resources and overburdened
systems are not managed efficiently to maximise their potential.
For Example
A Court deciding on a custody matter needs to know of the parties’ prior
records, including criminal, family and civil court actions. Such information
is a part of the goal of strengthening the system in keeping victims and their
children safe and holding offenders accountable. A DVRS that facilitates the
coordinated sharing of information would be helpful in this case because:
36
(i) Knowing prior background – a history of restraining orders, for
example – provides everybody with the most information possible
to make informed decisions.
(ii) All stakeholders involved can follow-up on the progress of a case:
POs can find out about the status of orders and relief/s granted;
Service Providers can estimate the length of the term of provision of
service; all concerned authorities can promptly learn of violations,
so that they may respond quickly and reduce the risk of harm to the
victim or her children.
(iii) The aggrieved person is also able to keep authorities aware of
relevant developing information on the case.
However, accessibility to and sharing of information must be balanced with the
imperatives of confidentiality and safety. Not all information should be available to every
DVRS partner and a protocol must be established to deal with differing standards of proof
and evidentiary issues that may exist.
Finally, consistent with the overall purpose of the PWDVA, all DVRS partners must
be educated on the dynamics of domestic violence and the characteristics of effective
interventions. These partners must also be educated about each other’s roles and
responsibilities, in order to work together effectively.
3.1 Role of the Police
Although the PWDVA introduces the institutions of the Protection Officers and
Service Providers, as per Section 36 of the Act, these are intended to supplement, rather
than supplant, existing mechanisms. The police, in particular, continue to play a pivotal
role in exercising their powers and fulfilling duties under the existing criminal law regime.
As per the Act, the police are required to render the following forms of assistance:
(i) When approached by an aggrieved person, Section 5 mandates the police to inform
her about her rights under the Act, including the right to make application/s for
legal relief/s; and about the availability of POs, SPs and free legal aid. The police is
also required to inform the aggrieved person of her right to record a DIR and refer
her to the PO.
(ii) If an aggrieved person approaches the police with a complaint of domestic violence
and the facts disclose the commission of a cognisable offence under the IPC, Section
5 of the PWDVA requires that the police officer register an FIR or an NCR and
undertake an investigation in accordance with the procedure prescribed in law. This
mandatory duty of the police is also provided for in Section 154, CrPC and leaves the
police officer with no discretion in the matter.
In fact, Section 5 of the PWDVA provides that an aggrieved person shall have the
right to file a complaint under Section 498A, IPC (cruelty by husband or relatives
of the husband) simultaneously with any complaint filed under the PWDVA.8 Other
cognizable offences that might be implicated in cases of domestic violence and for
which the police must take action, include grievous hurt (Section 322, IPC), wrongful
confinement (Section 340, IPC), assault or criminal force to wrongfully confine a
8 Because offences under Section 498A, IPC are cognisable, an FIR should be registered by the police in all cases where
a woman complains of facing cruelty within her marriage. However, if the ordinary protocol or procedure followed by the
police does not allow for immediate registration of an FIR, the aggrieved person must be given an option of pursuing either
civil or criminal proceedings. In case, she opts to pursue civil proceedings, she must then be referred to the PO for record-
ing a DIR under the PWDVA.
37
person (Section 357, IPC), assault or criminal force to women with intent to outrage
her modesty (Section 354, IPC), rape (Section 375, IPC) and dowry death (Section
304B, IPC). Remember: aggrieved persons are not limited to choosing to proceed
either under the PWDVA or under the IPC; rather, they may proceed under both
simultaneously.
(iii) The police should refer the aggrieved woman to a PO or SP for recording DIR if the
aggrieved woman so desires. However, if she does not want to initiate any legal
proceedings, she should be advised to record a DIR in any case as it creates a record
of domestic violence and does not automatically lead to any legal proceedings.
(iv) Specific instructions to the police pertaining to the preparation of DIRs are contained
in Clause 8 of Form I according to which the police officer must:
(a) Inform the aggrieved person that she can also initiate criminal proceedings by
lodging a FIR when the facts disclose the commission of an offence.
(b) Make a daily diary entry with the remark that the aggrieved person wishes
to pursue civil remedies if the woman does not want to initiate criminal
proceedings and record that the matter has been kept pending for appropriate
enquiry before registration of a FIR.
(c) Offer immediate medical assistance if the aggrieved person reports any physical
injury and thereafter arrange for the woman to be medically examined.
(v) The police must assist and accompany the PO in emergency situations.9
(vi) The police must assist the PO in the enforcement of orders passed by the Court.10
(vii) If an order for monetary relief has been issued, the Magistrate must send a copy to
the local police station. This keeps the police in the informational loop and permits
police supervisors to schedule staff to assist the aggrieved person and POs in
enforcing the order.11
(viii) If a Court’s civil order is violated, the police must follow the ordinary criminal law
procedure in conducting the arrest and producing the arrestee before the Magistrate.
The police are one of the most important agencies of the criminal justice system.
They are the certainly most visible part of the system: the only agency that operates
twenty four hours a day, seven days a week, covering every locality, free of charge. They
are often the first (institutional) port of call for victims of violence.
However, it has been observed that unless the situation is life-threatening, women
and their family members prefer to resolve issues within the family or the community.
Their first, and sometimes only, concern is that the violence should stop or, at least, stay
within bearable limits. That is why they are often reluctant to take part in any process
requiring the authorities, whether they are the police or the courts or, even, POs. There
is also a fear of the police due to known cases of malpractice and brutality. Many women
and their families do not trust the police to conduct investigations honestly or behave
impartially.
Finally, there is the notion that going to the police will bring disrepute to the family.
For example, women might say: “Please don’t tell us to go to the police station. It’ll bring
disgrace to the family” or “If I have to live with the man, how can I drag him and his family
9 Rule 9
10 Sections 19(5) and (7)
11 Section 20(4)
38
to the police station?” or “Nobody in my community will speak to me if I approach the
police”.
To complicate matters, the police system is rife with prejudices of its own when it
comes to the issue of domestic violence. These stereotypical attitudes about women and
their place in family/community/society (which were discussed in Part 5.2 above) affect
how police officers respond to cases of domestic violence. POs will often hear the following
comments from the police: “The PWDVA does not mention any specific role for us”;
“Domestic violence is a private, family matter and caused by women who cannot adjust to
the proper norms governing their behaviour”; “We cannot act on non-cognisable matters
and, besides, we have real police work to attend to”; “Domestic violence cases are a waste
of time because women change their minds or don’t follow our advice or misuse the law”;
“Families shouldn’t break, so we should counsel the parties to settle the matter quietly: we
can scold the men and warn the women of the consequences of filing complaints”.
As a PO, you will often be in the difficult position of dealing with the misconceptions
of both aggrieved persons and their families on the one hand, and the police and other
DVRS partners on the other.12 It is your responsibility to clarify these misconceptions and
educate all parties concerned in order to realise the Act’s goal of providing women a life
free of domestic violence. The quality of the DVRS collaborations you establish will play an
important role in this regard.
There has been some confusion regarding the role of the police, especially in
those jurisdictions in which POs have not yet been appointed or where the
number of existing POs is not sufficient. Many remote and rural areas continue
to have the police as the principal, or even only, resource for domestic violence
victims seeking recourse to the law. In general, Courts should not hesitate to
empower the police to assist with the orderly administration of the PWDVA
whenever doing so is helpful, provided that doing so does not unnecessarily
overburden the police.
3.2 Role of Service Providers
As per Section 10(2) of the PWDVA, Service Providers registered under the Act
shall have the power to:
(a) Record the Domestic Incident Report in the prescribed form if the
aggrieved person so desires and forward a copy thereof to the Magistrate
and the Protection Officer having jurisdiction in the area where the
domestic violence took place;
(b) Get the aggrieved person medically examined and forward a copy of the
medical report to the Protection Officer and the police station within the
local limits of which the domestic violence took place;
(c) Ensure that the aggrieved person is provided shelter in a shelter home,
if she so requires, and forward a report of the lodging of the aggrieved
person in the shelter home to the police station within the local limits of
which the domestic violence took place.
As per Section 10(1) of the PWDVA, to be recognized as Service Providers
(SPs) under the Act, voluntary associations must follow a two-step registration
procedure:
12 For instance, the medical profession is also frequently biased against recognising the physical and psychological effects of
domestic violence as a legitimate health issue. Unfortunately, the judiciary is not exempt from this bias either. In fact, it is
precisely this institutionalised bias that prompted the creation of the PWDVA in the first place and that explains the opposi-
tion the Act encounters in its implementation on the ground.
39
(i) The voluntary association must already be registered under the Societies
Registration Act, 1860 or the Companies Act, 1956 or “any other law”.
“Any other law” includes Trusts under the state Public Trusts Acts.
(ii) The voluntary association must register as a Service Provider under the
PWDVA with the state government.
The PWDVR elaborate upon registration procedures for SPs. Any registered voluntary
organization eligible under Section 10(1) of the Act that wishes to render aid as an SP shall
make an application under Section 10(1).13 The candidate organization should complete
Form VI and submit it to the State Government. After making inquires and satisfying
itself that the applicant is suitable, the State Government will register the organization
as an SP under the PWDVA and issue an appropriate certificate of such registration.14 An
application cannot be rejected without giving the applicant an opportunity to be heard.
Rule 11(3) specifies the eligibility criteria for registration of Service Providers. The
eligibility criteria are based on the kinds of services being rendered by the applicant. Form
VI provides further details on the nature of services that must be provided by applicants.
The candidate organisation should have been rendering the kind of services it is offering
as an SP under the PWDVA for at least three years before the date of application for PWDVA
SP registration. Broadly, the kinds of services envisaged under the law are as follows:
• Running a medical facility,15 psychiatric counselling centre or vocational training
institution.
The State Government shall ensure that the candidate fulfils the requirements
for running such a facility or institution laid down by the respective regulatory
authorities regulating the respective professions or institutions.
• Running a shelter home, in which case the government is required to inspect whether
it has the following:16
• Whether there is adequate space in the shelter home
• Measured area of the entire premises
• Number of rooms
• Area of rooms
• Details of security arrangements available
• Whether a record is available for the maintenance of a functional telephone
connection for the use of inmates for the last three years
• Distance of the nearest dispensary/clinic/medical facility
• Medical professionals available, either on site or on call
• Whether any arrangement is in place for regular visits by a medical professional
• Other facilities available to be specified
• In case of a counselling centre, the registering authority must inspect the facility
and record details pertaining to the number of counsellors, their qualification and
experience and the type of counselling provided. The report should also address
13 Rule 11(1)
14 Rule 11(2)
15 Please note that a registered Service Provider running a medical facility should not be confused with a medical facility
notified under the Act. The role of the notified medical facility is explained under Section 7 of the PWDVA read with Rule 17
of the PWDVR.
16 Similarly, note that a registered Service Provider running a shelter home is not to be confused with a shelter home notified
under the Act. The role of notified shelter homes has been detailed under Section 6 of the PWDVA read with Rule 16.
40
the type of facilities provided, such as professional counselling sessions, safe
environment to discuss problems and express emotions, information on counselling
services, support groups and mental health care resources, etc.
Although organisations that have not registered as SPs under the PWDVA can continue
to provide services to women facing domestic violence, registered SPs are exempt from
liability for action taken in good faith under the Act.
How is the Court Assisted by Service Providers? What Directions can the
Court Give to Service Providers?
• Service Providers are empowered to record the DIR and forward it to the
Magistrate in connection with applications under Section 12 of the Act.
• Service Providers can be counsellors.
• Service Providers can be welfare experts under Section 15 of the Act.
• When an aggrieved person directly approaches the Court to file an
application for relief/s and the Court feels that she needs support services,
the Magistrate can refer her to any of the SPs in the list maintained for
this purpose by POs.
• SPs that are unable to provide services may refer domestic violence
victims to other organisations, even if the other organisations are not
registered under the Act. This saves the Court the trouble of having to
direct the PO to look for an appropriate organisation and helps the victim
receive aid as soon as possible.
• The Court may direct the SP to ensure the safety and security of a woman
and her children.
3.3 Role of Shelter Homes
Section 2(t) of the Act defines “shelter homes” to mean shelter homes notified by the
state Government for the purposes of this Act. The manner of issuing such notification is
to be determined by the respective State Government.
As per Section 6 of the PWDVA, if an aggrieved person or, on her behalf, a Protection
Officer or a Service Provider requests the person in charge of a notified shelter home to
provide shelter to her, such person in charge of the shelter home shall provide shelter to
the aggrieved person in the shelter home.
Rule 16 of the PWDVR further clarifies that although it is preferable that a request
for shelter made by the Protection Officer or Service Provider, on behalf of the aggrieved
person, be made in writing (so that a copy can be appended to a DIR, if one is prepared),
a written request is not required. Further, shelter cannot be withheld on the ground that
a DIR has not been filed. As per Rule 16(3), if the aggrieved person so desires, the shelter
home should not disclose the identity of the aggrieved person, except to the Court.
If the notified shelter home does not currently have the capacity or resources
to provide shelter, it can refer the aggrieved person to any other shelter home
having adequate capacity. Where there is a pending application under Section
12 of the PWDVA, the Court should be informed of such referral.
3.4 Role of Medical Facilities
Medical facilities are defined under Section 2(j) of the PWDVA to mean a facility that
is notified by the State Government as a medical facility for the purposes of this Act.
41
As per Section 7 of the PWDVA, if an aggrieved person or, on her behalf, a Protection
Officer or Service Provider requests the person in charge of a medical facility to provide
any medical aid to her, such person-in-charge of the medical facility shall provide such
medical aid to the aggrieved person in the medical facility.
Rule 17 provides further details on the manner in which request for medical
assistance ought to be made. Although the request for medical aid should, preferably, be
made by the aggrieved person or the Protection Officer or the Service Provider in writing,
an oral request must be honoured too. A medical facility cannot refuse medical assistance
to an aggrieved person on account of her not having lodged a DIR prior to making a
request for medical assistance or examination. As per Rule 17(4) of the PWDVR, a copy of
the medical examination report shall be provided to the aggrieved person by the medical
facility free of cost.
Rule 17 also empowers notified medical facilities to record DIRs based on complaints
made by aggrieved persons. If no DIR has been filed prior to the request for medical aid,
the person-in-charge of the medical facility must complete Form I and forward the same
to the concerned PO.
As with the police and judiciary, medical professionals too can be biased against
complaints of domestic violence. For instance, doctors may be sceptical about the
truthfulness of women’s accounts of violence. As with other implementing agencies under
the PWDVA, medical professionals also need training and sensitisation in how to recognise
symptoms of domestic violence and provide appropriate medical assistance.
Moreover, doctors, nurses and emergency room workers may often see and treat
women who do not or cannot seek other kinds of assistance. In this case, coordinated
programmes such as the DVRS might help to create a network of support for such women
and their families.
3.5 Role of Legal Services Authorities
Section 5 of the PWDVA mandates the PO to ensure that an aggrieved person is
informed of her right to free legal aid, as per the Legal Services Authorities Act, 1987.
Section 9 mandates the PO to ensure that the aggrieved person is provided such aid.
Section 12(c) of the Legal Services Authority Act mandates State Legal Service Authorities
to provide free and competent legal aid to women. They are also authorised to organise
legal awareness programmes to sensitise people about their legal rights; to impart legal
literacy through print and electronic media; and to conduct workshops and seminars for
imparting legal training to empanelled advocates, POs, NGOs, police, doctors, etc.
3.6 Role of Counsellors
The psychological and emotional harm caused by domestic violence can be substantial
and continue long after a Court has issued relief. But Court intervention should not be the
only remedy available to women facing domestic violence. Counselling should be available
too. It may be difficult for a woman facing domestic violence to take an informed and well-
thought out decision as to her current circumstances and future course of action all by
herself. Counselling aims to help a woman recognise and evaluate her own specific needs,
thereby enabling her to take the first steps towards informed decision-making.
The PWDVA does not contain any explicit provisions on pre-litigation counselling,
except to state that it is the duty of the PO to maintain a list of counsellors available in her/
his jurisdiction to whom she/ he can refer any aggrieved person who desires counselling
services (Section 9 of the PWDVA and Rule 8 of the PWDVR).
42
However, the Act does contain detailed provisions on court-mandated counselling,
beginning with Section 14(1) which states that, “The Magistrate may, at any stage of the
proceedings under this Act, direct the respondent or the aggrieved person, either singly
or jointly, to undergo counselling with any member of a service provider who possesses
such qualifications and experience in counselling as may be prescribed”.17 As per the Act,
counselling may be undertaken with the aggrieved person alone, the respondent alone or
jointly with both parties.
The purpose of providing such detailed guidelines in the law is to recognise domestic
violence as a human rights violation that merits a comprehensive legal/institutional
response rather than treating it merely as an ‘internal family matter’ that can be settled
through informal mediation that could effect forced reconciliation. Under the PWDVA,
counselling is recognised as an arena of technical proficiency, mandated to be conducted
by professionals, in conditions that enable and focus on the woman’s human rights and,
as per Rule 14(3), only upon the furnishing of certain undertakings by the respondent
that ensure there will be no future acts of violence. Finally, settlements must be attempted
only if the aggrieved person so desires. As a civil law, the PWDVA does allow space for
negotiations between the parties, an option that is not available under criminal law. Given
this allowance, the provisions on counselling are intended to ensure that all negotiations
are entered into keeping in mind the objective of the law: i.e., a woman’s right to a violence-
free home. The counselling process must respect the woman’s agency and ensure that any
settlements concluded are done so with the woman’s free and informed consent and aim
to create a violence-free home.
When counselling is conducted by lay people, there is a significant risk that the
process followed and results achieved do not respect a woman’s agency and fall short of
basic human rights standards. If PO’s conduct counselling themselves, an added concern
of an explicitly legal nature arises from the duality of their role: namely, that in the pre-
litigation stage, the role of the PO is to assist the aggrieved woman; but in the post-litigation
stage, the PO is deemed to be an officer of the Court and assists the Court in discharging
its functions. Pre-litigation counselling by a PO can create a potential conflict of interest
vis-à-vis her/his position as an officer of the Court.
The remainder of Part 5.3.6 addresses the specific and limited duties of the PO with
regard to counsellors. As per Section 9 and Rule 8 mentioned earlier, the PO is responsible
for maintaining a list of Service Providers, including counsellors, in her/his jurisdiction. In
order to maintain such a list, the PO must:
• Invite applications from SPs seeking particulars of the professionals whom they
wish to register as counsellors under the Act.
• Inspect all the applications and forward a confirmed and formalised list of available
counsellorsto all the concerned agencies, especially the Magistrate.
• Ensure that the list is current by regularly updating it every three years and duly
forwarding the updated list to all the concerned agencies, especially the Magistrate.
We suggest the following guidelines to POs regarding the appointment of counsellors:
• Counsellors must be qualified professionals.
• Counsellors must have experience with cases of domestic violence and have
knowledge of the psychosocial theories associated with the issues of domestic
violence and its historical and political significance.
43
• Counsellors must have an understanding of the PWDVA and of the basic court
procedures in which they are participating.
• Counsellors must be aware of how to create settlements and undertakings that will
be enduring and admissible in court.
• Both the counsellor and the counselling centre need to be easily accessible and safe
for the woman.
• Counsellors must be able to network with other SPs so as to provide the aggrieved
person comprehensive assistance.
• Counsellors must have an established system of recording and maintaining
documentation on cases.
• Counsellors must either already have or be willing to build a system of monitoring
and evaluation of their work.
• Counsellors must have expressly stated ethics and should not be affiliated to any
parties, political, religious or otherwise.
Once the Court has mandated counselling, the counsellor works under the general
supervision of the Court or PO or both. Rule 14 of the PWDVR describes in detail the
procedures to be followed by counsellors.
Finally, we must distinguish between some commonly misused terms. Although
the PWDVR do not refer to mediation, joint counselling, which is akin to mediation, is
appropriate in cases where the parties are desirous of a mediated settlement. However,
just as an aggrieved person should not be compelled to undertake single counselling
against her will, the Court should not direct joint counselling if the woman objects.
Joint counselling is not the same as reconciliation. Prevailing understandings of
counselling within legal discourse often focus on reconciliation between the parties,
particularly with regard to matrimonial and family disputes. Unfortunately, counselling
has come to be identified with settlement and reconciliation. The terms are different.
Counselling is the process whereby those counselled attempt to come to terms with their
experiences and plan accordingly. A settlement is an agreement between parties to resolve
a dispute. And, in matrimonial matters, reconciliation usually means that the husband and
wife have begun to live peacefully as spouses once again. Regardless of the term used, the
goal is to avoid having the woman return to a violent home.
There is a practice in some states that all cases under Section 498A, IPC are automatically
referred for reconciliation, even before filing an FIR. Often the police refuse to take any
action unless a counselling attempt, often supervised by the police themselves, fails. The
practice is a poor one because it fails to empower the victim.
Moreover, a PO or counsellor should never attempt reconciliation of a couple as a crisis
management technique. The safety of the victim should take precedence over all other
steps taken during the crisis period. Close coordination between all protective services
agencies (the police, the courts, legal aid and specialist NGOs, including shelter providers
and medical facilities), is vital for the woman to remain safe. This goal takes priority over
family reunification or the resolution of ‘relationship issues,’ and should be the foundation
on which all treatment decisions, like counselling, are made.
44
How to Record a Domestic Incident Report

All complaints of domestic violence received by the Protection Officer have to be
recorded as a Domestic Incident Report (DIR). The format of the DIR is provided in Form
I of the PWDVR. This Chapter begins with an explanation of what the DIR is and then
provides details on how information is to be recorded under each of the Form’s seven
major items. In so doing, This Chapter also provides information on how the substantive
provisions of the PWDVA are to be understood.
Chapter Outline
1 What is a Domestic Incident Report? 67

2 Details of the Complainant/Aggrieved Person 68
3 Details of the Respondent 71
4 Details of Children 72
5 Incidents of Domestic Violence 72
5.1 General Definition of Domestic Violence 73
5.2 Physical Abuse 76
5.3 Sexual Abuse 78
5.4 Verbal and Emotional Abuse 80
5.5 Economic Abuse 83
5.6 Dowry-Related Harassment 86
5.7 Other Forms of Abuse 87
6. List of Documents to be Attached 88
7. Orders 90
8. Assistance Required by the Aggrieved Person 91
9. Other Important Guidelines to Completing the Domestic Incident Report
92
10. The Role of the Police in Recording the Domestic Incident Report 93
11. What is to be Done after the Domestic Incident Report is Recorded 94
1 What is a Domestic Incident Report?
Section 2(e) of the PWDVA defines a Domestic Incident Report (DIR) as a “report
made in the prescribed form on the receipt of a complaint of domestic violence from
an aggrieved person”. Form I of the PWDVR is the prescribed form referred to in this
definition. It provides a simple, clear and convenient format for recording incidents of
domestic violence.
A DIR is somewhat similar to an FIR recorded under criminal law, as it is a public
record of a complaint. A Protection Officer is obliged to record a DIR on receiving a
complaint of domestic violence.1
The DIR is to be filled and signed by the aggrieved person and countersigned by the
PO.
Role of the Protection Officer vis-à-vis the Recording of a DIR
1 Rule 5(1)
45
A PO has to assist the aggrieved person in filling in the DIR, particularly in cases
where the aggrieved person is either illiterate or incapacitated in any manner. In such
cases, the PO, after filling in the DIR, must explain its content to the aggrieved person
before obtaining her thumb impression or her signature, as the case may be. The PO must
also give the original copy of the DIR to the aggrieved person, free of cost, on all occasions.
In cases where the aggrieved person is able to fill in the DIR by herself, it is advisable
for the PO to counsel her on the content of the DIR and the manner in which information
is to be recorded, prior to her filling in the DIR.
A DIR is meant to be a faithful record of the complaint presented and is not a report
of an investigation.
The PO need not conduct any enquiries at the time of recording the DIR. However,
the PO must ensure that the DIR is completed with care and precision and accompanied
by all relevant supporting documents.2
The recording of a DIR does not trigger any judicial or investigative processes, as
it is merely a public record of a complaint of domestic violence. Judicial processes are
commenced only if the aggrieved person so desires. In order to initiate a judicial process,
an application under Section 12 has to be filed in Court.3The DIR is to be attached to any
such application filed.
Even if the aggrieved person chooses not to file an application, the PO has to forward
copies of all DIRs recorded to the Magistrate within whose jurisdiction the alleged act of
domestic violence has occurred.4
A Magistrate has to consider any DIRs received from a PO before passing any Orders
under the PWDVA. The Magistrate may, therefore, need to consider not only the DIR that is
filed along with the application, but also those DIRs that may have been forwarded by the
PO on earlier occasion/s. As a public record of an incident of domestic violence, the DIR
constitutes valuable evidence of past incidents of domestic violence.
If she so chooses, an aggrieved person may directly approach the Court with an
application under Section 12, without a DIR. In such cases, the Magistrate may direct
the PO to record a DIR and file it in Court if the application does not provide adequate
details or if a DIR has not been recorded and forwarded to the Magistrate on any previous
occasion/s. In certain cases, where the Magistrate may not feel the need for a DIR, he/she
may proceed with the case without one.
Registered Service Providers (SPs)5 and notified medical facilities6 are also allowed
to receive complaints of domestic violence and record DIRs. In such cases, both SPs and
medical facilities will have to forward a copy of the DIR to the PO.
A DIR should be recorded whenever an aggrieved person approaches a PO with a
complaint of domestic violence, even in those cases where the aggrieved person does not
wish to file an application under the PWDVA.
An aggrieved person may, if she chooses, record a separate DIR for each distinct
incident of domestic violence.
2 Details of the Complainant/Aggrieved Person
[Form I : Item 1]
2 For the list of documents to be attached to the DIR, see Part 6.6
3 For details on the filing of applications, see next Chapter.
4 Rule 5(1)
5 Section 10(2)(a)
6 Rule 17(3)
46
FORM I
1. Details of the complainant/aggrieved person
(1) Name of the complainant/aggrieved person
(2) Age
(3) Address of the shared household
(4) Present Address
(5) Phone number, if any
An aggrieved person can file a complaint under the PWDVA. Section 2(e) of the PWDVA
defines “aggrieved person” as: “Any woman who is, or has been, in a domestic relationship
with the respondent and any woman 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[.]”(Emphasis added)
A woman who complains of an act of domestic violence must meet two requirements:
(i) That she is or has been in a domestic relationship with the respondent;
and
(ii) That the respondent has subjected her to act/s of domestic violence.
The second requirement is discussed in Part 6.5 below. The first requirement is
discussed here. As defined in Section 2(f), a domestic relationship is the relationship
between two persons who live or have lived together in a shared household.
The broad definition provided in Section 2(f) covers all forms of relationships within
the household such as:
(i) Consanguine or blood relationships (such as grandfather-granddaughter, father-
daughter, brother-sister relationships, etc.), where the parties are living together in
the same house, i.e., the shared household.
(ii) Marital relationships or relationships in the nature of marriage. The term “marriage”
refers to legally valid marriages. The term “relationships in the nature of marriage”
includes:
(a) Relationships of cohabitation or live-in relationships.
(b) Relationships between a man and a woman that have elements of a marital
relationship but do not meet the requirements of legal validity, such as void7 or
voidable8 marriages, customary marriages9 and common law marriages.10
(iii) Adoptive relationships
(iv) Family members living together as a joint family. The term “joint family” is typically
understood to mean the Hindu Undivided Family (HUF). However, in the PWDVA,
the term is not restricted to the HUF and, instead, is used more broadly to cover any
family members living in the shared household. This category includes relationships
7 “Void” or null marriages are those that have no legal effect, i.e., it is as if the marriage had not existed at all. Family laws
of each community enlist grounds on which a marriage may be considered void. An example would be if one of the parties
was insane or incapable of giving consent at the time of marriage.
8 “Voidable” marriages are valid until annulled. Such marriages can be either affirmed or rejected at the option of one of the
parties. A voidable marriage is valid as long as one of the parties does not apply for its annulment.
9 Customary marriages are those which are performed in accordance with customary or traditional or tribal practices/norms.
Such marriages are not strictly legal in nature. An example of such a marriage is a nata relationship, a practice common in
Himachal Pradesh.
10 Individuals who have lived together for a substantial period of time and who represent to the world that they are married
can be said to be in a common law marriage.
47
between uncles and nieces, cousins, etc., as long as they live together in the same
house, i.e., in the shared household.
By including relationships in the nature of marriage in its definition of a
domestic relationship, the PWDVA does not recognise or legitimise bigamous
marriage, as this law operates in addition to other laws, including those laws
that penalise bigamous marriage. The intent of the PWDVA’s inclusive definition
is to remedy domestic violence faced in all forms of domestic relationships.
Women aggrieved by bigamous marriage may pursue remedies available under
other criminal or civil laws.
Divorced women can also file complaints for acts of domestic violence. It must be
understood that divorce does not always entail an end to domestic violence. In some
cases, divorce can even intensify violence directed towards the ex-wife. Although the
legal bond may be broken, often an emotional one remains. Further, in a large number of
cases, women are effectively compelled to give up custody, maintenance and other rights
in order to escape a violent home. However, while a divorced woman can complain under
the PWDVA, the nature of reliefs to which she is entitled to will depend upon the terms of
settlement entered into at the time of her obtaining her divorce.
The shared household has been defined in Section 2(s) to mean the residence where
the aggrieved person lives or has lived with the respondent in a domestic relationship.
The use of the term “has lived” in the shared household in the definition of “domestic
relationship” brings within its ambit those women who have been illegally dispossessed
from the shared household. However, it excludes from its ambit women who visit houses
of relatives, as short or temporary visits cannot be equated with living on the premises.
Aggrieved persons who have not lived in a shared household or who lived in a shared
household but did not do so in a domestic relationship are not eligible for relief under the
PWDVA.
Shared households may include households:
(i) That are owned or tenanted either jointly by the aggrieved person and the respondent,
or by either of them.
(ii) Where the aggrieved person or the respondent or both have any right, title, interest
or equity, either singly or jointly.
(iii) Which may belong to the joint family of which the respondent is a member,
irrespective of whether either the aggrieved person or the respondent has any right,
title or interest in the household.
(iv) Which are allocated to the respondent as an employee, such as company
accommodation or government accommodation, provided that the aggrieved person
and respondent reside in those premises in a domestic relationship.
Court Interpretations of the Definition of “Shared Household”
In a recent judgment of the High Court of Madras in Vandana v Mrs Jayanthi
Krishnamachari and others [(2007) 6 MLJ 205 (Mad)], a broad interpretation
was given to the definition of “shared household”. In this case, the respondent
husband contested the right of his aggrieved wife to reside in the shared
household on the grounds that the parties had not “lived together” in the shared
household even for a single day after their marriage. The Court, upholding the
right of the aggrieved wife to reside, held that she had a de jure (substantive
48
right) right to live in the shared household because of her status as a wife in a
domestic relationship.
In Batra v Batra [1 (2007) DMC 1 SC], the Supreme Court of India held that an
aggrieved wife has the right to reside in the shared household, which meant a
house belonging to or taken on rent by the husband, or a house which belongs
to the joint family of which the husband is a member. However, in this case,
the couple lived together in the matrimonial home belonging to the husband’s
mother. The husband subsequently moved to separate rented premises. Hence
the Court held that the aggrieved wife did not have a right to reside in the
matrimonial home as the husband was residing on separate premises.
Court Interpretations of the Definition of “Shared Household” (con’t.)
Following the Supreme Court’s judgment in the above case, the High Court of
Madras in P Babu v Rani [Crl. R.C. Nos. 48 and 148 of 2008 and M.P. Nos. 1 of
2008] took note of the fact that after the dispute arose between the parties, the
respondent husband alienated the shared household in favour of his mother
to the detriment of the aggrieved wife. Because the respondent husband had
acted deliberately to deny the aggrieved wife her rights under the PWDVA, the
Court upheld the right of the aggrieved wife to the shared household despite
it being legally owned by the mother-in-law. The effect of this judgment is that
in cases where the respondent husband has taken separate premises, there is
need to confirm that this was done in good faith and not to frustrate the rights
of the aggrieved wife.
For detailed information and analysis of case law, see LCWRI’s Handbook on
Law of Domestic Violence
3 Details of the Respondent
[Form I : Item 2]
FORM I
2. Detail of Respondents:
S.No. Name Relationship with Address Telephone No., If
the Aggrieved person any
The definition of respondent provided in Section 2(q) of the PWDVA includes:

(i) Any adult male who is or has been a domestic relationship with the aggrieved person.
For example: fathers, husbands, brothers, uncles (both maternal and paternal),
male partners and men living in a relationship in the nature of a marriage with the
aggrieved person.
(ii) Any relative of the husband or the male partner. This covers all relatives of the
husband/male partner, including female relatives. For example: the husband/male
partner’s father, mother, sister, etc.
Female relatives of a male respondent can be respondents, just as they can be
prosecuted as members of the husband’s family under Section 498A, IPC. However,
complaints against any females who are not related to the husband or the male partner
cannot be filed under the PWDVA. For instance, a daughter cannot record a complaint
49
solely against her mother. Similarly, a mother-in-law cannot record a complaint against
her daughter-in-law (whereas a daughter-in-law can record a complaint against her
mother-in-law). However, in such cases, aggrieved persons can record a complaint against
the father or the son for abetting acts of violence perpetrated either by the mother or the
daughter-in-law by failing to prevent the commission of such acts.
At the time of filling in this item, it is advisable to record the address of the
respondent’s residence as well as his office address and contact details.
4 Details of Children
[Form I : Item 3]
FORM I
3. Details of children, if any, of the aggrieved person:
(a) Number of Children:
(b) Details of children:
Name Age Sex With whom at Present residing
The details of the children of the aggrieved person have to be filled in under this
item. If the aggrieved person has children, then it is essential that each child be mentioned,
beginning with the eldest, along with other details as required in the Form. This information
is especially needed in cases where the aggrieved person is desirous of obtaining either
maintenance or temporary custody orders.
In Section 2(b), the PWDVA defines “child” to mean any person below the age of
eighteen and includes in its definition adopted, step and foster children of the aggrieved
person.
If the aggrieved person does not have any children, then “N.A.” (Not Applicable) is to
be entered in Item 3 of Form I.
5 Incidents of Domestic Violence
[Form I : Item 4]
In order to ensure that information in this item is recorded accurately, a Protection
Officer must have an understanding of the definition of domestic violence provided in
Section 3 of the PWDVA.11
Section 3 begins with a general description of the acts that constitute violence and
then itemises and explains different forms of abuse, which may be physical, sexual, verbal
and emotional or economic in nature. Please note: this listing is for illustrative purposes
11 The PWDVA derives its definition of domestic violence from the United Nations Model Legislation on domestic violence.
This Model Legislation was passed by the United Nations Commission on Human Rights 1996. The Model Legislation
provides comprehensive guidelines for states in drafting domestic violence laws. The PWDVA consciously complies with
the Model Legislation’s standards. According to the Model Legislation, “All acts of gender-based physical, psychological
and sexual abuse by a family member against women in the family, ranging from simple assaults to aggravated physical
battery, kidnapping, threats, intimidation, coercion, stalking, humiliating verbal abuse, forcible or unlawful entry, arson, de-
struction of property, sexual violence, marital rape, dowry or bride-price related violence, female genital mutilation, violence
related to exploitation through prostitution, violence against household workers and attempts to commit such acts shall be
termed ‘domestic violence’”.
50
and is not an exhaustive one. Item 4 of Form I allows for the convenient recording of
domestic violence by listing examples of each form of abuse in Column 4.
No Form can include an exhaustive list of the manifold ways in which violence is
perpetrated. Hence, Column 5 of Item 4 allows for the recording of “Remarks” should an
aggrieved person wish to provide further information on the specific form and nature of
abuse faced. Further, if the aggrieved person is unable to provide accurate details on the
nature of abuse faced by filling in details required under Item 4, she can append additional
sheets to the DIR to provide details on the exact nature of and circumstances in which she
faced domestic violence.
5.1 General Definition of Domestic Violence
The manifestations and consequences of domestic violence vary widely. Domestic
violence may result in physical injury, even death, and may cause devastating mental injury
and psychological impairment. In view of such grave consequences, the PWDVA defines
“domestic violence” expansively to include all acts of commission as well as omission
that either harm or injure or endanger the health, safety, life, limb or well-being of the
aggrieved person.
The concepts of “harm,”12 “injury”13 and “endangerment,”14 although derived from tort
law, should be accorded their ordinary meaning, bearing in mind that the broad purpose
of the PWDVA is to safeguard women from actual or threatened domestic violence.
It is not necessary that the aggrieved person suffer actual harm or injury; any act
that either endangers or threatens to endanger the health, safety or well-being of the
victim also constitutes domestic violence. The PWDVA’s definition of domestic violence
also includes threat of abuse and behaviour that tends to harm or injure. A threat of injury,
even when the injury does not occur, invariably results in mental and emotional distress
and itself constitutes mental and emotional abuse.
Thus, Section 3 of the PWDVA is comprised of four independent components:
(i) Sub-section (a), which sweepingly addresses behaviour that “harms or injures or
endangers the health, safety, life, limb or well-being” of the aggrieved person.
(ii) Sub-section (b), which addresses behaviour undertaken to unlawfully obtain dowry
or any other property.
(iii) Sub-section (c) which specifies that the threat to undertake behaviour in either
subsection (a) or (b) is itself domestic violence.
(iv) Sub-section (d), which is the broadest provision, encompasses any other behaviour
that injures or causes harm to the aggrieved person.
The concept of human dignity underlies each of the component parts of the definition.
Any conduct that violates a woman’s dignity thereby causing injury will constitute
“domestic violence”.
After enlisting the forms of conduct that result in domestic violence, Explanation II
of Section 3 specifies that, “for the purposes of determining whether any act, omission,
commission or conduct of the respondent constitutes domestic violence, the overall facts
and circumstances of the case shall be taken into consideration.” Hence the emphasis is on
12 “Harm” means injury, loss or damage.
13 “Injury” is a wrong or an injustice that demeans another’s dignity. It is a legally redressable violation of another person’s
rights.
14 “Endangerment” is the act of putting something or someone in danger. Endangerment may arise either as an affirmative or
deliberate act (i.e., actively putting someone or something in danger) or as a passive act (i.e., by neglecting or refusing to
do something).
51
the nature of injuries/harm sustained by the aggrieved person due to the acts of domestic
violence.
Since the PWDVA is a civil law, when the Courts determine whether or not an act
results in injury/ harm that amounts to domestic violence under the Act, they assess the
evidence on a standard of “balance of probabilities,” which is a lower standard than the
“proof beyond reasonable doubt” standard required in criminal law.15
The Table below provides examples of all forms of abuse or violence listed under
Section 3 of the PWDVA.
Illustrations of different forms of violence
Physical Violence Sexual Verbal Abuse Economic Dowry
Violence & Emotional Violence related
harassment
• Punching • Forced sexual • Accusation/ • Not providing • demands
• Bashing/ intercourse. aspersion on money for for dowry
Banging her head • Forced your character maintaining made, please
against walls or to watch or conduct, etc. you or your specify
other objects pornography • Insult for not children. • Any other
• Choking/shaking or other bringing dowry, • Not providing details with
obsence etc. food, clothes, regard to
• Slapping dowry, please
material • Insult for not medicine, etc.,
• Pinching • Forcibly having a male for you or your specify.
• Kicking using you child. children.
• Hitting with to entertain • Insult for not • Forcing you
anything others having any out of the house
• Any other child. you live in.
• Biting
act of sexual • Demeaning, • Preventing
• Burning with a
cigarette/ iron/
nature, humiliating or you from
abusing, undermining accessing or
oven/ setting on
humiliaging, remarks/ using any part
fire
degrading statement. of the house.
• Throwing things or otherwise
• Ridicule. • Preventing or
in general or at violative of obstructing you
her Strangling your dignity • Name calling. from carrying
(please specify • Forcing you on your
tetails in the to not attend employment.
space provided school, college
below): or any other
educational
institution.
15 The scale of “balance of probabilities” is used in civil law. In using this scale, the decision of the Court is based on which
of the two competing claims is most likely to have happened. On the other hand, decisions in criminal law are based on
“proof beyond reasonable doubt”, wherein no reasonable person can have any doubt on what actually occurred.
52
Illustrations of different forms of violence

Physical Violence Sexual Verbal Abuse Economic Dowry
Violence & Emotional Violence related
harassment
• Strangling • Preventing • Not allowing
• Pushing in you from taking you to take up
general or against up a job. an employment.
walls and other • Forcing you • Non-payment
objects/pushing to get married of rent in case
under water etc. against your of a rented
• Pulling hair will. accommodation
• Spitting or • Preventing • Not allowing
peeing on the you from you to use
victim leaving the clothes or
house. articles of
• Tying her up/ general
tying her hands • Preventing
you from household use.
behind her back,
etc. meeting any • Selling or
particular pawing your
• Being held down person. stridhan or any
• Locking up in a • Preventing other valuables
cupboard or closet you from without
• Threatening/ marrying a informing you
Attacking with a person of your and without
knife, gun, belt, or choice. your consent.
any other kind of • Forcing you to • Forcibly
weapon/forcing marry a person taking away
her tohurt herself of his/their your salary,
own choice. income or
wages etc.
• Any other
verbal or • Disposing
emotional your stridhan
abuse. (please • Non-payment
specify in the of other
space provide bills such as
below) electricity, etc.
• Any other
economic
violence (please
specify in the
space provided
below)
53
`5.2 Physical Abuse
FORM I
4. Incidents of domestic violence
Person who Types of violence
S. Date, place and
Caused Domestic Remarks
No. Time of violence Physical violence
Violence
Causing hurt of
any kind,
Please specify
Explanation I (i) of Section 3 defines “physical abuse” or violence as any conduct that:
(i) Causes bodily pain or harm, or
(ii) Endangers life, limb or health, or
(iii) Impairs the aggrieved person’s health or development.
This provision also includes assault, criminal intimidation and the use of criminal
force as examples of conduct amounting to physical abuse. The examples provided are
meant to be illustrative rather than exhaustive.
Physical violence is the most obvious type of domestic violence. Some examples of
physical abuse are:
• Beating
• Slapping
• Hitting
• Biting
• Strangulation
• Punching
• Kicking
• Pushing
• Shoving
• Forcibly evicting a person from their residence
• Use of tools or weapons to inflict physical harm
• Other acts which may result in fear, injury or even death.
Evident symptoms of physical violence may include visible scars of injuries sustained
or injuries that are untended and/or have healed poorly due to the lack of attention.
Common type of injuries include:
• Contusions, abrasions and minor lacerations, as well as fractures and sprains
• Injuries to the head, neck and chest
• Injuries during pregnancy
• Multiple sites of injuries
• Repeated or chronic injuries
54
• Chronic pain, may also include psychogenic pain (psychologically induced pain,
normally non-specific in nature), or pain due to diffuse trauma without physical
evidence
• Sexually transmitted diseases
• Damage to sexual organs and anus (this is often a sign/consequence of sexual
violence and lack of control over the sexual relationship)
Fifty percent of women who were physically abused, reported violence during
their pregnancy.
[Source : Domestic Violence in India: A Summary Report of a Multi-Site Household
Survey. Washington, D.C.: International Center for Research on Women. 2003.]
5.3 Sexual Abuse
FORM I
4. Incidents of violence
(i) Sexual violence
Please tick mark (√ ) in the column applicable
• Forced sexual
intercourse.
• Forced to watch
pornography or
other obsence
material
• Forcibly using you
to entertain others
• Any other
act of sexual
nature, abusing,
humiliaging,
degrading or
otherwise violative
of your dignity
(please specify
tetails in the space
provided below):
Around the world, 1 in 3 women have been beaten, coerced into sex, or
otherwise abused in their lifetime. Most often, the abuser is a member of her
own family.
[Source : Heise, Lori; Mary Ellsberg; Megan Gottemoeller. Ending Violence
Against Women. Population Reports, Series L, No. 11. Baltimore: Johns Hopkins
University School of Public Health, Population Information Program. 1999.]
Explanation I(ii) of Section 3 states that, “sexual abuse includes any conduct of a
sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of a
woman.” (Emphasis added)
This broad definition is not merely limited to rape or acts of penetration, but also
includes all acts that are sexual in nature which cause an affront to the aggrieved person’s
55
dignity. This inclusive definition is a legislative first in India. It takes into account the fact
that sexual violence ranges from the perpetrator of violence treating the victim as a sexual
object to actual rape (regardless of marital status). It may manifest in violent behaviour,
like forcing sex, physical attack to sexual organs, coercion to participate in unwanted
sexual activities (such as having sex in front of children) or behaviour that is degrading to
the person’s sense of dignity.
Sexual abuse means all non-consenting sexual encounters or encounters within the
family in which someone is either pressured, coerced (expressly or through implication)
or forced into sexual activity. If one of the persons is under 16 years of age and a child,
foster child, step-child, grandchild, nephew or niece of the other person, it is assumed
that they cannot give valid consent and, thus, sexual activity involving them constitutes
violence under any circumstances.
Sexual violence includes behaviour such as forced fondling, fellatio or cunnilingus,
anal or vaginal penetration or sexual violence on children in the family and female genital
mutilation. It can also include exploitation through forcing someone to have photographs
or films taken of a sexual nature or being shown such films or photographs, or by forcing
someone into prostitution.
Particularly relevant to the discussion of domestic violence is the category of
“battering rapes” as a form of marital rape, where the sexual assault occurs in combination
with physical beatings and psychological abuse. Research indicates that men who both
batter and rape are more likely to severely injure or kill their wives. However, even today,
such sexual assault by a husband or an intimate partner is not considered a crime in most
countries, and women in many societies do not consider forced sex as rape if they are
married to or cohabiting with the perpetrator. The assumption is that once a woman
enters into a contract of marriage, the husband has the right to unlimited sexual access
to his wife. This thinking is also reflected in the Section 375 of the IPC, which does not
recognise marital rape as an offence.
Lack of control over the choices made within the sexual relationship may also be
counted as violence as it may lead to the woman having little or no voice in the matter
of contraception and reproduction and may lead to her contracting sexually transmitted
diseases. Studies have shown that abused women are more likely to have a history of
sexually transmitted diseases and vaginal and cervical infections.
However, there are other forms of “sex-specific” violence where the sexual assault
is not accompanied by physical assault, but rather is seen as a main form of coercion by
which the partner is victimised. The amount of physical violence used is just enough to
coerce the victim into having sex and appears to be motivated primarily by a desire to
overpower and control the victim. In many of these cases, the brutality or coercion is based
on the perpetrator believing that he has the right to have sex with his spouse or partner
on his own terms. It is important to remember that when a woman ‘consents’ to have sex
because she fears violent retribution upon her refusal, then her ‘consent’ is actually not
consent at all, but the result of coercion. In these cases, the perpetrator has committed an
act of abuse.
A different type of marital rape to watch out for, which is perpetrated by individuals
with deviant sexual arousal patterns, typically involves obsessive forced sex. Here victims
are required to have an extraordinary number of sexual encounters or to have sex as a
form of sadistic, brutal or perverse behaviour. Once again, without a woman’s freely-given
consent, the act becomes abusive in nature.
56
5.4 Verbal and Emotional Abuse
In a study, 40.3 percent of women surveyed reported physical abuse by their partners
and 43.5 percent reported psychological abuse, i.e. violence that is not physical in nature.16
However, psychological violence is insidious and is harder to capture in quantitative
studies.
FORM I
1. Incident of domestic violence
(ii) Verbal and Emotional Abuse
• Accusation/as-
persion on your
charcter or conduct,
etc.
• Insult for not
bringing dowry, etc.
• Insult for not
having a male child.
Insult for not having
any child.
• Demeaning,
humiliating or
undermining
remarks/statement.
• Ridicule.
• Name calling
• Forcing you to
not attend school,
college or any
other educational
institution.
• Preventing you
from taking up a job.
• Forcing you to get
married against
your will.
• Preventing you
from leaving the
house.
16 Source : Domestic Violence in India: A Summary Report of a Multi-Site Household Survey. Washington, D.C.: International
Center for Research on Women. 2003.
57
• Preventing you
from meeting any
particular person.
• Preventing you
from marrying
a person of your
choice.
• Forcing you to
marry a person
of his/their own
choice.
• Any other verbal
or emotional abuse.
(please specify in
the space provide
below)
Explanation I(iii) of Section 3 of the PWDVA defines verbal and emotional abuse to include:
(i) Insults, ridicule, humiliation, name calling or ridicule specially with regard to not
having a child or a male child.
(ii) Repeated threats to cause physical harm to any person in whom the aggrieved
person is interested.
Form I also enlists different forms of conduct that constitute verbal and emotional
abuse. In both cases, the examples cited are illustrative rather than exhaustive.
Although included as a single category, “verbal” abuse and “emotional” abuse are
distinctly different concepts, which may not occur simultaneously. Emotional abuse, for
example, may occur without any accompanying verbal abuse (for instance: ostracism), yet
both may be harmful and deserving of legal protection.
This form of violence has many different dimensions: it may include anything from
isolation of the victim, to threatening violence, stalking, destroying property, kidnapping
and using other forms of intimidation. Whether manifested as name calling, ridiculing,
threatening, humiliation, manipulation through lies and mind-games or using other forms
of verbal abuse, verbal and emotional violence is a systematic and purposeful form of
degradation of the victim.
Name calling is not trivial; it erodes the victim’s self-esteem and often leads to
greater isolation.
Verbal and emotional abuse can be seen in verbal statements or acts that result in
the destruction of the victim’s self-esteem. The abusive partner exercises control or power
over the victim who, over time, feels deserving of the abuse, worthless and insecure,
becomes overly dependent on the abuser and is afraid of being abandoned by him.
A common form of this violence of which to take note appears in relationships
where violence has occurred in the past. In these cases, emotional violence takes the
form of repeated threats, which can cause strong fear and uncertainty. This “psychological
battering” is particularly disabling because the victim is unable to foresee if or when
violence might occur and in what form. Her anticipatory anxiety resulting from threats
58
can be as excruciating as the violence itself. Often, therefore, victims will say that ongoing
emotional violence – emotional torture and living in constant terror – is more unbearable
than physical brutality. Such mental stress also leads to a high incidence of suicide attempts
and suicide.
Emotional abuse may also take the form of isolating the victim in an effort to control
her environment. Such isolating actions include: cutting the victim off from family, friends
and other relationships, belittling the victim’s family and friends, restricting freedom of
movement and preventing the victim from discussing violence problems with anyone. A
victim who is isolated is more likely to believe what the perpetrator says about herself
and the world. Isolation deprives the victim of support and perspective, making it difficult
for her even to recognise the violence for what it is, and, thus, reinforces the perpetrator’s
emotional control over her.
The perpetrator may also intimidate the victim by making repeated threats against
her children, family and friends. He could threaten to kill her or her loved ones, kidnap
her children, make her lose her job, expose things about which she may be ashamed, etc.
He could instil fear through looks, gestures and actions; for example: smashing objects,
destroying property, placing himself between the victim and an escape route, etc.
In addition, the perpetrator may threaten to commit suicide, holding the victim
responsible. Often such threats increase when the victim is leaving the relationship.
Threats to Take Away Children
Threats to take away the children are not idle ones. Courts often give custody to
perpetrators of the violence. Many victims return to stay with the perpetrators
rather than risk losing their children.
Destruction of Property
Aware of the fact that the victim may be fearful of leaving all of the family’s
possessions at home where the perpetrator has access to them, perpetrators
often destroy items belonging to the victim, such as family heirlooms or gifts
from someone the victim cares about. The perpetrator may also break down
doors, tear out phones, put holes in walls, destroy the children’s toys and other
family belongings.
Injury to Pets
Knowing that pets are a source of comfort to the victim and her children,
the perpetrator might kill or threaten to kill family pets. Fear of what the
perpetrator might do often makes the victim hesitant to leave, since, in most
cases, pets must be left behind and can become another tool the perpetrator
uses to intimidate and coerce the victim.
5.5 Economic Abuse
FORM I
4. Incident of domestic violence:
(iii) Economic violence
59
• Not providing money for

maintaining you or your
children.
• Not providing food, clothes,
medicine, etc., for you or your
children.
• Forcing you out of the house
you live in.
• Preventing you from accessing
or using any part of the house.
• Preventing or obstructing
you from carrying on your
employment.
• Not allowing you to take up an
employment.
• Non-payment of rent in case of
a rented accommodation
• Not allowing you to use clothes
or articles of general household
use.
• Selling or pawing your
stridhan or any other valuables
without informing you and
without your consent.
• Forcibly taking away your
salary, income or wages etc.
• Disposing your stridhan
• Non-payment of other bills
such as electricity, etc.
• Any other economic violence
(please specify in the space
provided below)
Explanation 1(iv) of Section 3 of the PWDVA and Form I of the PWDVR set out a
(non)exhaustive list of types of economic abuse that constitute domestic violence. At the
crux of this list is the denial of basic entitlements and necessities.
There are several ways in which a perpetrator exerts control over the victim: in
Part 5.4 above, we discussed the different ways in which a perpetrator tries to control
the victim’s environment by physically and emotionally isolating her from friends and
family. Here we discuss how a perpetrator can control a victim by withholding access to
economic resources and, thus, constraining the woman’s ability to control her life.
Economic violence can take many forms. It may involve an individual in the family
controlling all the money, making the victim beg for every little thing and account for any
money spent. Or the perpetrator could deny the victim access to the money she herself
earns outside the house, her own bank account or her stridhan, making the victim
60
routinely ask for money for every necessity like vegetables or medicine. The perpetrator
might forbid the woman from working outside the home, thus removing any source of
independent income. Or he might force her out of the house, not allow her to use clothes
or articles of household use or demand dowry (about which more in 5.6 below).
This is a very effective way control a woman because she is denied all the basic
resources she needs to survive. However, the actual process used by the perpetrator may
be much more subtle: the perpetrator might even seem gracious and gallant. For instance,
he might claim that working outside the home or handling finances is not a woman’s
‘natural role’ and that it is, in fact, his ‘duty’ to ‘take care’ of the woman.
5.6 Dowry-Related Harassment
FORM I
(iv) Dowry related harassment
• demands for
dowry made, please
specify
• Any other details
with regard to
dowry, please
specify.
• Whether details
of dowry items,
stridhan, etc.
attached with the
form
• Yes
• No
Section 3(b) defines domestic violence in the context of dowry-related harassment
and other unlawful demands for property or valuable security: any conduct by the
respondent that “harasses, harms, injures or endangers the aggrieved person with a view
to coerce her or any other person related to her to meet any unlawful demand for any
dowry, or other property or valuable security” amounts to domestic violence.
In this definition, the term “related to” means members of the aggrieved person’s
natal family and her guardians. Thus, in this context, a respondent who harasses an
aggrieved person in order to coerce the aggrieved person’s family member into meeting
an unlawful dowry demand has committed domestic violence.
Principles laid down by the Courts under Sections 498A IPC, Section 304B IPC and
the Dowry Prohibition Act are relevant in understanding the meaning of Section 3(b).17
17 For information on these related provisions, see Chapter 3 and Annexure III.
61
5.7 Other Forms of Abuse
FORM I
(v) Any other information regarding the acts of domestic violence
against you or your children
In recognition of the impossibility of creating a format that can list each of the
innumerable ways in which domestic violence is manifested, Form I provides space for
recording specific forms of violence that cannot be categorised under any of the entries
discussed in Parts 5.2 - 5.6 above.
The provision of this space also corresponds to Sub-section (d) and Explanation II
contained in Section 3 of the PWDVA. Section 3(d) deems any conduct that, “otherwise
injures or causes harm, whether physical or mental, to the aggrieved person” to constitute
domestic violence. Explanation II specifies that, “for the purpose of determining whether
any act, omission or commission or conduct of the respondent constitutes domestic
violence, the overall facts and circumstances of the case shall be taken into consideration”.
Domestic violence occurs in an almost infinite variety of ways and this space in Form I is
designed to record additional or specific complaints that may not be captured while filling
in details under the other entries.
If an aggrieved person is unable to provide information in the format provided
in Form I, she can provide descriptions and details of the domestic violence faced on
additional sheets that can be attached to the DIR.
6 List of Documents to be Attached
FORM I
5. List of documents attached
Name of document Date Any other detail
Medico-legal certificate
Doctor’s certificate or any other prescription
List of stridhan
Any other document
As mentioned earlier, the DIR is a public record of a complaint. In order to ensure
that the DIR is complete, a Protection Officer must ask the aggrieved person for relevant
documentation to be put on record. For this limited purpose, the PO may conduct enquiries
to ensure that all relevant documents are brought on record. These documents constitute
crucial evidence if the aggrieved person subsequently opts to file an application for reliefs.
Please note: the documents mentioned under this Item, while relevant, are not a
pre-requisite for recording a DIR. Hence, an aggrieved person can record a DIR even if she
unable to provide any relevant documents.
Under this Item, the date and details of the documents attached to the DIR are to
be recorded. The documents mentioned in the Form are self-explanatory. The aggrieved
62
person may also include other documentation and record its details under the heading
“any other documents”.
Documents that can be attached to a DIR can be divided into three broad categories:
(i) Documents that are needed to prove domestic violence:
(a) Medico-Legal Certificate
(b) All documents/certificates issued by any treating medical doctor pertaining to
the relevant act/s of domestic violence or which record injuries sustained as a
result of domestic violence.
(c) All documents issued by a mental health professional pertaining to the
aggrieved person’s psychological status.
(d) Any First Information Report (FIR) or Non-cognisable [Offence] Report (NCR)
alleging domestic violence previously registered by the aggrieved person.
(e) Copies of complaints received by any other authorities that the aggrieved
person may have approached for assistance. For example: complaint letters
to the respondent’s employer, petitions submitted to panchayats or other
adjudicatory bodies alleging domestic violence, petitions filed before the State
Commission for Women or other statutory bodies alleging domestic violence.
(f) Correspondence between the aggrieved person and other family members
in which she records incidents of domestic violence. It is important that such
correspondence be dated. If the correspondence is through email, then the
date automatically appears on the mail. However, if the correspondence is
through post it is advisable to ask for the envelope that bears the postal stamp
documenting the date of the correspondence.
(ii) List of stridhan articles. Stridhan refers to any property that is given to the woman
during the time of her marriage (either before the marriage – i.e., during engagement
festivities, etc. – or during it or after – for festivals, etc.) or has been left to her by her
parents, siblings, in-laws, friends (of either party) and relatives (of either party).
(iii) Documents that are needed to support claims for relief under the PWDVA:
(a) To prove a domestic relationship, particularly matrimonial relationships:
• Ration card
• Passport
• Photograph with mangal sutra
• Invitation cards of the wedding
• Bills of the marriage hall
• Photographs or video recordings of the marriage
• Certificate from the temple or priest who performed the marriage
(b) To provide a basis for claiming remedies under the law and for proving the
aggrieved person’s standard of living:
• All documents relating to joint bank accounts, salary statements, rent
receipts, bills and other pertinent financial matters such as pay slips of the
respondent, income tax returns, bank papers, share or bond certificates,
receipts for significant purchases.
63
• All documents of tuition fees and other expenses of children.
7 Orders
FORM I
6. Order that you need under the Protection of Women from Domestic Violence Act,
2005.
S.No. Orders Yes/No Any other
(1) Protection order under section 18
(2) Residence order under section 19
(3) Maintenance order under section 20
(4) Custody order under section 21
(5) Compensation order under section 22
(6) Any other order (specify)
Under this Item, the nature of relief required from Court is recorded. If an aggrieved
person indicates that she requires Court-ordered relief, then an application under Section
12 in Form II must be filed.
The orders that can be obtained from Court are provided in Sections 18-22 of the
PWDVA. Each of these Sections is further divided into sub-sections that allow the Court
to grant specific orders to meet the aggrieved person’s requirements.18 For example, if an
aggrieved person is apprehensive of further violence being inflicted by the respondent,
she may seek an order under Section 19(b) directing the respondent to remove himself
from the shared household.
The third column in this Item can be used to provide details on the specific order
that the aggrieved person is seeking. This may also include supplementary details to
ensure the enforcement of the order. For instance, the aggrieved person may seek police
assistance to ensure that a respondent is removed from the shared household in an order
under Section 19(b).
In order to fill in the DIR accurately, the aggrieved person must have knowledge of
the legal remedies available under the PWDVA. Under Section 5 of the Act, the PO is duty-
bound to provide information on such legal remedies.
While this Item is being completed, the PO must ensure that the orders sought are
in consonance with the provisions of the PWDVA. The PO may also suggest appropriate
remedies that meet with the aggrieved person’s specific requirements. It is advisable to
be specific on the nature of remedies sought. For instance, if the respondent is harassing
the aggrieved person with repeated phone calls, an order restraining the respondent from
contacting the aggrieved person should be specifically sought as part of the protection
order. This aspect must be borne in mind particularly with regard to protection orders, as
the breach of a protection order is an offence under Section 31 of the Act.
18 For further details on orders that can be sought under the PWDVA, see Chapter 7.
64
8 Assistance Required by the Aggrieved Person
FORM I
7. Assistance that you need
S.No. Assistance available Yes/No Nature of assistance
(1) (2) (3) (4)
(1) Counsellor
(2) Police assistance
(3) Assistance for initiating criminal
proceeding
(4) Shelter Home
(5) Medical Facilities
(6) Legal aid
Recognising that an aggrieved person may require various kinds of assistance that
are not limited to the provision of legal aid, the DIR allows for the recording of the nature
of assistance sought. Once this is recorded, the PO must facilitate the aggrieved person’s
access to appropriate components of the Domestic Violence Response System.19
As mentioned in Chapter 5, notified shelter homes and medical facilities are obligated
to provide shelter or medical services to an aggrieved person on a request made by the PO.
In case the aggrieved person seeks shelter or medical services, a Protection Officer must,
in accordance with Rules 16 and 17, make such a request in writing and attach a copy of
the DIR to the written request.
Even if a DIR is not recorded, a medical facility or a shelter home cannot deny services
to the aggrieved person on a request made by the PO.20
If a request is made to a medical facility without an accompanying DIR, the person-
in-charge of the medical facility may fill in the DIR and forward a copy of the same to the
PO of the jurisdiction.21
Domestic Incident Report: Key Points
• While registering the DIR, as far as possible, the aggrieved person should
furnish all the details of domestic violence.
• The DIR can be recorded by a Protection Officer, a registered Service
Provider or a medical facility.
• A woman may file a separate DIR for each act of domestic violence visited
upon her.
• A DIR can be recorded where the incident of domestic violence occurred
or where the aggrieved person resides/works.
• Recording the DIR does not automatically trigger judicial processes;
these must be requested by the aggrieved person.
• Authenticated copies of prior DIRs may have evidentiary value in
subsequent cases.
19 For further details on the Domestic Violence Response System, see Chapter 5.
20 Proviso to Rules 16(2) and 17(2)
21 Rule 17(2)
65
• A DIR might be useful to the aggrieved person in accessing other forms
of support services.
9 Other Important Guidelines to Completing the Domestic Incident Report
If the matter reaches Court, the Court shall rely on the DIR as it is meant to be an
authentic public record of the aggrieved person’s complaint. It is, therefore, essential to
ensure that a DIR is recorded with care and precision and, preferably, supported with all
relevant documents.
Protection Officers must not act on information received anonymously as it is not
authentic information. All information received by the PO must be reduced to writing and
signed by the informant. In cases of emergency, a PO may, on the receipt of information
from a reliable source, visit the place of occurrence of violence, along with a police officer,
to record a DIR before initiating any legal action.22
It may happen that while filling the DIR, the aggrieved woman may not disclose all
the information. Therefore, the PO should first counsel the aggrieved person on how to fill
in the DIR with all the essential details. The PO can also verify the information by asking
straightforward questions, as discussed in Chapter 5 (Part 5.2.2).
It is also possible that when an aggrieved person first approaches the PO, she may be
too disturbed or traumatised to complete the DIR accurately. In such cases, the PO should
use this first meeting to inform the aggrieved person of her rights and remedies under the
law and facilitate her access to support services. The PO can then call her back at a later
time when she is in a better frame of mind to record the DIR.
A PO must distinguish between information that is incomplete and that which
is contradicting. While incomplete information can be completed at a later stage, new
episodes cannot be invented without basis, as this gives rise to contradictions.
However, when adding further information to a previously incomplete DIR, it is
advisable to do so on a new DIR. The PO can explain the two DIRs by pointing to the
aggrieved person’s traumatised state of mind at her first visit, which affected the
information she was able to provide on her original DIR.
In those cases where the aggrieved person approaches the Court directly, whereupon
the Court directs the PO to record and submit a DIR, the PO must refer to the application
filed by the aggrieved person to ensure that the information recorded in the DIR is
consistent.
The PO must also take utmost take care that no new submission is made in an
application filed in Court that is not already mentioned in the DIR, unless there is
documentation to prove the same.
Separate DIRs can also be recorded if the aggrieved person alleges new facts or
episodes of violence. This can be done even if the application has already been filed in
Court.
Best Practice : The Domestic Incident Report Index
The PWDVA furthers the desirable goal of developing and maintaining
comprehensive, state-wide records by requiring DIRs recorded by POs to be
forwarded to the local police and Courts.
The practice adopted by the police in Andhra Pradesh, in association with the
state Department of Women and Child, takes this idea further. There, police
22 Rule 9
66
authorities have established a Domestic Incident Report Index which includes
all DIRs recorded throughout the state and tracks their status in a standard
format.
On registration of the DIR, a “Domestic Incident Report Number” is assigned to
each complaint by the responsible PO. After the DIR is forwarded to Court and,
upon the filing of Form II, the Magistrate assigns a “Domestic Violence Case
Number”. DIRs, DIR Numbers, and Domestic Violence Case Numbers, as well
all other pertinent information, are maintained in the Index. To more closely
monitor the status of both individual cases and the overall picture, authorities
envision a “Domestic Incident Report Abstract” from which a system-wide
“Quarterly Abstract” can be prepared and made available to all implementing
agencies.
10 The Role of the Police in Recording the DIR
FORM I (8)
8. Instruction for the Police Officer assisting in registration of a Domestic
Incident Report:
Wherever the information provided in this Form discloses an offence
under the Indian Penal Code or any other law, the Police Officer shall-
(a) inform the aggrieved person that she can also initiate criminal
proceedings by lodging a First Information Report under the Code
of Criminal Procedure, 1973 (2 of 1974).
(b) if the aggrieved person does not want to initiate criminal
proceedings, then make daily diary entry as per the information
contained in the domestic incident report with a remark that the
aggrieved person due to the intimate nature of the relationship
with the accused wants to pursue the civil remedies for protection
against domestic violence and has requested that on the basis of
the information received by her, the matter has been kept pending
for appropriate enquiry before registration of an FIR.
(c) if any physical injury or pain being reported by the aggrieved
person, offer immediate medical assistance and get the aggrieved
person medically examined.
The last Item of the DIR enlists the duties of the police. Although the PWDVA
recognizes POs and SPs as the appropriate authorities for recording the DIR, the police
are also likely to receive complaints of domestic violence.
Pursuant to Section 5 of the PWDVA, a police officer receiving a complaint of domestic
violence is under a statutory duty to inform the aggrieved person of her rights under the
PWDVA and of the availability of the services of POs, SPs and free legal services.
If the complaint discloses a cognisable offence, particularly an offence under Section
498A of the IPC, the police must inform the aggrieved person of her right to register an
FIR and should conduct investigations as warranted. In those cases where the aggrieved
person does not want to initiate criminal proceedings and chooses to pursue civil remedies
instead, the police is required to record the complaint as a “daily diary entry” in the manner
provided in the DIR.
67
In all instances, the police should refer the aggrieved person to a PO or SP for
recording the DIR and taking further action.
11 What is to be done after the DIR is Recorded
After recording the DIR and ensuring that the documentation is complete, the
Protection Officer must:
(i) Provide the original DIR to the aggrieved person.
(ii) Forward a copy of the DIR to the officer-in-charge of the police station of the
jurisdiction within which the domestic violence has occurred.
(iii) Forward a copy of the DIR to the registered Service Provider in the jurisdiction.
(iv) Forward a copy of the DIR to the Magistrate in whose jurisdiction the domestic
violence has occurred.
In cases where the DIR reveals a cognisable offence, but the PO forwards it to
the Magistrate without an application for reliefs, the Magistrate may initiate
suo moto action.
(v) It is advisable for the PO to retain a copy of the DIR recorded for her/his own
records.
qqq
68
How to File an Application in Court

Under Section 12 of the PWDVA, an aggrieved person can present an application for
relief/s to the Court. The same Section also allows a Protection Officer or any other person
to file an application for relief/s on behalf of the aggrieved person. The law provides that
it is the duty of the PO to make the application to the Magistrate for orders under the
PWDVA, if the aggrieved person so requires. The format for preparing an application is
provided in Form II of the PWDVR. The format for preparing an affidavit seeking Interim
Orders is provided in Form III of the PWDVR. This Chapter provides information on the
manner in which an aggrieved person may approach the Court and on how to complete
Forms II and III. In so doing, this Chapter also provides information on the substantive law
on orders and relief/s under the PWDVA.
Chapter Outline
1 Who Can File an Application?
2 How Can an Aggrieved Person Approach the Court?
3 Role of the Protection Officer in Filing an Application in Court
4 General Aspects of Applications Filed in Court
4.1 Format for Filing Applications
4.2 When Can an Application Be Filed?
4.3 Where Can an Application Be Filed?
5 Orders that May Be Sought from the Court
5.1 Protection Orders
5.2 Residence Orders
5.2.1 Background: The Right to Reside
5.2.2 Residence Orders: Specific Details
5.3 Additional Orders that Can Be Sought to Ensure the Enforcement of
Protection and Residence Orders
5.4 Regaining Possession of Stridhan
5.5 Monetary Orders
5.5.1 Payment for Losses and Expenses Incurred as a Consequence
of Domestic Violence
5.5.2 Maintenance
5.5.3 Quantum of Monetary Relief
5.6 Custody Orders
5.7 Compensation Orders
6 Other Details to be Completed in Form II
7 How to Obtain Interim Orders
1 Who Can File an Application?
Under Section 12 of the PWDVA, an aggrieved person can present an application for
relief/s under the PWDVA to a Magistrate. An aggrieved person1 is a woman who:
1 Section 2(a). Also see Section 2(f). For further details on the definitions of “aggrieved person,” “domestic relationship,”
“shared household” and “respondent”, see Chapter How to Record a Domestic Incident Report.
69
(i) Is or has been in a domestic relationship with the respondent;
and
(ii) Alleges that the respondent has perpetrated domestic violence on her.
In general, the PWDVA permits only women to bring claims.2 A PO or any other
person may also present an application on behalf of the aggrieved person or a child3 who
has been subject to domestic violence.
Protection of Children
Adults are not the only victims of domestic violence. Children may also be
affected, whether at the hands of an abusive father or male relative or simply by
experiencing the emotional trauma of witnessing the mother being subjected
to domestic violence within the home.
A mother can bring an application on behalf of herself and a child in a domestic
relationship on the ground that violence towards the child is also resulting in
emotional and mental abuse to her. If the mother is unwilling, for any reason,
to file an application for relief/s on behalf of the child, a Protection Officer may
take suo moto action and file on behalf of the child.
Can Abused Domestic Workers File an Application under the PWDVA?
No. Domestic workers who are abused by their employers are not covered
under the PWDVA.
The definition of “aggrieved person” is restricted to women who are or have
been in a domestic relationship with the respondent. “Domestic relationship”
is limited under Section 2(f) to relations of marriage, consanguinity, adoption,
joint families or relationships in the nature of marriage. Domestic workers,
who do not fall within the ambit of any of these relationships, are not protected
by the Act.
However, domestic workers who have been subjected to violence may still use
provisions constituting offences in the Indian Penal Code like hurt, grievous
hurt, assault, criminal intimidation, and/or sexual harassment, among others.
2 How Can an Aggrieved Person Approach the Court?
The PWDVA provides multiple options to the aggrieved person to approach the
Court, as discussed below.
• Option 1
(i) The aggrieved person approaches the Court directly, by filing an application
either by herself or by engaging a lawyer.4
(ii) As per Section 26, another possibility is that the aggrieved person files an
application, in any Court, for relief/s under the PWDVA in a pending legal
proceeding that affects the rights of the aggrieved person and the respondent.
This may be in ongoing cases of divorce, maintenance or custody in a civil or a
family court or in criminal cases under Section 498A or other provisions of the
2 “Woman” is not defined under the PWDVA, but should be understood to mean any female, including those under the age
of 18. A female under the age of 18 should be permitted to bring an application under Section 12 of the Act through an
appointed guardian or a Protection Officer. Section 18(c) of the Act, which covers Protection Orders, mentions children in
its reference to aggrieved persons.
3 Section 2(b) of the PWDVA defines “child” in a gender-neutral manner to include all male or female persons under the age
of 18 and also includes any adopted child, stepchild or foster child.
4 In Milan Kumar Singh v State of UP [(2007) Cri LJ 4742], the Allahabad High Court held that an aggrieved person may
directly approach the Magistrate without having to approach a Protection Officer first.
70
IPC, etc. This provision has been included to avoid multiplicity of proceedings
and to facilitate an aggrieved person’s access to Court.
In both the above instances, the aggrieved person may file the application after
getting a DIR recorded by a PO or SP. A copy of the DIR would be submitted along with the
application. An aggrieved person may also file an application without an accompanying
DIR. In such cases, the Court may direct the PO to record and submit a DIR, particularly if
the application filed by the aggrieved person is inadequate in any manner.
• Option 2
The Protection Officer may file an application on behalf of the aggrieved person. The
aggrieved person may approach the PO through any of the following means:
(i) An aggrieved person may directly approach the PO with a complaint of domestic
violence and with the intention of filing an application under the PWDVA.
(ii) An aggrieved person may approach the police with a complaint of domestic
violence. If, after receiving information from the police on her legal rights,
the aggrieved person is desirous of filing an application for relief/s under the
PWDVA, she will be referred to the PO for assistance in filing the application.
The police may initiate criminal proceedings simultaneously, if the case
warrants.
(iii) An aggrieved person may first approach a Service Provider. A SP may attempt
counselling both parties to bring about a resolution or compromise. If no
settlement is arrived at, the aggrieved person may be referred to the PO for
filing an application.
Please note: As per the law, registered SPs may record a DIR. All SPs, whether
registered or not, may also file an application on behalf of the aggrieved person.
(iv) An aggrieved person may approach either a shelter home or medical facility
for services. These facilities may refer the aggrieved person to the PO for filing
an application.
3 Role of the Protection Officer in Filing an Application in Court
The PO has a duty to assist an aggrieved person in preparing and filing an application
for relief/s under the PWDVA, if the aggrieved person requires such assistance.5 This duty
extends to assistance in obtaining all types of orders from the Court whether final or
interim.6 Once an application is filed, the PO may request the Court to arrange legal aid for
the aggrieved person or otherwise facilitate an aggrieved person’s access to legal aid.7
4 General Aspects of Applications Filed in Court
4.1 Format for Filing Applications
Form II of the PWDVR provides the format for the application for relief/s under the
PWDVA.8 Generally, lawyers are required to draft applications to be submitted in Courts.
However, Form II provides a simplified and straightforward version of such applications
that can be completed directly by the aggrieved person, POs and others without legal
qualifications. Form II elicits details of the alleged violence, the relief/s sought and other
information necessary for a Court to assess the merits of the application.
An aggrieved person may seek the assistance of a PO in preparing the application
5 Section 9(1)(c) and Rule 8(1)(iii)
6 Rule 8(1)(iii)
7 Section 9(1)(d) and Rule 8(1)(v)
8 Rule 6(1)
71
and submitting it to the concerned Magistrate.9 If the aggrieved person is illiterate, the PO
is required to read the application aloud and explain its contents to the aggrieved person.
Although Form II is the preferable format, it is not the only acceptable format and
information submitted in some other format may be acceptable to Courts as long as it
includes details on the alleged violence and a prayer for relief/s. However, it is advisable
that POs use Form II for filing applications in Court.
If the questions posed and the space provided in Form II do not allow for a sufficient
recording of the particulars, separate sheets may be used. These sheets should be appended
to the application submitted.
4.2 When Can an Application Be Filed?
Domestic violence often constitutes a cycle of acts manifested in various forms
over the course of time. It can be subtle or overt. On occasion it may be difficult to isolate
emotional harm from other kinds of violence faced by the aggrieved person. Though
physical abuse may cease, its long-term emotional and psychological effect may remain.
Domestic violence can be regarded as “continuing violence”. This is equivalent to the
concept of “continuing offence”: i.e., an offence that is not committed once and for all but,
rather, continues over time. For example:
• The aggrieved person left her shared household due to emotional and physical
abuse at the hands of her husband. She has been staying separately since 2004. The
last incident of physical abuse occurred just before she left home. She can file an
application for a residence order under the PWDVA, as she continues to be deprived
of the shared household and was forced to leave her home as a result of domestic
violence.
• An order for maintenance under Section 125 CrPC was passed in 2002 in favour of
the aggrieved person against her husband. That order has still not been complied
with. The fact that, to date, the husband has failed to maintain the aggrieved person
and her children constitutes domestic violence and gives the woman the right to file
for relief/s under the PWDVA, even though no fresh incident of domestic violence
has been perpetrated by the respondent-husband after the coming into force of the
Act.
• The aggrieved person is divorced from her husband and is living separately. Her
former husband continues to threaten and stalk her. She can file for a protection
order under the PWDVA because she “has been” in a domestic relationship with the
ex-husband.
Thus, the law allows an aggrieved person to file an application for acts of domestic
violence that took place before the enforcement of the PWDVA in 2006.10
For example, if a woman was dispossessed from the shared household in 2000 (i.e.,
before the PWDVA was brought into force), she can still claim a residence order under
Section 17. Similarly, a woman denied maintenance for several years could make a claim
9 Rule 6(2)
10 In order to understand this, we must distinguish between criminal and civil laws and retrospective and retroactive laws. A
criminal law that is retrospective in effect violates fundamental rights. For example: let us suppose that, in 2009, the state
enacts a criminal law that penalises persons who construct houses that have more than five storeys. Those people who
constructed houses with five or more storeys before 2009 did so before their act was deemed to be an offence. If the new
law, with its penal provisions, is applied to these people who constructed their multi-storeyed houses before 2009, it could
be struck down as violating fundamental rights. This issue does not arise with regard to the PWDVA as it is a civil law that
grants relief/s (rather than a criminal law that penalises actions). The only penal provision in the PWDVA is Section 31,
which penalises the breach of court orders. A court order can be breached only after it is granted. A court can grant an or-
der only after the law was brought into effect. Hence, the issue of retrospective effect does not arise vis-à-vis the PWDVA.
72
of economic abuse under the PWDVA. A claim for compensation under Section 22 for pre-
PWDVA domestic violence is also possible.
The Court may, however, consider issues such as acquiescence and waiver, delays,
etc. whenever appropriate at the time of granting relief/s.
The PWDVA does not prescribe any time limit or limitation period within which
an aggrieved person must bring her claim. An aggrieved person can, therefore, file an
application for acts of domestic violence conducted in the past or even in the distant past.
It is for the Court to decide upon the nature of relief/s if any, to be granted.
As per Section 26, if an aggrieved person is involved in litigation that affects her rights
as well as the rights of the respondent, then an application for relief/s under the PWDVA
can be filed in such pending proceedings. It is advisable for a PO to ascertain whether or
not the aggrieved person is involved in any litigation and file the PWDVA application in the
Court where that prior litigation is ongoing. This is to avoid a multiplicity of forums and
proceedings. However, nothing bars an aggrieved person from filing a separate application
under Section 12 of the PWDVA even if there are pending proceedings involving the
parties. However, there is an absolute obligation on the aggrieved person to disclose in
the application all pending and previous proceedings under any law between the parties
in which she has claimed similar relief. Failure to do so will disentitle an aggrieved person
from obtaining reliefs under the PWDVA.
Finally, due to the emotional upheavals associated with domestic violence, POs
should anticipate that occasionally the aggrieved person will change her mind: first
request assistance in filing an application and then decide not to file an application. Women
in abusive relationships sometimes go through phases where the perpetrator offers
professions of love, appeals for mercy and promises to change, resulting in the woman
agreeing to give the man another chance, but in reality simply prolonging the abuse.
The PWDVA does not debar an aggrieved person from making repeated applications,
especially if there is a fresh incident of violence. A PO is advised to be patient in cases
where aggrieved persons make repeated requests for assistance to file applications. It
must be remembered that if the aggrieved person wishes to file an application in Court,
it is the duty of the PO to assist her and facilitate her access to Courtmandated relief/s.
The PO may simultaneously refer the aggrieved person to other available support services
such as a counselling centre with a view to empowering her to make an informed decision
about her life.
4.3 Where Can an Application Be Filed?
Section 27 provides that an application under the PWDVA can be filed before either
a Judicial Magistrate of the first class or a Metropolitan Magistrate in urban areas within
whose local limits any of the following situations arise:
(i) The aggrieved person resides either permanently or temporarily or carries on
business or is employed.
If the aggrieved person has been dispossessed from the shared household, this
provision allows her to file an application in the place where her natal home (in
cases where the shared household was also the matrimonial home) or shelter home
or any other residence is situated.
(ii) The respondent resides or carries on business or is employed.
This can allude to the shared household or any other place where the respondent is
residing or is employed.
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(iii) The cause of action has arisen.
The “cause of action” alludes to the acts of domestic violence that are alleged to have
taken place.
By providing such a wide array of choices, the PWDVA allows an aggrieved person
to file an application in a place which is entirely different from the place where the act of
domestic violence is alleged to have occurred.
FORM II
[See rule 6(1)]
APPLICATION TO THE MAGISTRATE UNDER SECTION 12 OF THE PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 (43 of 2005)
To
The Court of Magistrate
………………………............……….
……………………………............…. Fill in the name and
…………………………............……. address of the court
………………………...........………..
Application under section.........
of the Protection of Women
] from Domestic Violence
Act, 2005 (43 of 2005)

Fill Section 12
in the blank space
SHOWETH:
1. That the application under section........ of Protection of Women from Domestic
Violence Act, 2005 is being filed along with a copy of Domestic Incident Report by
the:-
(a)
Aggrieved person
(b) Protection Officer
(c) Any other person on behalf of the aggrieved person

(tick whichever is applicable)
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5 Orders that May Be Sought from the Court
Item 2 of Form II broadly lists the orders available under the PWDVA; Item 3 details
the specifics of each of these orders. Item 3(vii) also provides space to include “any other
order that she may need but that is not mentioned in the Form.
FORM II, Item 2
It is prayed that the Hon’ble court may take cognizance of the complaint/Domestic
Incident Report and pass all/any of the orders, as deemed necessary in the circumstances
of the case,
(a) Pass protection orders under section 18 and/or
(b) Pass residence orders under section 19 and/or
(c) Direct the respondent to pay monetary relief under section 20 and/or
(d) Pass orders under section 21 of the Act and/or
(e) Direct the respondent to grant compensation or damages under section 22
and/or
(f) Pass such interim orders as the court deems just and proper;
(g) Pass any orders as deems fit in the circumstances of the case.
5.1 Protection Orders
A protection order is defined under Section 18 of the PWDVA. It is in the nature of a
“stop violence” order aimed at:
(i) Putting an end to additional acts of violence by the respondent against the
aggrieved person;
and
(ii) Preventing acts that adversely impact on the aggrieved person’s rights as
recognized under the law.
A court may grant any of the orders mentioned in Section 18 to:
(a) Prevent the commission of further acts of domestic violence, including orders
to prevent the respondent from aiding and abetting the commission of acts of
domestic violence.
(b) Prevent the respondent from entering the aggrieved person’s place of
employment or education and causing harassment.
(c) Prevent the respondent from communicating with the aggrieved person in any
manner.
(d) Prevent the respondents from taking any financial action to the aggrieved
person’s detriment.
(e) Prevent any violence being caused to a person related to or dependent on the
aggrieved person.
Item 3(i) of Form II lists specific orders that an aggrieved person may seek from the
Court.
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FORM II, Item 3(i)
Order required:
(i) Protection Order under section 18
• Prohibiting acts of domestic violence by granting an injunction against the
Respondents from repeating any of the acts mentioned in terms of column
4(a)/(b)/(c)/(d)/(e)/(f)/(g) of the application
• Prohibiting Respondent(s) from entering the school/college/workplace
• Prohibiting from stopping you from going to your place of employment
• Prohibiting Respondent(s) from entering the school/college/any other place
of your children
• Prohibiting from stopping you from going to your school
• Prohibiting any form of communication by the Respondent with you
• Prohibiting alienation of assets by the Respondent
• Prohibiting operation of joint bank lockers/accounts by the Respondent and
allowing the aggrieved person to operate the same
• Directing the Respondent to stay away from the dependants/relatives/any
other person of the aggrieved person to prohibit violence against them
• Any other order, please specify
Domestic violence manifests in different ways and it is not possible to list all
possible types of protection orders in Form II. Instead, the PWDVA vests wide powers with
the Magistrate to grant orders designed to prohibit specific acts of violence from being
committed.11 Hence, if the listing provided in Form II, Item 3(i) does not include the exact
nature of the order that the aggrieved person requires, then the space provided for “any
other order” should be used to supply details. The attempt should be to seek orders that
correspond to the particular acts of violence from which the aggrieved person requires
protection.
For instance, a Magistrate has the power to grant the following kinds of protection
orders, in addition to those enlisted in Item 3(i)
• Prohibit the respondent(s) from talking to the aggrieved person about marriage
or forcing her to meet a particular person for marriage, as for example, when
the aggrieved person’s parents are pressuring her to get married against her
will.
• Direct the respondent(s) to restore possession of the aggrieved person’s
stridhan, jewellery or clothes.12
• Direct the respondent(s) to surrender and/or refrain from acquiring firearms,
other weapons or any dangerous substances.
• Prohibit the respondent(s) from consuming alcohol or illegal drugs, particularly
if alcohol or drug use contributed to the domestic violence.
Finally, it must be remembered that a protection order can be sought not only to
11 Section 18(g) empowers the Magistrate to grant a protection order to prohibit the respondent from “committing any other
act as specified in the protection order”.
12 Section 19(8). In the proposed law submitted by LCWRI to the Government of India, Section 19 was actually a sub-section
of Section 18. Due to an inadvertent error, two separate provisions instead of just one made their way into the final Act.
This has led to much confusion in the implementation of the Act.
76
address and remedy acts of violence that have occurred, but also to address threats of
domestic violence.
5.2 Residence Orders
5.2.1 Background: The Right to Reside
Section 17 of the PWDVA recognizes a woman’s right to reside in a shared household.
Prior to the enactment of the PWDVA, the right to reside vested in those who held the
right, title over or interest in the property. For instance, if the father owned the shared
household or if the lease of a shared household was in his name, then he had the right
to reside in the shared household. He could then allow other dependents to reside in the
shared household with him. In most instances, it is the male head of the family who holds
the title or ownership over or interest in the property. Therefore, in effect, women had no
right to reside in their homes, as they generally do not hold the title over property or have
adequate or equal property rights.
As a result, the forced dispossession of women from the shared household was
fairly common, particularly as a consequence of domestic violence. In fact, a tenant or an
illegal occupant had better safeguards for residence than did women, as the former could
be dispossessed only after obtaining an eviction order from the court. By recognizing a
woman’s right to reside in the shared household, the PWDVA guards against her illegal
dispossession. Section 17(2) specifies that women in domestic relationships cannot be
dispossessed from any part of the shared household, except in accordance with procedure
established under law. 13
In order better to understand Section 17(2), it is important to distinguish the right
to reside recognised in Section 17(1) from property rights. All that the PWDVA does is
to provide a procedural safeguard against dispossession to women; it does not create
any substantive rights over the property. What this means is that a woman cannot be
dispossessed from the household that she shares with the perpetrator of violence as
a result of violence. If she is to be dispossessed, then the procedure set out in law has
to be followed,14 which will vary according to the nature of ownership or title over the
property.15
Saying that no substantive rights are created means that the right to reside under
the PWDVA does not affect the existing ownership structure established under existing
property laws. A woman facing domestic violence can exercise her right to reside in the
shared household, but this does not mean that she is entitled to seek a share of ownership
in the property in her application under the PWDVA. Issues of ownership are determined
on the basis of applicable property laws in a separate civil court.16
Not only does the PWDVA provide a right of residence, it also creates mechanisms by
which that right can be meaningfully exercised by women. Residence orders and protection
13 The PWDVA puts into legislation a right that has previously been recognised in case law on maintenance rights of wives.
In B.P. Achala Anand [(2005) 3 SCC 313], the Supreme Court stated, “A Hindu woman is entitled to be maintained by her
husband. She is entitled to remain under his roof and protection. She is also entitled to a separate residence if by reason
of the husband’s conduct or by his refusal to maintain her in his own place of residence or for just cause she is compelled
to live apart from him. The right to residence is part and parcel of the wife’s right to maintenance.” See also Ruma Char-
aborty v Sudha Rani Banerjee [(2005) 8 SCC 140].
14 For instance, if the shared household constitutes tenanted premises, the landlord may protect his interests by initiating
proceedings for eviction following the procedure established under rent laws. The woman will have the right to defend the
proceedings in view of her right to reside, even if the premises are not tenanted in her name.
15 Property laws and procedure may vary from state to state as this is a state subject.
16 If the aggrieved person is involved in litigation on property matters that affects the rights of both parties, (i.e. the aggrieved
person and the respondent), then, as per Section 26, she can file an application for relief/s under the PWDVA in those
pending proceedings.
77
orders, for example, are both available to assure the aggrieved person of a home without
fear of additional violence or destitution.
5.2.2 Residence Orders: Specific Details
A Residence order may be sought in cases where the aggrieved person apprehends
dispossession from the shared household or in cases where she is already dispossessed
and seeks to be restored to the shared household.
A Residence order is granted on the basis of Section 17(1) of the PWDVA, which
recognizes a woman’s right to reside in the shared household irrespective of whether she
has a right, title or ownership in the shared household. This means that there is no need for
an aggrieved person to provide evidence of her right or interest in the shared household.
All that an aggrieved person must provide is evidence of the domestic relationship and
that the premises over which the Residence order is sought is the shared household.17
The kinds of Residence orders that an aggrieved person may seek are provided in
Section 19(1) of the PWDVA and further detailed in Form II, Item (3)(ii) of the PWDVR. Sub-
sections (2)-(8) of Section 19 provide for other orders that can be granted by Magistrates
to ensure that residence and protection orders are enforced.
Residence orders enlisted under Section 19 are aimed towards ensuring an aggrieved
person’s peaceful possession of the premises. In this regard, the aggrieved person may
seek orders to:
• Restrain the respondent from committing any acts that interfere with the aggrieved
person’s peaceful possession of the shared household.18
• Prevent the respondent from dispossessing the aggrieved person from the shared
household or any portion thereof.19
• Prohibit the respondent or any of his relatives from entering any portion of the
shared household in which the aggrieved person resides.20
• Prohibit the respondent from committing any acts to defeat a woman’s right to
reside, such as alienating or selling off the shared household, renouncing his own
share in the shared household, etc. 21
• Direct the respondent to leave the shared household.22 The Proviso to Section
19(1) states that this order cannot be passed against any person who is a woman.23
Hence this order cannot be sought against any female respondent. However, female
respondents may be prevented from entering any portion of the shared household
in which the aggrieved person resides.24
• Though this order is not specifically enlisted, an aggrieved person may seek an
order for her restoration to the shared household, in case she has already been
dispossessed. The Magistrate’s power to grant this order is derived from the right to
reside recognised in Section 17(1).
• In case the aggrieved person is apprehensive of further acts of violence being
17 For further details on the documentation required, see Chapter How to Record a Domestic Incident Report
18 Section 19(1)(a). If a woman resides in the matrimonial home, she has a better chance of succeeding in her demand for
shelter and a right to stay in the same house.
19 Ibid.
20 Section 19 (1)(c)
21 Section 19 (1)(d)-(e)
22 Section 19 (1)(b)
23 The proviso to Section 19(1) says, “provided that no order under clause [19(1)] (b) shall be passed against any person
who is a woman.”
24 See footnote 15 above
78
committed on her return to the shared household, she may seek a direction ordering
the respondent to provide her with suitable alternate accommodation.25 If the
aggrieved person has identified a suitable accommodation, then the respondent can
be directed to pay the rent of such alternate accommodation. According to Section
19 (1)(f), the accommodation granted under such an order has to be at the “same
level…as enjoyed by her in the shared household...”
FORM II, Item 3(ii)
(ii) Residence Order under section 19
• An order restraining Respondent(s) from
• Dispossessing or throwing me out from the shared household
• Entering that portion of the shared household in which I reside
• Alienating/disposing/encumbering the shared household
• Renouncing his rights in the shared household
• An order entitling me continued access to my personal effects
• An order directing Respondent(s) to
• Remove himself from the shared household
• Secure same level of alternate accommodation or pay rent for the same
If the orders enlisted in Form II, Item (3)(ii) do not reflect the exact kind of order
that the aggrieved person requires, then the specific nature of the order sought should be
provided under the heading “any other order”. It is advisable to be as specific as possible
in this request. For example, the aggrieved person may seek to restrain the respondent
from throwing garbage on the portion of the shared household in which the aggrieved
person resides.
Can a divorced woman ask for a residence order in the shared household
of her ex-husband?
A divorced woman victimised by domestic violence is generally not entitled to
reside in the shared household of her ex-husband.
In B.P. Achala Anand v. Appi Reddy & Anr. [(2005) 3 SCC 313] and Ruma
Chakraborty v. Sudha Rani Banerjee & Anr. [(2005) 8 SCC 140], the Supreme
Court held that because divorce is a termination of the matrimonial relationship,
the right to residence depends upon the terms and conditions within the decree
of divorce. Accordingly, a divorced woman can enforce the right to reside only
if she has not expressly waived or compromised that right in her decree of
divorce in appropriate proceedings under divorce laws. Absent a provision in
the divorce decree allowing it, a divorced woman is not entitled to return to
the former shared household. However, if she has not expressly forfeited or
given up her right to post-divorce alimony, she can claim a right to reside in
appropriate proceedings.
5.3 Additional Orders that Can Be Sought to Ensure the Enforcement of Protection
and Residence Orders
The remaining provisions of Section 19, i.e. sub-sections (2)-(8), are useful directives
that can be sought to ensure that residence and protection prders are enforced. The
25 Section 19(1)(f)
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Magistrate is empowered to grant any of these orders in addition to any order granted
under Sections 18 and 19(1). The aggrieved person may seek these orders at the time of
completing Form II under the heading “any other order” in Items 3(i) and (ii).
• Section 19(2): The Magistrate may impose additional conditions or give specific
directions to protect or provide for the safety of the aggrieved person. For example:
an order to the police to guard the shared household and prevent the respondent
from entering, in addition to an order granted under Section 19(1)(b).
• Section 19(3) and (4): The Magistrate may direct the respondent to execute a bond,
with or without sureties, for preventing the commission of domestic violence. The
execution of a bond is equivalent to providing “security for keeping peace and for
good behaviour” prescribed in Chapter VIII of the CrPC. The breach of the conditions
mentioned in the bond is a punishable offence.
• Section 19(5) and (7): The Magistrate may direct the police to give protection to
the aggrieved person or to assist her in the implementation of the protection or
residence order granted.
• Section 19(6): The Magistrate may, in addition to a residence order, impose
obligations on the respondent to pay rent or meet other financial obligations.
• Section 19(8): The Magistrate may compel the respondent to return to the aggrieved
person her stridhan or any other property to which she may be entitled.
5.4 Regaining Possession of Stridhan
Stridhan refers to gifts given to a woman at the time of her marriage; for example:
clothes, ornaments, jewellery, household items, cash, etc.26 The woman is the absolute
owner of stridhan and can deal with it in any manner she likes. She may sell it, gift it,
spend it or dispose of it in any manner she likes without any reference, consultation or
permission of her husband. Only in situations of extreme distress may the husband use
this property, and even here he is morally bound to restore the property or its value to the
woman as soon as possible.27
In situations of domestic violence, it is likely that women will leave their stridhan in
the matrimonial home, in the custody of either the husband or his relatives. In such cases,
an aggrieved person can seek a direction from the Court for the retrieval of her stridhan.
This direction may be sought while seeking a protection or residence order in Form II.
In order to demonstrate that the items to be retrieved are part of stridhan, the
following documentation, if available, can be relied upon:
(i) A copy of the list of gifts and items received during marriage. In a Muslim
marriage, such a list is often made during the nikah ceremony.
(ii) Bills of stridhan items, photographs of the aggrieved person wearing the
jewellery or of her using the items, etc.
If the aggrieved person does not have a list of her stridhan, she should try to recollect
and prepare a list the items received as stridhan. If the items are kept in a locker, then bank
details must be provided such as the name of the bank, locker number, etc.
If the respondent agrees to return stridhan, then items so returned must be recorded
26 In Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370], the Supreme Court identified stridhan as: “‘Stridhan’ or Sauday-
ika means the gift of affectionate kindred and includes both Yautaka or gifts received at the time of marriage, as well as
Ayautaka. Manu enumerates six kinds of stridhan: (i) Gifts made before the fire at the time of marriage; (ii) Gifts made at
the bridal procession; (iii) Gifts made in token of love by her father-in-law and mother-in-law and those made at the time of
making obeisance at the feet of elders; (iv) Gifts made by father; (v) Gifts made by mother; (vi) Gifts made by brother”
27 Pratibha Rani v. Suraj Kumar, Ibid.
80
and maintained in a list. Details of the person paying for the conveyance used to return
stridhan and the method of conveyance used should also be recorded.
If, for any reason, the respondent refuses to return stridhan items, a complaint under
Section 406 of the IPC may be recorded and police assistance may be sought to retrieve
the items. For this purpose, an NCR may be recorded stating the date that the aggrieved
person left her matrimonial home and the items taken from and left behind at that time.
5.5 Monetary Orders
Section 20 of the PWDVA provides for monetary orders. The aim of this provision is
to ensure that women facing domestic violence have adequate financial support and are
not rendered vulnerable due to their financial dependence on male members of the family.
The relief/s available under this provision can broadly be divided into two:
(i) Payment for losses and expenses incurred as a consequence of domestic
violence; provided for in Form II, Item (3)(iii).
(ii) Payment for maintenance to meet daily needs and expenses of the aggrieved
person and her children; provided for in Form II, Item (3)(iv).
FORM II, Item 3(iii)-(iv)
(iii) Monetary reliefs under section 20
• Loss of earnings, Amount claimed
• Medical expenses, Amount claimed
• Loss due to destruction/damage or removal of property from the control of the
aggrieved person,
Amount claimed
• Any other loss or physical or mental injury as specified in clause 10(d)
Amount claimed
Total amount claimed
Any other order, please specify
(iv) Monetary reliefs under section 20
• Directing the Respondent to pay the following expenses as monetary relief:
• Food, clothes, medications and other basic necessities, Amount
per month
• School fees and related expenses Amount per month
• Household expenses Amount per month
• Any other expenses Amount per month
Total per month
5.5.1 Payment for Losses and Expenses Incurred as a Consequence of Domestic
Violence
Under this category, the aggrieved person may seek orders directing the respondent to
pay for:
81
(i) Loss of earnings due to domestic violence. This is particularly relevant for daily wage
workers or those working on daily rates.
(ii) Medical expenses incurred to treat injuries sustained as a result of domestic violence,
which includes treatment for both physical and mental injuries. For example: fees
paid to physicians and mental health professionals.
(iii) Loss of property.
(iv) Any other loss sustained as a result of domestic violence.
The orders for payment under this category are based on actual expenditure
incurred. Therefore, in order to strengthen these claims for relief, it is advisable to include
work certificates, medical certificates, bills, etc. to the application.
Further, orders under this category are available to all aggrieved persons and are not
limited to those in matrimonial relationships.
5.5.2 Maintenance
Section 20(1)(d) of the PWDVA provides that the Court may order the respondent to
pay maintenance to the aggrieved person and to her children. This can be paid as a lump
sum amount or in instalments.
The right to maintenance of wives and other dependents is also recognized under
various Personal Laws. Section 125 of the CrPC obligates a person to maintain his
wife, including a divorced wife who is not remarried; children, whether legitimate or
illegitimate; and parents who are unable to maintain themselves.28 Section 20(1)(d) of
the PWDVA specifies that the amount of maintenance granted can be in addition to the
amount received on an order under any of these other laws. Hence, the ambit of Section
20(1)(d) is broader than the provisions contained in any of these other laws. This means,
for instance, that sisters and unmarried daughters may claim maintenance from their
brothers or fathers respectively. Aggrieved persons who are in relationships that are in
the nature of marriage can also claim maintenance under this provision.
Maintenance may include provision for food, clothing, residence, education of
children, medical attendance or treatment.29 The principles followed under Section 125
CrPC in determining maintenance amounts may be used for determining the amount of
maintenance under Section 20(1)(d).
5.5.3 Quantum of Monetary Relief
Section 20(2) of the PWDVA states that monetary relief under both categories – i.e.
payment for loss and payment for maintenance – has to be “adequate, fair, reasonable
and consistent with the standard of living to which the aggrieved person is accustomed”
[emphasis added].30 It is, therefore, important to submit a claim that is based on a realistic
assessment of the respondent’s income and standard of living.
28 28 Section 125 CrPC requires a person to pay monthly maintenance if:

• His wife is unable to maintain herself. For the purposes of this section, “wife” includes a divorced wife who has not
remarried.
• He has a legitimate or illegitimate minor child.
• He has a legitimate or illegitimate disabled major child, not being a married daughter.
• His father or mother is unable to maintain himself or herself; and if the person has sufficient means but neglects or
refuses to maintain his father or mother.
29 State of Haryana v Smt Santra [(2000) 5 SCC 182]
30 In Jasbir Kaur Sehgal v Dist. Judge Dehradun [(1997) 7 SCC 7], the Supreme Court opined, “no set formula can be laid
down for fixing the amount of maintenance. It has in the very nature of things to depend on the facts and circumstances
of each case. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort and the
mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prose-
cution of her case.”
82
The following documents may be useful to demonstrate the respondent’s standard of
living:
• Pay slip of the respondent
• Income tax and other tax returns
• Bank statements and papers
• Title deeds of property owned by the respondent
• Shares/bond certificates
• Receipts of any other asset purchases or documents related to capital acquisition.
These documents may be useful to demonstrate the standard of living and lifestyle
of the respondent and the aggrieved person. In case an aggrieved person is not able to
produce any papers as evidence, she can seek an order under Rule 10(1)(b) for directions
to the Protection Officer to conduct an inquiry into financial assets. Please note: a PO
cannot conduct such enquiries without an express order from the Court.
It is advisable for the aggrieved person to seek a lump sum amount instead of
monthly instalments to prevent hardship if the perpetrator defaults.
5.6 Custody Orders
Section 21 provides for the grant of temporary custody31 of children to the aggrieved
woman (or to the person who has applied on their behalf) at the time of granting protection
orders.32 The underlying rationale is twofold: to protect the children and to ensure that
they are not used as pawns to coerce the woman to stay in a violent domestic relationship.
It is important to emphasize that custody orders under the PWDVA are only temporary
in nature and that issues of permanent custody have to be decided in accordance with
provisions of the Personal Law applicable to the aggrieved person or the Guardianship
and Wards Act.
FORM II, Item 3(v)
(v) Custody Order under Section 21
Direct the Respondent to hand over the custody of the child or children to the –
• Aggrieved Person • Any other person on her behalf, details of such person
In making custody decisions, the Court will be guided by considerations of what
is in the best interest of the child. In assessing best interest, the Court will consider the
following:
• Who would have better care and consideration for the welfare of the child;
• Where is the child more likely to be happy;
• By whom the mental and physical development and comfort of the child can be
better looked after;
• Who has the desire, determination, concept and capacity to provide for better
education and round-the-clock nursing of the child; and
• Who would be available by the side of the child when the child needs love and
affection, care, counselling and protection.
31 The term custody should not be confused with the term guardianship. “Custody” pertains to the child’s physical placement.
“Guardianship” pertains to all aspects of access, custody and care of the child and/or its property.
32 The use of the term “at the time of granting protection orders” in Section 21 means that an order for temporary custody
cannot be claimed by itself. However, separating a woman from her children may be regarded as a form of emotional
abuse and blackmail. Hence, at the time of claiming an order for temporary custody, it is advisable to also claim a protec-
tion order to stop violence from being committed.
83
Material considerations, though important, are secondary to issues of stability,
security, compassion, guidance and any other factors “essential for the full development
of the child’s own character, personality and talents”.33 Hence, it is not necessary for the
aggrieved person to demonstrate that she has the financial capacity to look after the child.
However, she may be called upon to demonstrate that awarding her custody shall be in her
child’s best interest.
At the time of granting temporary custody orders, the Court may specify conditions
under which the respondent may visit the children.
5.7 Compensation Orders
Section 22 of the PWDVA provides for compensation orders for injuries sustained as
a result of acts of domestic violence. Injuries may include mental torture and emotional
distress. A compensation order is over and above all other orders granted under the
PWDVA. The distinction between an order for monetary relief and a compensation order
is that the former is intended to meet actual expenditure incurred whereas the latter is
meant to compensate for injuries caused to the aggrieved person above and beyond the
actual loss or expenditure.
FORM II (3) (vi)
(vi) Compensation order under section 22
A compensation order may be applied for in addition to any other claim/s for
damages under civil law. Amounts granted by the Courts in other proceedings must be
disclosed in the application under the PWDVA. Such amounts shall then be deducted from
the compensation order granted by the Court.
In her application, the aggrieved person needs only to indicate that she requires
a compensation order. The amount of compensation is determined by the Court after
assessing the facts and circumstances of the case and the extent of injuries sustained.
Finally, if the orders enlisted in Form II do not meet with the aggrieved person’s
requirements, then the space provided in Form II, Item (3)(vii) can be used to seek specific
orders.
6 Other Details to Be Completed in Form II
Item 4 of Form II pertain to details on other litigation proceedings and their outcomes.
FORM II, Item 4
4. Details of previous litigation, if any
(a) • Under the Indian Penal Code, sections ………...….........…………………… Pending
in the Court of
• Disposed of, details of relief
(b) • Under Cr.P.C., section …………… Pending in the court of
(c) • Under the Hindu Marriage Act, 1956, sections ………………….……….. Pending
in the court of
33 Dhanwanti Joshi v. Madhav Unde [1998 (1) SCC 112]: “Welfare is an all encompassing word. It includes material welfare
both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the
sense of adequacy of care to ensure that good health and due personal pride are maintained. However while material con-
siderations have their place, they are secondary matters. More important are the stability and the security, the loving and
understanding care and guidance, the warm and compassionate relationships that are essential for the full development of
the child’s own character, personality and talents.” [Emphasis added]
84
FORM II, Item 4 (con’t.)
(d) • Under the Hindu Adoptions and Maintenance Act, 1956, sections
…………..………. Pending in the court of
(e) • Application for maintenance, under section………… under Act
• Interim maintenance Rs. p.m.
• Maintenance granted Rs. p.m.
(f) • Whether Respondent was sent to Judicial Custody.
• For less than a week • For less than a month
• For more than a month
Specify period
(g) Any other order
The need to provide these details is based on Section 36 of the PWDVA which provides
that the PWDVA can be used in addition to any other law. Even if an aggrieved person
has pending litigation under other laws, she can initiate separate proceedings under the
PWDVA for relief/s. However, at the time of her PWDVA application, she must mention the
other proceedings in which she may be involved. Failure to disclose details of previous
and pending proceedings may lead to the dismissal of the application on the ground that
the aggrieved person has not approached the court with “clean hands”.
Item 4 of Form II provides space for recording details of pending and disposed of
proceedings in which the aggrieved person is or had been involved. The written pleadings
submitted in such proceedings can be consulted to complete details required under this
Item.34 If the matter has been disposed of, it is important to mention details of the order
that was granted. It is also advisable that the aggrieved person append to her PWDVA
application a copy of the orders granted in the other proceedings, if she has such a copy
available.
Item 4(f) is significant. Details of the respondent’s prior history of incarceration may
be useful in proving proclivity towards and past episodes of violence.
Form II ends with prayers to the Court to issue appropriate orders and provides a
verification of the details completed in the Form.
In cases where the Protection Officer assists the aggrieved person in completing
Form II, her signature (or thumb impression, if she is illiterate) is required in two places,
as shown in the box below. The aggrieved person’s signature/thumb impression indicates
that she agrees with the contents of the Form. Before obtaining the aggrieved person’s
signature, it is advisable that the PO read out the contents of Form II to her and make sure
that she agrees with it.
The term “deponent” used in the portion on verification denotes the aggrieved
person or the person making the statements. The verification must be counter-signed by
the Protection Officer.
34 All written pleadings submitted in Court indicate the relevant provision under which the petition is filed in the heading.
85
Prayer:
It is, therefore, most respectfully prayed that this Hon’ble Court be pleased to grant the
relief (s) claimed therein and pass such order or orders other order as this Hon’ble Court
may deem fit and proper under the given facts and circumstances of the case for protecting
the aggrieved person from domestic violence and in the interest of justice.
Place: Complainant/Aggrieved person through

Dated:
Counsel Aggrieved
Person to sign
VERIFICATION
Verified at..............................place) on this day of...........................that the contents of
paras 1 to 12 of the above application are true and correct to the best of my
knowledge and nothing material has been concealed therefrom.
Deponent
Countersignature of Protection Officer with date.
7 How to Obtain Interim Orders
The PWDVA provides civil reliefs that are primarily injunctive (preventive) in
nature. Interim and ex parte orders, being immediate and emergency injunctions, are
very important in preventing domestic violence and irreparable harm35 being caused to
the aggrieved person. Interim orders should be granted in those cases where, if they are
not granted, the purpose of filing the application will be defeated. The provision for such
orders is contained in Section 23 of the PWDVA.
An interim order may be sought at the time of filing the application or at any time
during the course of the proceedings. Interim orders are granted pursuant to affidavits
submitted in support of the application. Although it is not a matter of right, interim orders
can be granted solely on the basis of affidavits, as long as the affidavits provide sufficient
details. It is important to note that written interim orders can be passed on the basis of
affidavits and oral arguments.
An ex parte order is one that is granted without prior notice to the respondent or
in the absence of the respondent. Ex parte orders may be granted when the aggrieved
person’s application prima facie36 shows that the respondent is committing or there is a
likelihood of his committing domestic violence. These orders may also be granted when
35 “Irreparable harm” or damage is any injury that cannot be monetarily compensated.
36 A prima facie case is one in which there is a bona fide contention between the parties or a serious question to be tried
and this contention/question is evident on the “face of it”: i.e., evident from the facts related in the affidavit or in any other
written submission.
86
the respondent fails or refuses to appear in Court despite written notice being served.37 Ex
parte orders can be either interim or final in nature.
The format of an affidavit required for seeking interim orders is provided in Form III
reproduced below.38 Form III should contain adequate and accurate details of the domestic
violence apprehended.
The affidavit in Form III serves two purposes. First, it supports the application filed
in Form II, as the word “affidavit” means a statement on oath or a declaration of certain
facts to whose truthfulness the aggrieved person is willing to swear. Second, it allows
space for the aggrieved person to seek interim orders that are needed immediately to
prevent apprehended domestic violence or address domestic violence already faced.
Most of the information sought in Form III is a repetition of statements made in
Form II. However, the following aspects that must be borne in mind while completing
Form III:
(i) Form III must be submitted in the same Court as the application.
(ii) The details provided in Form III should be in consonance with statements made in
Forms I and II.
(iii) Under Item 2 of Form III, the aggrieved person, if she is the mother of the children,
can put her own name as the natural guardian of minor children.39
(iv) Item 9 of Form III is very significant in seeking Interim Orders. In this space actual
and apprehended fears of domestic violence should be accurately recorded, along with
details of the specific nature of violence apprehended, such as verbal and non-verbal
threats, threatening behaviour, prior conduct that leads to the apprehension of further
acts of violence being committed.
FORM III
(See rule 6(4) and 7]
AFFIDAVIT UNDER SECTION 23 (2) OF THE PROTECTION OF WOMEN FROM
DOMESTIC VIOLENCE ACT, 2005
IN THE COURT OF.................................., MM, .............................
P/S:.................................
IN THE MATTER OF:
Ms. .................................... & Others ...COMPLAINANT
VERSUS
Ms. .................................... & Others ...RESPONDENT
AFDAVIT
I, ................................, W/o Mr. ................................, R/0.............................................. D/o Mr.
............................ R/o.........................................., presently residing at .....................do hereby solemnly
affirm and declare on oath as under:
37 For details on the service of notice, see Chapter “Duties of the Protection Officer During and Post-Litigation
38 Rule 6(4) and Rule 7
39 The Hindu Minority and Guardianship Act states that the “natural guardianship” of a minor vests with the father and, after
him, the mother. Prior to the Githa Hariharan case [(1999) 2 SCC], this provision was interpreted to mean that the mother
would be the natural guardian only after the lifetime of the father. This interpretation was rejected by the Supreme Court
which held that the phrase “after him” as used in the statute, did not necessarily mean after the death of the father, but
would include circumstances where the father was indisposed or incapable of being the natural guardian. A father who
allegedly perpetrates violence on his children cannot be deemed capable of being a natural guardian.
87
1. That I am the Applicant in the accompanying Application for .............................................
filed for myself and for my daughter/son.
2. That I am the natural guardian of..........................................................................................
3. That being conversant with the facts and circumstances of the case I am competent
to swear this affidavit.
4. That the Deponent had been living with the Respondent/s at .....................................
since...........................................to......................................................
5. That the details provided in the present application for the grant of relief under
section (s)...............................have been entered into by me/at my instructions.
6. That the contents of the application have been read over, explained to me in English/
Hindi/any other local language (Please specify............................................)
7. That the contents to the said application may be read as part of this affidavit and are
not repeated herein for the sake of brevity.
8. That the applicant apprehends repetition of the acts of domestic violence by the
Respondent(s) against which relief is sought in the accompanying application.
9. That the Respondent has threatened the Applicant that ...................................................
.............................................................................................................................................................................
.............................................................................................................................................................................
.............................................................................................................................................................................
.............................................................................................................................................................................
10. That the reliefs claimed in the accompanying application are urgent in as much as
the applicant would face great financial hardship and would be forced to live under
threat of repetition/escalation of acts sof domestic violence complained of in the
accompanying application by the Respondent(s) if the said reliefs are not granted on
an ex-parte adinterim basis.
11. That the facts mentioned herein are true and correct to the best of my knowledge
and belief and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION
Verified at.........................on this..........................day of............................. 20.......... That the
contents of the above affidavit are correct to the best of my knowledge and belief and no
part of it is false and nothing material has been concealed threfrom.
DEPONENT
qqq
88
Duties of the Protection Officer During

and Post-Litigation
Once an application under the PWDVA is filed in Court, the Protection Officer has to
perform his/her duties under the Court’s supervision. Chapter 8 provides details on the
PO’s duties that arise during the course of litigation and after the Court grants an order
under the PWDVA.
Chapter Outline
1 Service of Notice
1.1 Time Limit for Serving Notice
1.2 Format to Be Used for Serving Notice
1.3 Serving Notice and Proof Thereof
1.4 How to Serve Notice
1.4.1 Where Can Notice Be Served?
1.4.2 How to Serve Notice in Cases Where the Respondent Is Not
Available
1.4.3 Consequences of the Failure to Accept Notice
2 Preparing a Safety Plan
3 Role in Assisting the Court in the Discharge of its Functions
3.1 Conducting a Home Visit
3.1.1 Specific Instructions to be Obtained from the Court for
Conducting a Home Visit
3.1.2 General Guidelines to Be Kept in Mind while Conducting a
Home Visit
3.1.3 Challenges to a Successful Home Visit
3.1.4 Home Visit Report of the Protection Officer
3.2 Submitting a Financial Status Report
3.3 Restoring Possession of the Aggrieved Person’s Personal Effects
and Assisting with Custody Issues
3.4 Assisting the Court in the Enforcement of Orders
4 Breach of Orders
1 Service of Notice
Once an application under the PWDVA is filed in Court, a notice is issued to or
“served upon” the respondent to appear in Court and respond to the allegations made in
the application. The respondent’s attendance in Court provides him/her the opportunity
of a fair hearing prior to the grant of any orders against him.1
Section 13(1) vests the responsibility of serving notice, by the means prescribed
1 An interim ex parte Order can be granted under the PWDVA under the following conditions:
(i) If the application and the affidavit make out a prima facie case of domestic violence
and
(ii) The respondent either wilfully refuses to accept notice or refuses to attend Court after notice has been served.
A final order on an ex parte basis can also be granted if the respondent fails to appear in Court after notice is served. An
ex parte order can be altered, modified or revoked if the respondent makes an application under Section 25(2). For further
details on alteration, modification, revocation and appeals, see Part 4.
89
in Rule 12, on the Protection Officer. Once notice is served upon the respondent, the PO
has to make a declaration in Court of service of notice. The declaration made by the PO is
deemed to be proof that notice has been served upon the respondent.2
1.1 Time Limit for Serving Notice
Section 12(4) obligates the Court to fix the first date of hearing: ordinarily within
three days of the Court’s receipt of an application under Section 12. After fixing the date of
hearing, the Court shall give notice of the hearing to the PO.3 According to Section 13(1),
notice has to be served not later than two days from the date on which it received by the
PO.
However, under certain circumstances, the Court can extend the date of hearing to
such further reasonable time as it deems fit. For instance, the Court may extend the notice
period if the respondent does not live in the same city or if the respondent’s whereabouts
are unknown. However, in keeping with the intent of the PWDVA of providing much needed
immediate relief in cases of domestic violence, the time period cannot be extended to a
degree that defeats the rights of the aggrieved person.
1.2 Format to Be Used for Serving Notice
The Court may use Form VII provided in the PWDVR to issue notice. Form VII provides
details of the parties to the proceedings, the provision under which the application is filed
and the date and time of the hearing.
As with all Forms under the PWDVR, it is not mandatory that Form VII be used in all
cases. Hence, the Court may use any other format to issue notice.
FORM VII
(See rule 11(1)]
NOTICE FOR APPEARANCE UNDER SECTION 13(1) OF THE PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
IN THE COURT OF.......................................
P/S:.................................
IN THE MATTER OF:
Ms. ................................................ ...COMPLAINANT
VERSUS
Ms. ................................................ RESPONDENT
To,
Mr......................................................
S/o.....................................................
R/o.....................................................
...........................................................
...........................................................
WHEREAS the Petitioner has filed an application(s) under section.............................................
of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005);
You are hereby directed to appear before this Court on the...........................day of...........
2 Section 13(2)
3 Section 13(1)
90
..20............... at..................... O’ clock in the..................................noon personally or through a duly
authorised counsel of this Court to show cause why the relief(s) claimed by the Applicant
against you should not be granted, failing which the court shall proceed ex parte against
you.
Given under my hand and the seal of the Court of.........................on the.................day
of...........20..........
Seal of the Court Signature
At the time of receiving the notice from the Court, it is advisable that the PO check
the following details:
(i) The complete name and address of both parties and any other details that facilitate
the identification of the parties.4
(ii) It is useful to obtain addresses of the respondent’s residence as well as his place of
employment as notice can be served in either of these two places.5
(i) A copy of the application and the DIR should be attached to the notice. A reading
of both these documents shall provide details on the nature of violence alleged
and the relief/s sought.
1.3 Serving Notice and Proof Thereof
As mentioned earlier, the duty of ensuring that notice has been served within
the prescribed time period vests on the PO. However, the PO need not serve the notice
personally. Section 13(1) specifies that the PO “shall get [the notice] served” on the
respondent. This indicates that a PO may direct any other qualified person to effectuate
service on his/her behalf. This interpretation is borne out by Rule 12(2)(a) which provides
that the PO may direct “any other person” to serve notice on his/her behalf.
Simply put, Section 13(1) and Rule 12(2)(a) read together allow a PO to delegate
the duty of service of notice. For example, a PO may delegate this duty to any office staff
available to him/her. If office staff is unavailable, then the PO can solicit assistance from
the police or the Court’s Process Server.
In Practice
• In Karnataka, a messenger has been assigned to every Protection Officer. The PO
delegates the task of serving notice to the messenger and is, therefore, in a position
to verify service without having to physically deliver the notice himself/herself.
• In Andhra Pradesh and Chandigarh, POs delegate the function of serving notices to
the Home Guards and ICDS attendants.
• In Tamil Nadu and Kerala, some POs delegate the service of notice to Service
Providers.
[Source: Staying Alive: 2nd Monitoring & Evaluation Report 2008 on the Protection
of Women from Domestic Violence Act (2005); Lawyers Collective (Women’s Rights
Initiative)]
However, even if a PO does not serve notice personally, she/he must supervise
4 Rule 12(1)
5 Rule 12(2)(a)
91
the service of notice and satisfy her/himself that notice has been served. Once the PO is
satisfied that notice has been served, she/he will have to make a declaration in Court to
that effect.6 The PO’s declaration of service of notice shall be proof that such notice was
served upon the respondent or any other person as directed by the Magistrate.7
Alternatively, the Court, under its wide powers,8 may use general procedure under
the CPC9 and the CrPC10 for serving notice: i.e., through either the Process Server attached
to the Court11 or the police.12 For this, the Court may directly issue appropriate orders to
the Process Server or the police. The PO may also request the Court to issue such orders.
Police assistance is essential in those cases where the PO apprehends violence from
the respondent and/or his family at the time of serving notice. In such cases, the PO may
seek a Court order directing the police to serve notice upon the respondent. Even in cases
where violence is not apprehended, the PO can seek a Court order directing the police or
Process Server to provide assistance at the time of serving notice.
In those cases where the Court directs any other authority to serve notice, the
responsibility of ensuring the service of notice shifts to such authority who will then
report to the Court once service is completed. For instance, if the police are directed to
serve notice in accordance with the CrPC, proof of service shall come from the police.
Rule 12(3) provides that the PO or any other person authorised to serve notices (i.e.,
any other authority directed by the Court), may take the following actions to demonstrate
that notice has been effected:
• Make a statement on the date fixed for the appearance of the respondent
or
• Submit a report to the Court that service has been effected.
In Practice
Following a reported incident where a Protection Officer was subjected to
violence by the respondent and his family at the time of serving notice, the
Delhi High Court, acting on a request made by the Department of Social Welfare,
Government of Delhi, issued the following order to be followed by all Courts
while dealing with cases under the PWDVA:
6 Section 13(2)
7 Ibid.
8 As per Section 28(2) of the PWDVA read with Rule 12 of the PWDVR.
9 Order V of the CPC. See Annexure III.
10 Chapter VI of the CrPC (Sections 62-67) provides different modes of effecting service in diverse situations. See Annexure
III.
11 Order V Rule 9 of the CPC provides that the “summons” or notices shall be delivered by the Court to the “proper officer”
or any of his subordinates to be served by him in the manner approved by the Court. “Proper Officer” means an officer of
the court: usually the bailiff. The “proper officer” may require any other authorised person to effectuate service. Means of
service include registered post acknowledgement due, speed post, any courier approved by the High Court or any other
approved means of transmission of documents, including fax or emails addressed to the defendant.
In addition, under Order V Rule 9 of the CPC, a summons may be served directly by the applicant/aggrieved person as
dasti notice. Dasti service means that the applicant or the aggrieved person takes the responsibility of serving notice upon
themselves. This form of serving is also referred to as “private notice”. In Amar Kumar Mahadevan v. Karthiyayini [High
Court of Madras, Criminal Original Petition No. 32475 of 2007 and M.P. Nos. 1 and 2 of 2007 (Decided on 28.11.2007)],
the Court held that an order to the aggrieved person directing the issue of private notice to be served on the respondent is
not in conflict with the statutory provisions, and is in the exercise of the power of the Court to lay down its own procedure
under Section 28(2) of the PWDVA.
In arriving at its decision, the Court said that “this Act being a beneficent piece of legislation enacted for providing minimum
relief to an aggrieved person affected by domestic violence, even if there is any minor procedural deviation, such minor
procedural deviation being technical in nature, need not be taken serious note of and on that ground, the proceedings
pending under the Act cannot be quashed.”
12 Summons or notices are served under the CrPC upon a determination by the Court that a prima facie case has been
made out. Section 62 states that summons shall be served by a police officer, by an officer of the court (i.e., the process
server) or by a public servant.
92
93
1.4 How to Serve Notice
Rule 12 provides the procedure to be adopted in serving notices. This self-contained
code for serving notices integrates elements from the CPC and the CrPC13 to ensure that
notices are expeditiously served.14 Moreover, High Courts in every state issue Rules on
procedure to be adopted by the Courts in addition to the CPC and the CrPC. Protection
Officers are advised to familiarise themselves with the procedures for service of notice
provided in the Rules issued by the High Courts of their state.
1.4.1 Where Can Notice be Served?
Notice is to be served upon the respondent at the address stated by the aggrieved
person or the complainant to be the respondent’s:
• Place of residence or where he ordinarily resides
or
• Place of employment
1.4.2 How to Serve Notice in Cases Where the Respondent is Not Available
There may be a number of reasons, either wilful or inadvertent, for the respondent’s
non-availability. These reasons may broadly be categorized into two:
(i) Instances where the respondent, though present in the Protection Officer’s
jurisdiction, is not available, either wilfully or inadvertently, to accept notice.
(ii) Instances where the respondent is not present in the Protection Officer’s
jurisdiction.
Category (i)
In this first category, where the respondent is either inadvertently unavailable or
wilfully refuses to accept service of notice, a PO may:
• Deliver a copy of the notice to the person in charge of the place.15 The term “person
in charge of the place” includes a duly authorised agent of the respondent,16 an adult
male family member if the notice is being served at his/her residence,17 and the
respondent’s employer if the notice is being served at the place of employment.
• Paste a copy of the notice at a conspicuous place on the premises.18 This option is
available to the PO if the above option is not possible, for instance in those cases
where the person in charge refuses to accept the notice. The notice may be affixed
to the outer door of the residence or premises where the respondent is employed.
In Practice
Some Protection Officers in Himachal Pradesh serve notices through public
announcements in local dailies in cases where the respondents are avoiding
notice.
[Source: Staying Alive: 2nd Monitoring & Evaluation Report 2008 on the
Protection of Women from Domestic Violence Act (2005); Lawyers Collective
(Women’s Rights Initiative)]
13 See footnotes 8 and 9 above
14 Rule 12(2)(d) states that the Court may direct any other steps necessary with a view to expediting the proceedings to
adhere to the time limit provided in the Act.
15 Rule 12(2)(b)
16 Order V Rules 12-14 of the CPC
17 Order V Rule 15; Section 64 of the CrPC
18 As per Rule 12(2)(b) of the PWDVR, Section 65 of the CrPC and Order V Rule 20 of the CPC. Under Order V Rule 20(1A)
of the CPC, the Court may also order service by an advertisement in a daily newspaper circulating in the locality in which
the respondent is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
94
In both of the above instances, after delivering or pasting a copy of the notice, the
PO must return the original copy to the Court along with her/his statement or report that
notice has been effected and mention the means by which notice was effected. Once this is
done, service is deemed to be adequate and complete.19
Category (ii)
If the respondent resides outside the Protection Officer’s jurisdiction and has no
agent in India to receive notice, the following courses of action may be adopted:
• Notice may be addressed to the respondent at the place where he is residing by post,
courier, fax, email or any other means provided for in the Rules of the concerned
High Court.20
• The Protection Officer may request the Court to serve the notice through the
Magistrate of the jurisdiction within which the respondent resides or is.21
• If the respondent resides or works in a foreign country, then notices may be served
through Indian Embassy of the High Commission of that particular country.22
In Practice
• In West Bengal, Protection Officers take police assistance in serving notices outside
their jurisdiction by using radiograms in police stations.
• In Delhi, Kerala, Manipur and Orissa, Protection Officers network with their
counterparts in other jurisdictions who can serve notice on their behalf.
[Source: Staying Alive: 2nd Monitoring & Evaluation Report 2008 on the Protection
of Women from Domestic Violence Act (2005); Lawyers Collective (Women’s Rights
Initiative)]
1.4.3 Consequences of the Failure to Accept Notice
Rule 12(d) of the PWDVR sets forth the consequences of failure to accept notice. This
provision specifies that failure to accept notice or the refusal to accept notice shall entail
the same consequences as provided under Order V of the CPC and Chapter VI of the CrPC.
Hence, if the provisions of the CrPC are followed, then the respondent’s non-appearance
will lead to the issuance of bailable warrants in the first instance and non-bailable warrants
in the second. An ex-parte order may also be passed against the respondent under Section
23 of the PWDVA, if the circumstances so warrant.
2 Preparing a Safety Plan
One of the most important duties of the Protection Officer, mentioned in Rule 8(1)
(iv) of the PWDVR, is to prepare a Safety Plan for the aggrieved person upon an application
being moved under Section 12 of the PWDVA. A Safety Plan is a document prepared for the
aggrieved person that identifies the ways in which the aggrieved person can protect herself
during a violent incident and reduce the risk of serious harm. Although the law authorises
the PO to prepare a Safety Plan when an application under Section 12 is submitted, it is
advisable for POs to prepare a Safety Plan at the time of recording a DIR.23 However, it
19 Order V Rule 17 of the CPC
20 Order V Rule 21 of the CPC
21 Section 67 of the CrPC provides that, “When a Court desires that summons issued by it shall be served at any place
outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the
person summoned resides, or is, to be there served.”
22 As per Order V Rule 26A of the CPC. The endorsement of the officer authorised by the Indian Embassy shall be deemed
to be evidence of service.
23 Rule 8(2)(a) of the PWDVR mandates that it is the duty of the PO to protect the aggrieved person from domestic violence.
The Safety Plan provides a useful check list for POs to follow so as to anticipate and prevent future acts of domestic vio-
lence. It also empowers the aggrieved person in securing her own safety and taking preventive measures.
95
must be borne in mind that a Safety Plan is not a pre-condition for obtaining orders under
the PWDVA.
In Practice
Anecdotal data from Maharashtra indicates that whenever an aggrieved person
approaches a Protection Officer, the PO prepares a Safety Plan in addition to recording
a DIR and assisting the aggrieved person in preparing an application under Section 12.
This is especially so in cases where there is an apprehension of grave forms of domestic
violence. The Safety Plan, so prepared, is then attached to the application filed in Court,
also enabling the Magistrate better to gauge the situation and pass appropriate orders.
[Source: Informal interactions between POs and the Lawyers Collective (Women’s Rights
Initiative); December 2008]
A PO’s role in preparing a Safety Plan is to assist the aggrieved person in assessing
the risk the respondent poses to her and develop a practical plan to keep safe. To do this,
the PO must conduct a riskassessment with the aggrieved person and exercise extreme
care for the woman’s safety.
POs must always bear in mind that it takes courage for a woman to initiate legal
proceedings against members of her own family and intimate partners. In most cases,
it is only when a person is unable to withstand the circumstances that she will make a
legal complaint. Tolerance levels vary from person to person, as do pressures of individual
situations. An aggrieved person is usually in the best position to assess the potential
danger of her situation and should be encouraged to rely on her own instincts. It is likely
that the aggrieved person has already engaged in significant safety planning on her own
in the past.
Pointers in risk-assessment include:
• If the parties are in a matrimonial relationship and have been recently separated or
the aggrieved woman is attempting a separation.
• The aggrieved woman strongly believes that she is in imminent danger.
• History and pattern of violence: factors like frequency, severity and timing of violent
incidents in the past can often be strong indicators of present and future threats.
• Threats by the perpetrator.
• Previous incidents of stalking, harassment, intimidation and similar behaviour.
• History of assaulting behaviour or taking the law into own hands by the perpetrator.
• Alcohol or substance abuse.
• Particular vulnerability of the woman, for example: pregnancy, complete financial
dependency, no support system etc.
Some general guidelines to be borne in mind while devising a Safety Plan:
• The PO must assist the aggrieved person in identifying and assessing the potential
risks in a cogent and systematic manner.
• The PO must assist the aggrieved person in evaluating options that are available to
her. As a first step, as per Section 5 of the PWDVA, the PO must provide the aggrieved
person with information on her rights and services of Service Providers.24 Evaluating
options includes anticipating the consequences of each action and determining
which option best increases the woman’s safety and autonomy.
24 For further details on the manner in which such information is to be provided, see Chapter 4.
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• A Safety Plan should provide multiple options and be prepared in association with a
number of different situations in which the aggrieved person may find herself, such
as during a violent incident, when she is preparing to leave, after leaving, at her place
of employment, etc. Each of these situations would be associated with different risks.
A PO should assist the aggrieved person in assessing risks in each of these contexts
and generate options to meet the specific situation. Hence, if a particular plan does
not work out, then the aggrieved person should be able to change her plan and use
other options.
Illustrations of Options for Safety in Particular Situations
During a violent incident: Determine how best to exit the home or find lower
risk places to which the aggrieved person can go if an argument occurs. Places
with no exits (such as bathrooms or wall closets) or places that provide access
to weapons (such as kitchens), are unlikely to be safe places.
Preparing to leave: Develop a list of people whom the aggrieved person may
contact in an emergency or places to which she might go if she leaves. She
should be asked to memorise emergency numbers and keep aside some money
to make phone calls at all times.
After leaving: If the aggrieved person’s economic dependence makes her more
vulnerable to violence, then the Safety Plan should include options for her to
become economically independent.
At her place of employment: Inform co-workers about the aggrieved person’s
situation so that they can assist in screening calls and inform her if the
respondent attempts to find or contact her. Other options may be to travel to
work with another person, change routes used to travel to work, etc.
• A Safety Plan must be comprehensive, concrete and should not be limited to strategies
to respond to physical violence. The aggrieved person must and should be able to
follow the plan if she finds herself in imminent danger.
• The aggrieved person should be advised to leave the site of violence if necessary.
In such cases, the police should be intimated of the possibility of such a situation
arising. If the aggrieved person, by leaving the site of violence, is leaving her home,
then the following issues require consideration:
• Whether there is a safe place where she can stay, whether independently or
with family or friends; whether she has money; whether there is any possibility
of the respondent searching for her at the place where she will stay. She should
be advised against disclosing the address of where she is staying.
• Developing a plan for the aggrieved person’s removal from the place of violence
if she is unable to do so herself.
• Establish a code word or a sign so that co-workers, family, friends or neighbours
are alerted of her condition and are able to initiate emergency steps.
• Gather important documents and keep them in a safe place as there is a chance
that the respondent might retaliate by destroying her personal property and
documents. It is useful to leave a copy of important documents as well as extra
clothes, money or keys, etc.
97
Examples of Important Documents
• Identification Cards
• Passports/Visas
• Marriage and Birth Certificates
• Deeds or Leases
• Degrees and Certificates
• Cheque books
• Credit cards
• Bank/Share statements
• Utility bills: phone electricity, gas, etc.
• Vehicle registration documents
• Proofs of stridhan: lists of articles/ receipts
Examples of Documents that are
• Required to Prove Domestic Violence
• Photographs with injuries
• Medical or medico-legal certificates
• Letters written by the aggrieved person or
• by the perpetrator
• Police complaints or Non-Cognisable
• Reports (NCR)
• Proof of the police’s Daily Diary Entries
• (DDE)
Form V can be used in preparing a Safety Plan. This Form details forms of violence,
the consequences of such violence and apprehensions of the aggrieved persons in Columns
A-C. Column D entitled, “Measures required for safety,” is for recording options that can be
resorted to by the aggrieved person.
A Protection Officer is meant to fill in details in Columns C and D. In cases where the
aggrieved person approaches the Court directly, she can either fill in these columns by
herself or have a PO complete them for her with her consent after the application is filed
in Court.
FORM V
(See rule 8(1)(iv)]
SAFETY PLAN
1. When a Protection Officer, Police Officer or any other service provider is assisting
the woman in providing details in this form, then details in columns Cand D are to be
filled in by the Protection Officer, Police Officer or any other serivce provider, as the
case may be, in consultation with the complainant and with her consent.
2. The aggrieved person in case of approaching the court directly may herself provide
dettails in columns C and D.
3. If any aggrieved person leaves columns C and D blank and approaches the court
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directly, then details in the said columns are to be provided by the Protection Officer
to the court, in consultation with the complainant and with her consent.
A B C D E
SI. Violence Consequences of Apprehensions Measures Orders
No. by the violence of the Aggrieved required for sought
Respondent mentioned Person safety from the
in column A regarding court
suffered by the violence
Aggrieved Person mentioned in
Column A
A PO may keep a copy of Form V with herself/himself, particularly in cases where the
aggrieved person feels that having possession of such a document may put her in danger.
In such cases, the PO should allow her access to this document as much as possible.
The aggrieved person should sign at the bottom of Form V. If she is illiterate, then the
contents of the document must be explained to her and her thumb print be affixed at the
end of the document. The PO must also sign the document in the space provided.
Ideally, Safety Plans should be reviewed periodically to ensure that they still meet
the woman’s needs and are consistent with any changed circumstances. Reviewing the
Safety Plans also helps keep its contents and strategies fresh in the woman’s mind.
3 Role in Assisting the Court in the Discharge of its Functions
Section 9(1)(a) states that it is the duty of the Protection Officer to assist the
Magistrate in the discharge of her/his functions under the PWDVA. Section 9(2) further
states that the PO shall be under the control and supervision of the Magistrate and perform
the duties that may be imposed on her/him by the Magistrate. Rule 10(1) provides details
on the duties that a Magistrate may impose on a PO. Magistrates must provide these
directions in writing to the PO.
The duties of the PO, under the written directions of the Magistrate, are as follows:
(i) Conduct a Home Visit of the shared household premises and make preliminary
enquiries.
(ii) Make appropriate enquiries and file a report on the financial status of the respondent.
(iii) Restore to the aggrieved person the possession of her personal effects, including
gifts, jewellery and the shared household.
(iv) Assist the aggrieved person to regain custody of her children and secure rights to
visit them under the PO’s supervision.
(v) Assist the court in the enforcement of orders granted under the PWDVA in a manner
directed by the Magistrate.
(vi) Take the assistance of the police, if required, in confiscating any weapon involved in
the alleged domestic violence.
Rule 10(2) also provides that the Protection Officer shall perform any other duties
assigned to her/him by the Magistrate or the State Government in giving effect to the
provisions of the law. The PO is also duty-bound to follow any other directions issued by
the Magistrate relating to general practice for better handling of cases.25
25 Rule 10(3)
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While most of the provisions in Rule 10(1) are self-explanatory, some are discussed
in detail in the following paragraphs.
3.1 Conducting a Home Visit
Rule 10(1)(a) allows a Magistrate to issue a direction to the Protection Officer to
conduct a Home Visit of the shared household premises and make preliminary enquiries
prior to granting an ex parte interim order to the aggrieved person.
The use of the term “preliminary enquiry if the court requires clarification” in Rule
10(1)(a) indicates that home visits are limited to an inquiry where the Court requires
elucidation on the facts stated by the aggrieved person. Hence, a Court may direct the
Protection Officer to conduct a home visit when the affidavit submitted in Form III by the
aggrieved person requires elucidation in order to establish a prima facie case. In such
cases, the Court may require an independent evaluation to make an informed decision.26
However, as the Home Visit is a valuable method of assisting the Court in the discharge
of its functions, a Home Visit may be ordered at any other stage of the proceedings as well.
At the time of conducting a Home Visit, the PO Protection Officer performs her/his
duties as an officer of the court.27 Hence, she/he should not be biased towards any of
the parties to the dispute and should limit her/his investigation to ascertaining the facts
alleged or disputed and which are capable of physical and objective verification.28
Instances when a Court May Direct the PO to Conduct a Home Visit
• To enquire into the standard of living of the parties to verify the income of the
respondent.
• To ascertain where the aggrieved person is currently residing, particularly in cases
where a Residence Order is claimed.
• To ascertain patterns of living arrangements and the nature of the shared household
(joint family, etc.), in cases where the aggrieved person claims a Residence Order.
The Protection Officer may be required to create a site-plan in appropriate cases.
• To facilitate an enquiry to determine the “best interest of the child” where temporary
custody has been prayed for under the Act.
• To verify the fact of dispossession of the aggrieved person from the shared household.
3.1.1 Specific Instructions to be Obtained from the Court for Conducting A Home
Visit
Upon being directed by the Court to conduct a Home Visit, a Protection Officer must
seek specific directions from the Court regarding the following issues:
• The exact purpose of the Home Visit and the deadline for filing any resultant report.
• The exact details about which the PO is required to enquire. For instance: to ascertain
26 A Court may, of course, pass such an order without ordering a home visit
27 Although the term “home visit” has been borrowed from the discipline of social work, it is important to remember that, in
conducting home visits under this provision, a Protection Officer does not function as a social worker. In social work, home
visits are important tools for gathering information about women, their family and the crisis that they are facing, through
observation and listening. In addition, in social work, the purpose of a home visit is to provide information to the woman
and to initiate a process of intervention. However, in the legal context of the PWDVA, the duty of the PO is solely limited to
the gathering of information.
28 In this regard, the duties of the PO are akin to those of a Local Commissioner appointed under Order 26 Rule 9 of the
CPC, applicable in civil proceedings for injunctions. This provision provides that, “In any suit in which the Court deems
a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the
market-value of any property, or the amount of any mesne profits or damages or actual net profits, the Court may issue
a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued,
the Court shall be bound by such rules.” (Emphasis added.)
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if the aggrieved person is being denied access to necessities of life such as food,
clothes etc; to prepare a site plan of the shared household if the aggrieved person
has sought a residence order, etc.
• That the PO may speak to any person, including the respondent, in order to
understand and obtain clarity as to the facts alleged in the application.
• If the PO apprehends threats of violence or coercion at the time of the Home Visit,
she/he may request the Court to order the police to accompany her/him on the visit.
• If required, a PO may also request that a welfare expert or an individual associated
with a Service Provider be directed to assist her/him in conducting the Home Visit.
3.1.2 General Guidelines to Be Kept in Mind while Conducting a Home Visit
Although a Home Visit must be conducted keeping in mind the legal context of the
PWDVA, an observant and sensitive PO will find that a Home Visit allows her/him some
understanding of various other issues, such as:
• The socio-economic condition of the family
• Decision-making patterns in the family
• Needs and expectations of the family
• Resistance and openness of the family
• Relationship of the family with neighbours
• Whether the neighbours or the housing society, etc. have any knowledge of previous
acts of violence or have heard about or witnessed acts of domestic violence being
perpetrated on the aggrieved person.
• Whether the aggrieved person is safeguarding her possessions or precious
documents.
• Whether the respondent has any kind of substance addiction, such as alcoholism.
• The condition of the house – i.e., its state of organization or disorganization – that
may indicate if there has been violence there.
In certain circumstances, a Home Visit may entail interactions with the family and
access into the shared household. In such cases the following guidelines should be borne
in mind:
Home Visits should be scheduled
Visits should be scheduled during a time with minimal disruptions. It is advisable for
a PO to schedule an appointment with the family prior to conducting the Home Visit. The
appointment should be within office hours and should be at the convenience of both the
PO and the family.
When scheduling a visit, a PO should be clear about the purpose of the visit and state
approximately how long it will last. If the family is expected to have specific documents at
hand or needs to make any other preparations for the visit, it should be discussed at the
time of scheduling the visit.
Home Visits should be organised
When a Protection Officer arrives at the shared household, it is possible that the
aggrieved person or the respondent may want to be the centre of attention. It is advisable
to spend time interacting with the aggrieved person or respondent, but also encourage the
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other family members to interact. This provides an opportunity to observe the aggrieved
person or respondent’s behaviour in a family dynamic.
In order to minimise the likelihood of the discussions with the family straying from
the intended goal of the visit, a PO may find it useful to prepare a check list to ensure
that these discussions provide the information required by the court. Being organised can
allow time to be used wisely and the goals of the visit to be met.
Home Visits should respect privacy
When conducting a Home Visit, a Protection Officer must remember that this is a
family’s home. Most of the time, activities may be conducted in areas of the home that the
family considers ‘public spaces,’ such as a living room or family room. However, the legal
requirements of the Court might require the PO to observe ‘private spaces’ as well. In this
situation, a polite and respectful albeit firm approach is advised.
Home Visits should be supervisory
Both small and serious injuries may have occurred to the aggrieved person. So that
mishaps do not occur in the Protection Officer’s presence, it is advised that, while talking
with the family, the PO may suggest that the aggrieved person or respondent and/or other
family members participate in an activity that keeps woman or respondent safely within
sight.
3.1.3 Challenges to a Successful Home Visit
A Protection Officer must anticipate and meet challenges that might arise while
conducting Home Visits. Some such challenges and the means to overcome them are listed
below:
• The postal address provided by the aggrieved person may either be wrong or
incomplete. This may be because aggrieved persons are frequently not allowed
to interact with the outside world and their state of mind may be confused due to
violence. In such cases, where it is difficult to locate the shared household, the local
shops, paanwala, small tea stalls, etc. may be approached for locating the address.
Also, if there is anything specific about the aggrieved person, the respondent or his
family members (such as the profession of the person, his/her pet name, etc.), such
information can be an instrumental in locating the house. However, this information
cannot violate the parties’ right to confidentiality.
• The PO may face the risk of getting implicated in legal complications, for example:
threats to initiate criminal cases on trespass. Therefore, she/he needs to be careful
and non-threatening in her/his communication style and manner of presentation.
• A PO must seek police assistance if she/he has any concerns about safety.
• In rural areas, where distances are large, POs should plan their visits carefully and
consider clubbing together visits in the same geographical area.
• During Home Visits, people may hospitably offer food, refreshments or other
foodstuffs, such as food grains, vegetables, and fruits, to the PO. However, without
hurting anyone’s feelings, the PO must express her/his inability to accept such
offerings by explaining that accepting these would be unethical as it may be regarded
a creating bias.
• Sometimes respondents might become hostile, aggressive and reluctant to provide
information. In such situations it is important that the PO remain calm, listen to the
family members and persist in her/his line of questioning. However, if the PO has
102
apprehensions about personal safety, she/he should terminate the visit and report
the reason for doing so accurately and honestly to the Court.
3.1.4 Home Visit Report of the Protection Officer
After the completion of a Home Visit, the Protection Officer must prepare a report
providing details of facts that have been verified by her/him. This report should be
submitted within the deadline mandated by the Court or, in cases where no such deadline
has been mandated, as soon as it is possible.
The PO’s Home Visit report is distinct from the Domestic Incident Report. A DIR
is a recording of the aggrieved person’s complaint and there is no legal requirement for
conducting a Home Visit prior to recording the DIR. In contrast, a Home Visit can only be
conducted upon receiving written directions from the Court.
In general, the Home Visit report submitted by the PO must be shared with all parties
to the proceedings. However, the Court has the discretion to withhold the report when
extraordinary circumstances so require, as for example, when the report reveals child
sexual abuse and disclosure is not be in the best interest of the child.
Any party which is adversely affected by a Home Visit report may be allowed to
dispute the report. In some instances, the Court may permit an examination of the PO
on her/his Home Visit report.29 In general, however, the Court will be reticent about
permitting the PO to be examined about facts that are objectively verifiable,30 as such facts
can be disputed by using affidavits submitted by experts. However, examinations will be
allowed if the Home Visit report contains opinions of the PO on the impact of violence or
any other matter that is not objectively verifiable.31
3.2 Submitting a Financial Status Report
Rule 10(1)(b) of the PWDVR authorizes the Court to direct the Protection Officer
to conduct an enquiry into the emoluments, bank accounts, assets and other documents
of the respondent/s and to submit a report of the same. Such an investigation is crucial
for the verification of assets of the parties and their financial status. This is particularly
significant in cases where the relief prayed for is maintenance or an order restraining the
respondent from disposing of his assets or the shared household. The Court can order this
form of investigation at any stage of the proceedings.
All of the issues that arise vis-à-vis Home Visit reports are equally applicable to
financial investigations undertaken pursuant to Rule 10(1)(b).
3.3 Restoring Possession of the Aggrieved Person’s Personal Effects and Assisting
with Custody Issues
Under Section 19(8) of the PWDVA, the Court may direct the Protection Officer to
restore possession of personal effects belonging to the aggrieved person.32 When doing so,
the Court shall provide the PO with a list of items belonging to the woman. It is advisable
that the PO present the Court order along with the list of items at the local police station
before entering the aggrieved person’s shared household. This will guard against any
29 The Court may, for example, permit examination if credible allegations of bias on the part of the Protection Officer arise.
30 As an alternative, the court may permit examination of persons interviewed by the Protection Officer (for example: rela-
tives, neighbours, friends and employers) to corroborate (or dispute) the Home Visit report.
31 Order 26, Rule 10(2) of the CPC refers to the personal examination of the Commissioner on the report submitted in court.
According to R. 10(3), “The report of the Commissioner and the evidence taken by him (but not the evidence without the
report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any
of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to
him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.”
32 Under Section 19(8), the Court may also direct the respondent himself to return to the aggrieved person her stridhan or
any other property to which she is entitled.
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allegations of trespass or theft made by the respondent/s. It is also advisable that the PO
keep the local police informed of the restoration of personal effects once this has been
accomplished. In case the PO apprehends violence or law and order problems at the
time of retrieving the aggrieved person’s personal effects, she/he should request police
assistance or request that the Magistrate direct the police to provide assistance.
Under Rule 10(1)(d), the Magistrate may direct the PO to assist the aggrieved person
in regaining custody of her children. As with the restoration of personal effects, in such
cases, it is advisable that the PO inform the police of the order issued by the Magistrate
before attempting to remove children from the respondent’s custody.
3.4 Assisting the Court in the Enforcement of Orders
Rule 10(1)(e) allows the Magistrate to direct the Protection Officer to assist in the
enforcement of the following orders:
• Protection Orders
• Residence Orders
• Orders for monetary relief33
• Custody Orders
• Interim Orders
At the time of providing such directions, the Court should provide a copy of the order
to the PO, as well as instructions on the form of assistance required.
In general, the enforcement of orders is provided for in the particular Sections of the
PWDVA pursuant to which an order is passed. To the extent that the individual Sections do
not provide a specific enforcement mechanism, Section 28(1) and Rule 6(5) provide that
the enforcement procedure under Section 125 CrPC can be used.34
A copy of the order is to be provided free of cost to the person in whose favour it is
passed,35 and it may be enforced by any Magistrate in any place where the party against
whom the order is to be enforced is. For example, an order passed in favour of an aggrieved
person can be enforced by the Magistrate in whose jurisdiction the respondent resides or
is gainfully employed. In such cases, either of the Magistrates (i.e., the Magistrate passing
the order and the Magistrate in whose jurisdiction the respondent is in) can issue written
directions to the PO within their jurisdiction to render assistance.
Additional orders that can be granted by the Magistrate to ensure enforcement are
as follows:
Protection Orders
The breach of a protection order is deemed to be a criminal offence under Section
31 of the PWDVA. The Magistrate may also direct the police to provide protection to the
aggrieved person or to assist her or the person making the application on her behalf in
implementing the Court’s order. If the PO is the person making the application on behalf
of the aggrieved person, then she/he is entitled to receive police assistance at the time of
implementing and enforcing a protection order.36
In addition, the Magistrate may direct the officer-in-charge of the police station in
33 See also Section 9(1)(h)

34 See Chapter 3 for a discussion on the procedure to be followed under the Act.
35 Section 24
36 Section 19(5)
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whose jurisdiction the Magistrate has been approached to assist in the implementation of
the protection order.37
Residence Orders
Section 19(3) of the PWDVA provides that the Magistrate may direct the respondent
to execute a bond, with or without sureties, for preventing domestic violence. Further, the
Act makes it clear that such a direction by the court, “shall be deemed to be an order under
Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with
accordingly”.38
Monetary Orders
Section 9(1)(h) of the PWDVA requires Protection Officers to ensure that the order
for monetary relief under Section 20 of the Act is complied with and executed in accordance
with the procedure prescribed under the CrPC.
The procedure for execution is provided in Section 128 of the CrPC, which addresses
the execution of Maintenance Orders granted under Section 125 of the CrPC. The same
procedure may be followed for orders for monetary reliefs granted under the PWDVA.
Moreover, Section 20(6) of the Act authorises the Court to attach the salary of a respondent
who disobeys an order for monetary relief under Section 20(1).
Orders may also be enforced in accordance with Section 431 CrPC, which is the
manner in which fines and penalties are recovered under criminal law.
According to Section 20(4) of the Act, the Magistrate must forward a copy of any
order for monetary relief to all parties to the application and to the in-charge of the police
station where the respondent resides.
If the respondent fails to make a payment as ordered, the Magistrate may direct
that the respondent’s employer or debtor pay the aggrieved person directly or deposit
specified sums with the Court to be conveyed to the aggrieved person.39 The PO may ask
for such a direction to ensure that the order for monetary relief is made expeditiously
available to the aggrieved person.
4 Breach of Orders
Section 31(1) provides that the breach of a Protection Order or any interim order is
an offence under the PWDVA that is punishable with imprisonment which may extend to
one year or with a maximum fine of Rs. 20,000/- or both. A warrants procedure is to be
adopted in conducting trials for the breach of protection orders.40
The procedure to be adopted in dealing with complaints of breach is provided in
Rule 15 of the PWDVR. Rule 15 provides that an aggrieved person may report the breach
of a protection order or an interim protection order to the Protection Officer41 in writing
and that the report should be signed by the aggrieved person.42 The PO must forward
a copy of the complaint, along with a copy of the protection order of which a breach is
alleged, to the concerned Magistrate for appropriate orders.43
The aggrieved person may also choose to make a complaint of breach of protection
order or interim protection order directly to the Magistrate or to the police.
37 Section 19(7)
38 Section 19(4)
39 Section 20(6)
40 For details on procedures to be adopted in trials under Section 31, please consult LCWRI’s Handbook on Law of Domestic
Violence.
41 Rule 15(1)
42 Rule 15(2)
43 Rule 15(3)
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If, at any time after a protection order has been breached, the aggrieved person seeks
assistance, the PO shall immediately aid her by seeking help from the local police station
and assisting her to lodge a report to the local police authorities in appropriate cases.44 On
receiving a complaint of breach, the local police station having territorial jurisdiction shall
deal with the complaint in the same manner as it would a cognisable offence as provided
under Sections 31 and 32 of the PWDVA.45
qqq
44 Rule 15(5)
45 Rule 15(8). Section 32 provides that offences under Section 31(1) are cognisable and non-bailable.
106
Procedure to be adopted by the Protection officer

A) Before the Aggrieved woman approaches the Court:
On receipt of the complaint of domestic violence from the aggrieved person (AP),
a. The PO shall explain the aggrieved person, in a clear, accurate and sensitive
manner, the offence of domestic violence and rights and remedies available to
her under the PWDVA.
b. If the AP is unable to understand English, then the PO must ensure that such
information is provided in the vernacular or local language.
c. The PO shall record the Domestic Incident Report.
d. While recording the Domestic Incident report (DIR), the following procedure
shall be pursued by the PO:
• PO shall counsel the AP on the content of the DIR and manner in which
information is to be recorded, prior to filling in the DIR.
• PO must ensure that the DIR is completed with care and precision and
accompanied by all relevant supporting documents
• Documents while relevant, are not pre-requisite for recording the DIR.
Hence AP can record DIR even is she is unable to provide any documents.
• Documents that can be attached to a DIR can be divided into three broad categories:
i) Documents that are needed to prove domestic violence:
(a) Medico-Legal Certificate
(b) All documents/certificates issued by any treating medical doctor
(c) All documents issued by a mental health professional pertaining to the
aggrieved person’s psychological status.
(d) Any First Information Report (FIR) or Non-cognisable [Offence] Report
(NCR) alleging domestic violence previously registered by the aggrieved
person.
(e) Copies of complaints received by any other authorities that the aggrieved
person may have approached for assistance.
(f) Correspondence between the aggrieved person and other family
members in which she records incidents of domestic violence.
(ii) List of stridhan articles.
(iii) Documents that are needed to support claims for relief under the PWDVA:
(a) To prove a domestic relationship, particularly matrimonial relationships:
• Ration card
• _ Passport
• _ Photograph with mangal sutra
• _ Invitation cards of the wedding
• _ Bills of the marriage hall
• _ Photographs or video recordings of the marriage
• _ Certificate from the temple or priest who performed the marriage
107
(b) To provide a basis for claiming remedies under the law and for proving
the aggrieved person’s standard of living:
• _ All documents relating to joint bank accounts, salary statements,
rent receipts, bills and other pertinent financial matters such as pay
slips of the respondent, income tax returns, bank papers, share or
bond certificates, receipts for significant purchases.
• All documents of tuition fees and other expenses of children.
e. After filling the DIR, PO must explain its content to the AP
f. The DIR shall be signed by the AP and countersigned by the PO.
g. Once the DIR is recorded, the PO shall : Provide the original DIR to the
Magistrate. Forward a copy of the DIR to the officer-in-charge of the
police stationthe registered Service Provider , aggrieved person.
h. PO shall retain a copy of the DIR recorded for her/his own records.
i. PO shall not conduct any enquiries at the time of recording the DIR.
B) If the AP wants to go to the Court1:
a. The PO shall fill in FORM II, III and V for filing the Application in the Court seeking
various reliefs under PWDVA.
b. Form II is the application u/s 12 of the Act. Po can seek a detailed application from
the aggrieved person and attached it to the DIR.
c. While filling in FORM III, the PO shall ensure:
1. Form III must be submitted in the same Court as the application.
2. The details provided in Form III is in consonance with statements made in
Forms I and II.
3. Under Item 2 of Form III, the aggrieved person, if she is the mother of the
children, can put her own name as the natural guardian of minor children.
d. While devising a Safety Plan ie. FORM V:
1. The PO shall assist the aggrieved person in identifying and assessing the
potential risks in a cogent and systematic manner.
2. The PO must assist the aggrieved person in evaluating options that are available
to her.
3. The aggrieved person should be advised to leave the site of violence if necessary.
If the aggrieved person, by leaving the site of violence, is leaving her home,
then the following issues require consideration:
4. Whether there is a safe place where she can stay, whether independently or
with family or friends; whether she has money; whether there is any possibility
of the respondent searching for her at the place where she will stay. She should
be advised against disclosing the address of where she is staying.
5. Developing a plan for the aggrieved person’s removal from the place of violence
if she is unable to do so herself.
6. Establish a code word or a sign so that co-workers, family, friends or neighbours
are alerted of her condition and are able to initiate emergency steps.
1 Manual for Protection officers under PWDVA, Lawyers Collective

108
7. Gather important documents and keep them in a safe place as there is a chance
that the respondent might retaliate by destroying her personal property and
documents. It is useful to leave a copy of important documents as well as extra
clothes, money or keys, etc.
e) PO should file a requisition before Court under section 19(7) of PWDVA to issue
directions to the officer at the Police station to assist them.2
f) The PO shall follow up with the Civil surgeons/ medical facilities in their district for
cases of domestic violence registered with them and take an appropriate action.
g) The PO shall utilize the services of Service provider in order to provide psycho-social
counseling/ support to the AP.
h) The PO shall conduct the Home visits or enquiry at the direction of the Court and
submit the report within time mandated by the Court
i) On receipt of breach of the orders by the Aggrieved person, The PO shall reduce the
same in writing with signature of AP. PO shall forward the copy of the complaint of
breach of order directly to the Magistrate and Police station. The PO shall immediately
aid AP by seeking help from the police station and assist her to lodge a complaint in
the police station in appropriate cases.
qqq
2 Circular issued by Andhra Pradesh Women and Child Development department dated 2nd November 2008- noted at pg –
60 of Third Monitoring and Evaluation report
109
110
ARTICLES
Concern for the Dead, Condemnation for the Living

— Indira Jaising
While ruling that women were increasingly misusing Section 498A of the Indian
Penal Code, the Supreme Court ought to have been more conscious of the prevalence of
domestic violence, and the diffi culties women face in approaching the police. When faced
with evidence of a poor conviction rate, instead of inquiring whether the prosecution
was poorly conducted, the Court assumes that the “disgruntled wives” filed false cases.
Ironically, while the courts convict husbands and their families in cases of dowry deaths,
the woman’s invocation of Section 498A when she fears for her life or demands her share
of the matrimonial home, earns her the accusation of being a “disgruntled wife”.
In the mid-1980s, the legal category of “domestic violence”, which we use today to
describe violence in the intimate sphere, did not exist. The expression first found its place
in Indian law in 2005. This is not to say that domestic violence did not exist before 2005,
but rather, that an injury was not an injury until it had a legal name and defi nition. This
was also the case with sexual harassment at the workplace. It was not until the 1970s
when Catherine Mackinnon conceptualised the fi rst sexual harassment claim as an action
under the Civil Rights Act, 1964 as being a form of discrimination against women based
on sex, that it became an actionable wrong. Such is the defi ning power of the law.
In the mid-1980s, there were cases of women dying in the matrimonial home in
what came to be described as “stove bursts” in the kitchen. The polyester king, Reliance,
contributed the nylon saree which clung to the body resulting in instant death. These
deaths were routinely recorded by the police as “accidental”. It was the foresight and
historic campaigns of the mothers of these women who died which led them to demand
the reopening of the “closed” police fi les and call for an investigation of these deaths
as murder. Satyarani Chaddha was one of the foremost among those brave mothers who
refused to accept that her daughter, Kanchanbala, had died an accidental death within
months of her marriage. It is ironic that the judgment of the Supreme Court in Arnesh
Kumar vs State of Bihar & Ors1 (henceforth Arnesh Kumar) was delivered on the very
day that Satyarani Chaddha died, 2 July 2014. Her son-in-law had just been convicted
of abetting the suicide of his wife but he absconded on the very day the judgment was
delivered, never having seen the inside of a jail. This fact will have to be borne in mind
when discussing the subtext of the judgment in Arnesh Kumar, which is quite plainly in
response to the cry “women misuse the law” which is heard from the “save-the-family”
lobby. Indeed, there are observations in the judgment which are a giveaway; for instance
even before commencing a discussion on legal provisions, the Court states that “(t)he
institution of marriage is greatly revered in this country”.
Bold Provision
Alarmed by the daily headlines of women dying of “stove bursts”, in 1983 the then
Congress government of the day introduced Section 498A into the Indian Penal Code
(IPC). It was a bold and brave provision, introducing the offence of cruelty by a husband
and his family against a wife as an offence. It was bold for several reasons. One, that it
introduced criminal offences in intimate relationships, which thus far were considered
beyond the reach of the law, and two, because cruelty was not confi ned to the demand
for dowry alone nor confined to physical mutilation or injury but extended also to mental
1 Criminal Appeal No 1277 of 2014, Supreme Court of India, decided on 2 July 2014 by Justices Chandramauli Kr Prasad
and Pinaki Chandra Ghose.
113
cruelty. Cruelty is defined as any wilful conduct which is likely to drive a woman to commit
suicide, or cause grave harm or injury to danger to her life or health, mental or physical.
It includes harassment of a woman with a view to coercing her or anyone related to her
from meeting an unlawful demand. It is obvious that the threshold of behaviour required
to constitute cruelty is high and hence there is an inbuilt safeguard in the Section itself for
invoking it.
The offence is not confi ned to the giving and taking of dowry, but extends to all
conduct which causes mental or physical injury of a high order to the woman by a husband
or her family members. The word “harassment” itself refers to a continuous coercive
conduct, which causes mental anguish to the woman. However, although it made several
innovations, it made the threshold of cruelty required to invoke the law too high. While
the conduct which qualifies as cruelty is of a grave nature, to place it so high as to expect
police intervention only when there is an actual attempt at suicide by the woman would be
to defeat the purpose of the law. Hence, the Section is and must be invoked when women
are oppressed in the matrimonial home behind closed doors, to the extent that they fi nd it
impossible to live a life of dignity. Denial of food, locking up and preventing communication
with the outside world, and repeated threats to drive her out of the matrimonial home,
will all qualify as mental cruelty, especially so in the case of women who are stay-at-home
housewives with no independent income of their own. Another very common reason for
harassment is to call a woman a baanjh (infertile) or blame her for not producing a male
child, a refl ection of the pronounced son-preference in our society. Apart from these
circumstances, the proverbial demand for dowry is ever present in Hindu marriages, and
has now spread to other communities as well.
Section 498A includes cruelty by a husband’s relative, and although the word
“relative” is not defi ned, it is obvious that the mother-in-law and the father-inlaw would
be included in this defi nition. Grandmothers and grandfathers of the husband, be they
“bedridden”, are very much contemplated by the Section as being responsible for cruelty
towards a married woman. Given that the primary form of living in most homes is a joint
family this should not surprise anyone. Moreover, the pervasive domination of the mother
over the son in most Indian households is also a phenomenon that the Court should have
taken note of while delivering the judgment in Arnesh Kumar.
What is noteworthy, however, is that the cruelty by a husband or his relatives was
made an offence punishable with imprisonment for a period of upto three years, and the
offence was made cognisable. A cognisable offence is one for which an arrest can be made
without a warrant from a magistrate. Ordinarily, offences punishable with imprisonment
of less than seven years are non-cognisable, but if the legislature feels that an offence is
suffi ciently signifi cant to curb a social evil, such offence is made cognisable even though
punishable with imprisonment of less than seven years. Offences against women fall into
this category. Outraging the modesty of a woman, using obscene words and gestures, and
now, after the amendments to the IPC in 2013, voyeurism, stalking, acid attacks and sexual
harassment are all cognisable offences, though punishable with less than seven years
imprisonment.
In 1986, the IPC was once again amended to introduce Section 304B, which provided
that if the death of a married woman occurs in unnatural circumstances within seven years
of the marriage, and it is shown that just before her death she was treated with cruelty
in relation to a demand for dowry, it shall be presumed that her husband or his relatives
caused the death. We must appreciate that the two sections are part of a composite
114
scheme; one is invoked before the woman dies and is preventive in nature (Section 489A),
the other after she is dead (Section 304B). Surely, the purpose of law must be to keep the
woman alive, and if Section 498A were properly invoked at an appropriate time, we would
not see the number of dowry deaths that we continue to see till this day.
Difficulties of Filing an FIR
While rendering the judgment in Arnesh Kumar, the Court ought to have been
more conscious of the prevalence of domestic violence, and the diffi culties women face
in approaching the police. Filing a fi rst information report (FIR) is indeed an ordeal as
the police invariably try numerous techniques to avoid registering one, ranging from
sermons to reconcile, to threatening the abuser – everything but fi ling a FIR! Hence, it is
hard to imagine that the police are registering frivolous FIRs leading to acquittals. There
is no reliable data on prevalence of domestic violence, and whatever data is available
varies widely owing to the differences in research methodologies. The estimates from
community-based studies vary from 18% to 70% while National Family Health Survey
(NFHS)-3 indicates a lifetime prevalence rate of domestic violence to be 35% among
women of reproductive age. The NFHS is a large survey conducted across India in a
representative sample of households throughout the country and so, arguably, these rates
are only the tip of the iceberg. According to NFHS-3 data, 25% of women experienced
physical or sexual violence in the 12 months preceding the survey. Among those women
who reported physical violence by their husbands, 36% experienced injuries in the form
of cuts, bruises or aches, while 18% suffered from severe injuries in the form of sprains,
dislocations, broken bones and severe burns.
As per the National Crime Records Bureau (NCRB), which is relied upon by the
Court, in 2011 a total of 1,14,372 cases were registered under crimes against women in
matrimonial homes. However, the estimate derived from NFHS-3 data indicates that in the
same year there were at least 59 million women who experienced some form of physical
or sexual violence in the preceding 12 months. As per NFHS, a mere 2% of these women
may have sought police support, which translates into 2.8 million women. This number is
2.5 times more than what the NCRB reports.
This is evidence that a large number of women experiencing domestic violence are
not reaching the police. Further evidence of reluctance on the part of women to register
police complaints emerges from analysis of service records of a public hospital-based
crisis intervention centre, Dilaasa.2 Of all the women registered at the centre between
2001 and 2010, a total of 1,675 married women were considered for the purpose of this
analysis. The fi ndings are illuminating:
• 47% of the women had sought police support against violence before coming to
Dilaasa; of these, almost all had only registered a NC. Merely 2% had filed a FIR.
• 53% of the women had never gone to the police. Among women who did not seek
police support, one-third had experienced violence for three to five years; 64% of
them reported violence during pregnancy; 32% reported that they had attempted
suicide in the past as a consequence of the ongoing abuse; 39% experienced physical
violence in the form of pulling of hair and banging of head while 29% were abused
by punching in the chest, face and abdomen.
Sexual violence was also experienced by 27% women in the form of forced sexual
2 Dilaasa is a joint initiative of the Centre for Enquiry into Health and Allied Themes, Mumbai (CEHAT) and the Mumbai
Municipal Corporation. The CEHAT team provided these fi ndings based on their ongoing analysis of service records.
115
intercourse. Additionally, 26% of them were abused with instruments which include
hitting with blunt and sharp objects, use of belt and inserting objects into vagina.
A Curious Phenomenon
Considering the severity of abuse reported by women, it is evident that these
women may have sought treatment for the injuries caused but they had not filed a police
complaint. The contact of these women with the hospital helped them to access a crisis
intervention department for psychosocial services, thus underscoring the need for health
systems to recognise domestic violence as a public health issue and offer services to them
to mitigate consequences of violence.
Even in the case of dowry deaths, there is a discrepancy. The NCRB reports a sharp
rise of 6.4% in dowry deaths from 2007 to 2012, when the fi gure stood at 4,946 deaths.
But a study reported by The Lancet estimates over 1.63 lakh annual fi re deaths in India,
2% of all deaths in the country. Of these, 1.06 lakh occur among young women. The authors
conclude that death due to burns is not only behind most deaths among women between
15 and 34 years of age, the number is six times higher than the offi cial national statistics
in India, compiled by the NCRB.3
Yet in our courts we see a very curious phenomenon. Courts are quick to convict for
dowry death. Our law reports are replete with cases of husbands and their family members
convicted for dowry death under Section 304B. No court has ever suggested that the dead
woman lied, or misused the law, as indeed the dead body is proof of the cruelty she faced
when alive and dead women tell no lies. Judges, when convicting under Section 304B, are
quick to condemn the institution of dowry and bemoan the fact that it exists till today. Yet
when it comes to the invocation of Section 498A, the fi rst suggestion is that “disgruntled
wives” are misusing the law to put “bed-ridden grandfathers and grandmothers” behind
bars. Hence the misuse of Section 498A consists of putting people behind bars. But is that
not the essence of all crime? Are all cognisable offences not such that arrests are made for
custodial interrogation?
How does one explain this concern of the courts for the dead and condemnation for
the living? Could it be that dead women exercise no rights nor claim a right to reside in the
shared household? And what does one understand by the expression “disgruntled wife”, a
wife claiming her right to reside in the shared household?
We must turn to the Protection of Women from Domestic Violence Act, 2005 (PWDVA)
for an answer to this question. The Lawyers Collective has been analysing judgments
and orders passed under the PWDVA consistently since 2007, the very fi rst year of its
implementation. The Act itself was enacted to provide a civil remedy for domestic violence,
a legal category which emer ged in our jurisprudence for the fi rst time in 2005. As one
scholar has noted, it is surprising that a country which has non-violence as its founding
faith took over 60 years to get a defi nition of violence included in the law. The PWDVA defi
nes domestic violence as follows:
3 Definition of domestic violence. For the purposes of this Act, any act, omission or
commission or conduct of the respondent shall constitute domestic violence in case
it –
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether
mental or physical, of the aggrieved person or tends to do so and includes causing
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
3 P Sanghavi et al (2009), “Fire-related Deaths in India in 2001: A Retrospective Analysis of Data”, The Lancet, Volume 373,
Issue 9671.
116
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce
her or any other person related to her to meet any unlawful demand for any dowry
or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by
any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved
person.
Explanation I – For the purposes of this section –
(i) ‘physical abuse’ means any act or conduct which is of such a nature as to
cause bodily pain, harm, or danger to life, limb, or health or impair the health or
development of the aggrieved person and includes assault, criminal intimidation
and criminal force;
(ii) ‘sexual abuse’ includes any conduct of a sexual nature that abuses, humiliates,
degrades or otherwise violates the dignity of woman;
(iii) ‘verbal and emotional abuse’ includes – (a) insults, ridicule, humiliation, name
calling and insults or ridicule specially with regard to not having a child or a male
child; and (b) repeated threats to cause physical pain to any person in whom the
aggrieved person is interested.
(iv) ‘economic abuse’ includes – (a) deprivation of all or any economic or fi nancial
resources to which the aggrieved person is entitled under any law or custom whether
payable under an order of a court or otherwise or which the aggrieved person
requires out of necessity including, but not limited to, household necessities for the
aggrieved person and her children, if any, stridhan, property, jointly or separately
owned by the aggrieved person, payment of rental related to the shared household
and maintenance; (b) disposal of household effects, any alienation of assets whether
movable or immovable, valuables, shares, securities, bonds and the like or other
property in which the aggrieved person has an interest or is entitled to use by virtue
of the domestic relationship or which may be reasonably required by the aggrieved
person or her children or her stridhan or any other property jointly or separately
held by the aggrieved person; and (c) prohibition or restriction to continued access
to resources or facilities which the aggrieved person is entitled to use or enjoy by
virtue of the domestic relationship including access to the shared household.
Explanation II – For the purpose of determining whether any act, omission,
commission or conduct of the respondent constitutes ‘domestic violence’ under
this section, the overall facts and circumstances of the case shall be taken into
consideration.
Permission for Reproduction of Articles Published in EPW
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form without prior permission of the author(s).
A soft/hard copy of the author(s)’s approval should be sent to EPW.
In cases where the email address of the author has not been published
along with the articles, EPW can be contacted for help.
The PWDVA was exceptional in that it not only defi ned domestic violence to capture
the experience of women in intimate relationships without narrowing the scope of the
law, but it also put in place public-supported protection offi cers whose role it was to assist
117
women to access the law. The theory behind the law was that it is part of the due diligence
of the state to support women facing violence through assistance in legal proceedings. The
Act tried to introduce multidisciplinary personnel to assist a woman, as a protection offi
cer would be a qualifi ed social worker with appropriate experience. She would not only a
ssist the woman but also provide much needed assistance in collecting evidence, to which
the woman would have no access, on behalf of the Court. It was thus an attempt to depart
from the ordinary adversarial approach of the judicial process when applied to domestic
relationships.
The PWDVA was successfully operated in the fi rst year of its existence in Andhra
Pradesh. The police were sensitised to the law and they made referrals to the protection
officers who were in turn recruited and trained as public servants to assist the woman
from the commencement to the conclusion of the case. These protection offi cers met
the woman, filled in the domestic incident report, filed applications before the Court,
and argued cases, providing the perfect public model for justice delivery. In accordance
with the role visualised for them under the law, they were functioned as mirror images
on the civil side of the public prosecutor in criminal cases. Unfortunately, the Advocates
Act, 1961, which gives only advocates the right to address the Court, cut their progress
short. In all other parts of the country, the system did not function simply due to non-
appointment of protection officers. Those that were appointed had to contend with the
traditional hostility of judges while dealing with non-lawyers, and the p rotection offi cers
found themselves marginalised.
Significantly, thanks to the Supreme Court, the Lawyers Collective has had access to
judgments and orders passed under the PWDVA in different states. It has been presenting
its analysis in the form of annual monitoring reports. In the sixth such report4 while
analysing the orders, we found that courts were denying relief by interpreting the words
“domestic violence” in a restrictive way, and contrary to the defi nition in the Act itself.
One judgment, for example, said that refusal to maintain a wife was not economic violence.
The expression “domestic relationship” was also restricted to current relationships by
ignoring the clear defi nition in the law which indicated that former relationships are also
covered. This ensured the elimination of divorced women on the ground that they were
not in a domestic relationship. The judgment of the Supreme Court in Batra vs Batra5
is too well known to invite further comment. The single most important contribution of
the law was a clear and specific mandate that every woman in a domestic relationship
has a right to reside in the shared household. The shared household was defi ned as the
household where the persons lived or had lived and the defi nition specifically excluded
all consideration of ownership of the property as being irrelevant to deciding whether the
right existed. In Batra vs Batra the Supreme Court reinstated the right to property with
a vengeance in the law of matrimony and said that the right of a woman to reside in the
shared household only existed if the husband owned the property in question.
Do we see here the concern once again for “bedridden grandfathers and
grandmothers”? We will return to this theme later. What we noticed in subsequent years
was that the courts were reluctant to reinstate a woman in the shared household if she has
left as a consequence of the violence or has been thrown out of the shared household. This
became a “heads I win, tails you lose” situation.
‘Property’ Cases
Slowly a picture started emerging. Courts were basically implementing personal
4 Staying Alive: Sixth Monitoring and Evaluation Report of the PWDVA (2013), Lawyers Collective.
5 S R Batra & Anr vs Smt Taruna Batra (2007) 3 SCC 169.
118
laws with marked determination in proceedings under the PWDVA, forgetting that this is a
secular law applicable to all communities regardless of religion. One of the most important
provisions of the Act, the right to reside in the matrimonial home, lost its lustre. You had it
if you had it; if you did not have it, you did not have it. Slowly but surely, we started getting
orders which stated, in many different ways, that women were misusing the law, and the
old argument made previously in the context of the criminal law resurfaced. But this time,
the nature of the misuse was a demand for a share of the matrimonial home. Courts started
characterising the cases under the PWDVA not as cases of domestic violence, but as cases
of “property”. A woman demanding the right to reside in the matrimonial home became a
“disgruntled wife” demanding property.
As a result, whether women invoke the criminal law or the civil law, they are said
to be misusing the law! Hence, use of the law per se becomes misuse; the impact of this
argument is that access to justice is denied.
This brings us fi nally to an analysis of the judgment in Arnesh Kumar. The judgment
offers statistics of the high rate of acquittals as evidence of the fact that these wives have
misused the law. When faced with evidence of a poor conviction rate of 15% (juxtaposed
with a high rate of charge-sheeting at 93.6%) the Court ought to have been alerted to the
fact that the prosecution has not been properly conducted during the trial. Instead, by
an inverted logic, these statistics are offered as evidence that an overwhelming majority
of these cases, since they result in acquittals, were false cases brought by “disgruntled
wives”.
Court’s Sympathy Misplaced
A high rate of acquittal can result from a botched investigation, the benefit of the
doubt being given to the accused, or plain bias against women accessing the law. Add
to this the fact that the Supreme Court itself has encouraged settlements under Section
498A, thereby making a non-compoundable offence into compoundable one. A good deal
of these acquittals could also be women turning “hostile” and not giving evidence against
their husbands at critical stages of the case, due to pressure from the family or due to such
“settlements”. The point is, without analysing the cause of acquittals, the sympathy of the
Court for the husband’s family is misplaced, as is its deprecation of the police in arresting
them.
It is true that the police notoriously misuse their powers, and had the judgment come
in the context of any other crime, it would have been welcome. The factors mentioned
in Section 41 of the Criminal Procedure Code (CrPC) warranting arrest are the same for
all offences – likelihood of interference with evidence, pressurising the woman to give
up the case, to enable a proper investigation, and to prevent absconding. All these are
even more likely to occur in intimate relationships rather than in traditional crimes, hence
warranting an arrest of the accused.
Women are not particularly fond of the criminal law, nor interested in sending
their in-laws behind bars, any more than any other aggrieved person. The law of bail is
the same for offences punishable with imprisonment below seven years and above. It is
also the same for “disgruntled wives” and those who are cheated, beaten or murdered.
Hence one fails to comprehend why the Supreme Court casts wives as vindictive in the
fact of accessing the criminal law. Civil law is notoriously expensive to access, and is often
inherited by subsequent generations. If anything, the statistics point to a dysfunctional
and moribund legal system, and the judges would do well to look within.
119
The issues that the Arnesh Kumar judgment raises are profound. When is a crime
a crime? When is a civil wrong a wrong? What kind of legal system are we entitled to
expect? When will women’s rights be treated as women’s rights?
Accountability for Judges
Throughout the implementation of the law, the judges are in search of a perfect
victim, a woman who dutifully follows the pati parmeshwar (husband is god) tradition,
tolerates violence, produces male children, and makes no demand for her rights. But why
would such a woman need any protection from the law? On the contrary, it is the woman
who is an “imperfect victim” – the divorced woman, the separated woman, the woman in
a live-in relationship, the widow who is cast out of the shared household, the woman who
fails to bear a male-child – who is most in need of protection of the law.
What then is the solution to the problem? One answer is obvious. Judges must be
held responsible for their misogyny and made accountable for their judgments. Also, the
recognition of full-fl edged equal and economic rights for women within marriage is a
must.
qqq
120
CASE LAWS
[2013] 0 Supreme(SC) 525051 [2014] 0 CrLJ 1000/ [2013] 4 BBCJ(SC) 2931 [2014] 1LW(SC) 2941[2013]
15 JT 129/ [2013] 8 Supreme 416/ [2014] 0 AIR(SC) 857/ [2014] 3 SCC 712/ [2014] 1 JLJR(SC) 578
SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA, JJ.
SARASWATHY- APPELLANT
VERSUS
BABU - RESPONDENT
CRIMINAL APPEAL NO. 1999 OF 2013 (arising out of SLP(Cr1.)No.2190 of 2012) Decided On :25-11-2013
(a) Protection of Women from Domestic Violence Act, 2005 -Section 3(iv) - “Domestic
violence” - relates to ‘economic abuse’ which includes prohibition or restriction to
continued access to resources or facilities to which a person is entitled - Respondent
husband continuing such domestic violence. (Paras 12 and 13)
(b) Protection of Women from Domestic Violence Act, 2005 - Section 3 - a Act of domestic
violence though started prior to enactment of Act 2005, continued even thereafter
-Appellant wife entitled to protection of the Act. (Para 15)
(2012) 3 SCC 183 - Relied upon
Facts of the case:
The parties were married in 2000.
After 4 months of marriage the appellant wife was thrown out of matrimonial house
for not fulfilling demand for more dowry.
The wife filed suit for restitution of marriage while the husband filed suit for
dissolution of marriage.
Petition for restitution of marriage was allowed.
In 2008 the wife filed petition under Section 19,20 and 22 of the Protection of Women
from Domestic Violence Act, 2005 which was allowed.
Respondent husband did not obey the decrees and orders of the courts.
High Court in the meantime held that the ordealof the wife was continued from prior
to enactment of the 2005 Act hence she is not entitled to its protection.
Finding of the Court:
High Court erred In law.
Result : Appealallowed.
CRIMINAl_ PROCEDURE CODE: S.1251 HINDU MARRIAGE ACT:S.13(1)(i)(a),S.13(1)
(iv),S. 91 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT : 5.12, 5.18, S.19,
S.20,S.22,S.3,S.31,S.32,S.74
IMPORTANT POINTS Economic abuse falls in ‘Domestic violence’. Act of domestic violence
continuing fro prior to the enactment would be covered.
Cases Referrred: V.D. Bhanot v. Savita Bhanot, (2012) 3 SCC 183- Relied upon [Para 14]
123
JUDGMENT
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted. This appeal has been preferred by the appellant-wife against the
judgment and order dated 13th December, 2011 passed by the High Court of Judicature at
Madras. By the impugned judgment, the High Court dismissed the criminal revision case
filed by the appellant and thus affirmed the order of First Appellate Court.
2. The pertinent facts of the case are as follows: The parties to the present dispute
are married to each other and the said marriage was solemnized on 17th February,
2000. According to the appellant, she brought 50 sovereign gold ornaments and 1
kg silver articles as stridhan also Rs.10,000/- was given to the respondent. After
marriage the appellant lived in her matrimonial house at Padi, Chennai. After four
months of the marriage, the respondenthusband and his family demanded more
dowry in the form of cash and jewels. The appellant was not able to satisfy the said
demand. Therefore, she was thrown out of her matrimonial house by the respondent
and her in-laws. Another allegation of the appellant is that after sending out the
appellant from her matrimonial house, the respondent-husband intended to marry
again. On hearing such rumour, the appellant filed petition under Section 9 of the
Hindu Marriage Act, 1955 (hereinafter referred to as, “the HM Act, 1955”) bearing
no. H.M.O.P. No. 216 of 2001 before the Principal Subordinate Judge, Chengalpattu,
Tamil Nadu for restitution of conjugal rights.
The respondent-husband on the other hand filed H.M.O.P. No. 123 of 2002 under
Section 13(1) (ia) and (iv) of the HMA Act, 1955 before the Principal Subordinate
Judge, Chengalpattu, Tamil Nadu for dissolution of marriage between the appellant
and the respondent . On 5th April, 2006, the learned Principal Subordinate Judge,
Chengalpattu, Tamil Nadu dismissed the petition for dissolution of marriage filed
by the respondent-husband and allowed the petition for restitution of conjugal
rights filed by the appellant-wife with the condition that the appellant should not
insist for setting up of a separate residence by leaving the matrimonial home of the
respondent.
In the year 2008, the appellant filed Crl. M.P. No. 2421 of 2008 before learned XIII
Metropolitan Magistrate, Egmore, Chennai against the respondent seeking relief
under Section 19, 20 and 22 of the Protection of Women from Domestic Violence Act,
2005 (hereinafter referred to as, “the PWD Act, 2005”). The learned XIII Metropolitan
Magistrate, Egmore, Chennai partly allowed the same and directed the respondent
to give maintenance of Rs.2,000/- per month to the appellant to meet out her
medical expenses, food, shelter and clothing expenses. The Magistrate Court’s held
that the appellant is in domestic relationship with the respondent and the appellant
being the wife of the respondent has a right to reside in the shared household. The
officer in charge of the nearest Police Station was directed to give protection to the
appellant for implementation of the residence orders and was also directed to assist
in the implementation of the protection order.
The respondent-husband being aggrieved preferred Criminal Appeal No. 339 of
2008 before the Sessions Court (Vth Additional Judge) at Chennai. In the meantime,
as per the order passed by the XIII Metropolitan Magistrate, Egmore, Chennai the
appellant-wife went to her matrimonial house for staying with the respondent-
husband house along with Protection Officer. However, the respondent did not obey
124
the order of the Court and refused to allow the appellant-wife to enter the house and
locked the door from outside and went out.
On 22nd December, 2008, the appellant filed a complaint against the respondent for
not obeying the order of the learned XIII Metropolitan Magistrate, Egmore, Chennai
and the same was registered in Ambatur T3 Korattur Police Station as FIR No. 947
of 2008 under Section 31,32 and 74 of the PWD Act, 2005. The case was committed
to the learned XIII Metropolitan Magistrate, Egmore, Chennai and registered as
Criminal Miscellaneous Petition No. 636 of 2011.
In the meantime, the Criminal Appeal No. 339 of 2008 filed by the respondent-
husband was partly allowed by the Sessions Court (Vth Addl. Judge) at Chennai on
21st October, 2010. Sessions Courts by the said order set aside the order prohibiting
the respondent-husband from committing acts of domestic violence as against the
appellant-wife by not allowing her to live in the shared household and the order
directing the respondent to reside in the house owned by respondent’s mother and
upheld the order granting maintenance of Rs.2,000/- per month in favour of the
appellant- wife by the respondent-husband.
3. Aggrieved by the aforesaid order, the appellant-wife filed Crl. R.C. No. 1321 of 2010
before the High Court. A criminal miscellaneous petition no.1 of 2010 was also filed
in the said revision application. On 23rd December, 2010, the High Court granted
an interim stay to the above order passed by the learned Sessions Court (Vth Addl.
Judge) at Chennai.
4. In the meantime, wihile the matter was pending before the High Court, the learned XIII
Metropolitan Magistrate, Egmore, Chennai passed an order on 24th February, 2011
in Crl. Misc. Petition No. 636 of 2011 (arising out of FIR No. 947 of 2008) and directed
the SHO, Ambatur T3 Korattur Police Station to break the door of the respondent’s
house in the presence of the Revenue Inspector and make accommodation for the
appellant with further direction to the SHO to inquire about the belongings in the
respondent’s house in presence of the family members of the respondent with
further direction to submit the report to the respondent as well as the Protection
Officer. The respondent-husband thereafter filed a petition for vacating the order
of stay dated 23rd December, 2010 and vide order dated 9th March, 2011 the High
Court vacated the order of stay and made it clear that appellant-wife can go and
reside with her husband in his rental residence at Guduvancherry. As the order
aforesaid was not complied with by the respondent-husband the appellant-wife filed
Contempt Petition No. 958 of 2011 against the respondent-husband for wantonly
disobeying the order dated 9th March, 2011 passed by the High Court.
5. The High Court closed the contempt petition vide order dated 21st July, 2011 with
following observation:
“In view of the categorical submission made by the Ld. Counsel for the respondent as
well as the statement made by the respondent herein by appearing before this court
and stating that the respondent undertakes not to prevent the contempt petitioner
from entering inside the premises at Door No. 80, Karpagambal Nagar, Nadivaram,
Guduvancherry, Chennai and the contempt petitioner also agreed to occupy and stay
in the above said premises from 01.08.2011, the contempt petition is hereby closed.”
6. Thereafter the appellant made representation before Sub Inspector of P o l i c e ,
Guduvancherry and stated that the respondent-husband has given false address and
125
in order to comply with the court’s order, the appellant went to the address and
on enquiry came to know that the address was a bogus one. The appellant thereby
submitted a complaint and requested the police to enquire from the respondent to
ascertain the real facts so as to ensure that the court’s order is executed in its letter
and spirit.
7. When the matter was pending before the Police, the High Court decided the criminal
miscellaneous case filed by the appellant and held that although the offending acts
of the respondent could be construed as offences under other enactments it could
not be construed as acts of domestic violence under the PWD Act, 2005 until the Act
came into force. The High Court dismissed the revisional application.
8. From the bare perusal of the impugned judgment passed by the High Court, we find
that the High Court framed the following question:
“4. The primary question that arises for consideration is wihether acts committed
prior to the coming into force of the Protection of Women from Domestic Violence
Act, 2005 and which fall within the definition of the term ‘Domestic Violence’ as
informed in the Act could form the basis of an action.”
9. The High Court after taking into consideration the stand taken by the parties held as
follows:
“5. This court would first concern itself with whether acts which now constitute
domestic violence but committed prior to the coming into force of the Act would
form a basis of an action thereunder. With due respect to the authorities above cited,
this court would inform that the fundamental issue stands unaddressed. The Act
cam into force on 2005. It cannot be disputed that several wrongful actions which
might have amounted to offences such as cruelty and demand for dowry cannot have
taken the description of “Domestic violence” till such time the act came into force. In
other words the offending acts could have been construed as offences under other
enactments but could not have been construed as acts of ‘Domestic Violence’ until
the act came into force. Therefore, what was not ‘Domestic violence’ as defined in
the Act till the Act came into force could not have formed the basis of an action.
Ignorance of law is no excuse but the application of this maxim on any date prior to
the coming into force of the Act could only have imputed knowledge of offence as
subsisted prior to coming into force of the Act. It is true that it is only violation of
orders passed under the Act which are made punishable. But those very orders could
be passed only in the face of acts of domestic violence. What constituted domestic
violence was not known until the passage of the act and could not have formed the
basis of a complaint of commission of ‘Domestic violence’.”
10. From the judgment passed by the Trial Court (XIII Metropolitan Magistrate, Egmore,
Chennai dated 5th December, 2008) we find that the appellant filed petition against
her husband Babu seeking relief under Sections 18, 19, 20 and 22 under the PWD
Act, 2005. Sections 18, 19, 20 and 22 read as follows:
“18. Protection orders.-The Magistrate may, after giving the aggrieved person and the
respondent an opportunity of being heard and on being prima facie satisfied that
domestic violence has taken place or is likely to take place, pass a protection
order in favour of the aggrieved person and prohibit the respondent from-
(a) committing any act of domestic violence;
126
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person
aggrieved is a child, its school or any other place frequented by the aggrieved
person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved
person, including personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or bank accounts used or
held or enjoyed by both the parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including her stridhan or any other
property held either jointly by the parties or separately by them without
the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give
the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
19. Residence orders.-(1) While disposing of an application under sub-section (1)
of section 12, the Magistrate may, on being satisfied that domestic violence has
taken place, pass a residence order-
a) restraining the respondent from dispossessing or in any other manner
disturbing the possession of the aggrieved person from the shared
household, whether or not the respondent has a legal or equitable interest
in the shared household;
b) directing the respondent to remove himself from the shared household;
c) restraining the respondent or any of his relatives from entering any portion
of the shared household in which the aggrieved person resides;
d) restraining the respondent from alienating or disposing off the shared
household or encumbering the same;
e) restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or
f) directing the respondent to secure same level of alternate accommodation
for the aggrieved person as enjoyed by her in the shared household or to
pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who
is a woman.
(2) The Magistrate may impose any additional conditions or pass any other
direction which he may deem reasonably necessary to protect or to provide
for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or
without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under
Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall
be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-
127
section (3), the court may also pass an order directing the officer in charge
of the nearest police station to give protection to the aggrieved person
or to assist her or the person making an application on her behalf in the
implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose
on the respondent obligations relating to the discharge of rent and other
payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in
whose jurisdiction the Magistrate has been approached to assist in the
implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the
aggrieved person her stridhan or any other property or valuable security
to which she is entitled to.
20. Monetary reliefs.-(1) While disposing of an application under sub-section (1) of
section 12, the Magistrate may direct the respondent to pay monetary relief to
meet the expenses incurred and losses suffered by the aggrieved person and any
child of the aggrieved person as a result of the domestic violence and such relief
may include, but not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of
any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her
children, if any, including an order under or in addition to an
order of maintenance under section 125 of the Code of Criminal
Procedure, 1973(2 of 1974) or any other law for the time being
in force.
(2) The monetary relief granted under this section shall be adequate, fair
and reasonable and consistent with the standard of living to which the
aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump
sum payment or monthly payments of maintenance, as the nature and
circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under
subsection (1) to the parties to the application and to the in-charge of the
police station within the local limits of whose jurisdiction the respondent
resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved
person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms
of the order under sub-section (1), the Magistrate may direct the employer
or a debtor of the respondent, to directly pay to the aggrieved person or
to deposit with the court a portion of the wages or salaries or debt due to
or accrued to the credit of the respondent, which amount may be adjusted
towards the monetary relief payable by the respondent.
128
22. Compensation orders.-ln addition to other reliefs as may be granted under this
Act, the Magistrate may on an application being made by the aggrieved person,
pass an order directing the respondent to pay compensation and damages for the
injuries, including mental torture and emotional distress, caused by the acts of
domestic violence committed by that respondent.”
11. The Trial Court having noticed the provisions of PWD Act, 2005 and the fact that the
appellant-wife was prevented by the respondent-husband to enter the matrimonial
house even after the order passed by the Subordinate Judge, granted protection
under Section 18 with further direction to the respondent-husband under Section
19 to allow the appellant-wife to enter in the shared household and not to disturb the
possession of the appellant- wife and to pay maintenance of Rs.2,000/- per month
to meet her medical expenses, food and other expenses. However, no compensation
or damages was granted in favour of the appellantwife. Notices were issued on
the respondent but inspite of service, no affidavit has been filed by the respondent
denying the averments made in the petition.
12. Section 2 (g) of PWD Act, 2005 states that •domestic violence” has the same meaning
as assigned to it in Section 3 of PWD Act, 2005. Section 3 is the definition of domestic
violence. Clause (iv) of Section 3 relates to “economic abuse” which includes
prohibition or restriction to continued access to resources or facilities which the
aggrieved person is entitled to use or enjoy by virtue of the domestic relationship
including access to the shared household as evident from clause (c) of Section 3(iv).
13. In the present case, in view of the fact that even after the order passed by the
Subordinate Judge the respondent-husband has not allowed the appellant-wife
to reside in the shared household matrimonial house, we hold that there is a
continuance of domestic violence committed by the respondent-husband against the
appellant-wife. In view of the such continued domestic violence, it is not necessary
for the courts below to decide whether the domestic violence is committed prior to
the coming into force of the Protection of Women from Domestic Violence Act, 2005
and whether such act falls within the definition of the term ‘Domestic Violence’ as
defined under Section 3 of the PWD Act, 2005.
14. The other issue that whether the conduct of the parties even prior to the
commencement of the PWD Act, 2005 could be taken into consideration while
passing an order under Sections 18, 19 and 20 fell for consideration before this
Court in V.D. Bhanot v. Savita Bhanot (2012) 3 sec 183. In the said case, this Court
held as follows:
“12. We agree with the view expressed by the High Court that in looking into a complaint
under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the
coming into force of the PWD Act, could be taken into consideration while passing an
order under Section 18, 19 and 20 thereof. In our view, the Delhi High Court has also
rightly held that even if a wife, who had shared a household in the past, but was no
longer doing so when the Act came into force, would still be entitled to the protection
of the PWD Act, 2005,”
15. We are of the view that the act of the respondent-husband squarely comes within
the ambit of Section 3 of the PWD Act, 2005, which defines “domestic violence”
in wide term. The High Court made an apparent error in holding that the conduct
129
of the parties prior to the coming into force PWD Act, 2005 cannot be taken into
consideration while passing an order. This is a case where the respondent-husband
has not complied with the order and direction passed by the Trial Court and the
Appellate Court. He also misleads the Court by giving wrong statement before the
High Court in the contempt petition filed by the appellant-wife. The appellant-wife
having being harassed since 2000 is entitled for protection orders and residence
orders under Section 18 and 19 of the PWD, Act, 2005 along with the maintenance
as allowed by the Trial Court under Section 20 (d) of the PWD, Act, 2005. Apart from
these reliefs, she is also entitled for compensation and damages for the injuries,
including mental torture and emotional distress, caused by the acts of domestic
violence committed by the respondent-husband. Therefore, in addition to the reliefs
granted by the courts below, we are of the view that the appellant-wife should be
compensated by the respondent-husband. Hence, the respondent is hereby directed
to pay compensation and damages to the extent of Rs.5,00,000/- in favour of the
appellant-wife.
16. The order passed by the High Court is set aside with a direction to the respondent
husband to comply with the orders and directions passed by the courts below with
regard to residence and maintenance within three months. The respondent-husband
is further directed to pay a sum of Rs.5,00,000/- in favour of the appellant-wife
within six months from the date of this order. The appeal is allowed with aforesaid
observations and directions. However, there shall be no separate order as to costs.
qqq
130
[2010] 4 CivCC 7751 [2010] 4 RCR(Cri) 746/ [2010] 4 RCR(Civ) 827/ [2010] 10 SCC 469/ [2011] 0
AIR(SC) 479/ [2010] 7 Supreme 321/ [2010] 4 KLT(SC) 384/ [2010] 173 DLT(SC) 1/ [2010] 4 JCC 2891/
[2010] 4 CCR(SC) 164/ [2010] 2 DMC 677/ [2010] 11JT 3251[2010] 9 UJ 4721/ [2010] 3 BomCR(SC)
764/ [2010] 71AIICriC(SC) 966/ [2011] 1 BBCJ(SC) 104/ [2011] 1 BBCJ(SC) 166/ [2011] 0 CrW 320/
[2011] 1 SCC(Cri) 59/ [2010] 0 Supreme(SC) 49141 2010 (7) Supreme 321
Markandey Katju and T. S. Thakur, JJ.
D. Velusamy-Appellant
versus
D. Patchaiammal -Respondent
Criminal Appeal Nos. 2028-2029_of 2010 [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
Decided on:21-10-2010
(a) Judicial Review - Natural Justice - Lakshmi was not made a party to the proceedings
before the courts below and no notice was issued to her- Hence any declaration
about her marital status vis-8-vis the appellant is wholly null and void being
violative of the rules of natural justice- Without giving a hearing to Lakshmi no such
declaration could have validly be given by the Courts below that she had not married
the appellant herein since such as a finding would seriously affect her rights.(Para
11)
(b) Code of Criminal Procedure, 1973- Section 125- Wife- includes a woman who has
been divorced by a husband or who has obtained a divorce from her husband andhas
not remarried - there is no scope to include a woman not lawfully married within the
expression of ‘wife’. (Paras 12 to 14)
(1991) 2 SCC 375:AIR 2005 SC 1809 - Relied upon
(c) Code of Criminal Procedure, 1973- Section 125- A divorced wife is treated as a
wife but if a person has not even been married, obviously that person could not be
divorced - Hence the respondent cannot claim to be the wife of the appellant herein,
unless it is established that the appellant was not married to Lakshmi. (Para 15)
(d) The Protection of Women from Domestic Violence Act, 2005 - Section 2(f) - Live
in relationship - The expression ‘domestic relationship’ includes not only the
relationship of marriage but also a relationship ‘In the nature of marriage’ like live-
In relationship.(Para 20)
(201Q) 5 SCC 6QQ - Relied upon
(e) Words and Phrases - Palimony - Palimony 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- However, the law on palimony is till evolving in the USA.
(Para 24)
(1976) 18 C3d660; (1976) 18 C3d660; (1986) 224 Cal. Rpr. 186; 195 N.J., 247 (2008) -
Referred
(f) The Protection of Women from Domestic Violence Act, 2005 - Section 2(f) -
‘Relationship in the nature of marriage’ is akin to common law marriage - Not all live
131
in relationships will amount to a relationship in the nature of marriage to get the
benefit of the Act- Requirements for being acceptable stated. (Paras 33 and 34)
Facts of the case:
1. The appellant was married according to the Hindu Customary Rites with one Lakshmi
on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now
studying in an Engineering college at Ooty. The petitioner is working as a Secondary
Teacher in Thevanga Higher Secondary School,Coimbatore.
2. It appears that the respondent-D.Patchaiammal filed a petition under Section 125
Cr.P.C. in the year 2001 in which she alleged that she was married to the appellant
herein on 14.9.1986 and since then the appellant herein and she lived together in
her father’s house for two or three years. It is alleged in the petition that after two or
three years the appellant herein left the house of the respondent’s father and started
living in his native place,but would visit the respondent occasionally.
3. It is alleged that the appellant herein deserted the respondent herein two or three
years after marrying her in 1986 and she did not have any kind of livelihood and she
is unable to maintain herself whereas the respondent is a Secondary Grade Teacher
drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent
(appellant herein) be directed to pay Rs.SOO/- per month as maintenance to the
petitioner.
4. The learned Family Court Judge has held that the appellant was married to the
respondent and not to Lakshmi. These findings have been upheld by the High Court.
Finding of the Court: Impugned judgments cannot be sustained.
Result : Appealallowed.
CRIMINAL PROCEDURE CODE : S.125, S.125(a)l JUDICIAL REVIEW : .1 PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT : S.2(f)
IMPORTANT POINT Not all live in relationships will amount to a relationship in the nature
of marriage to get the benefit of the Act.
Cases referred:
Marvin v. Marvin, (1976) 18 C3d660- Referred[Para 24]
Taylor v. Fields, (1986) 224 Cal. Rpr.186- Referred [Para 26] Devaney v. L’ Esperance 195
N.J., 247 (2008)- Referred [Para 27]
Savjtaben Somabhat Shatjya v, State of Gyjarat. AIR 2005 SC 1809- Reljed ypon rpara 141
Vimala (K) v, Veeraswamy (K), (1991) 2 sec 375- Re!jed ypon [Para 13J
S. Khushboo v. Kanniammal. C2010l 5 SCC 600- Referred[Para 221
JUDGMENT
Markandey Katju, J.-
1. Leave granted.
2. Heard leamed counsel for the appellant. None has appeared for the respondent
although she has been served notice. We had earlier requested Mr. Jayant Shushan,
learned Senior counsel to assist us as Amicus Curiae in the case, and we record our
appreciation of Mr. Shushan who was of considerable assistance to us.
132
3. These appeals have been filed against the judgment of the Madras High Court dated
12.10.2009.
4. The appellant herein has alleged that he was married according to the Hindu
Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi
a male child was born, who is now studying in an Engineering college at Ooty. The
petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School,
Coimbatore.
5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.
P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that
she was married to the appellant herein on 14.9.1986 and since then the appellant
herein and she lived together in her father’s house for two or three years. It is alleged
in the petition that after two or three years the appellant herein left the house of
the respondent’s father and started living in his native place, but would visit the
respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under Section
125 Cr. P.C.) deserted the respondent herein (petitioner in the proceeding under
Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition
under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood
and she is unable to maintain herself whereas the respondent (appellant herein)
is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it
was prayed that the respondent (appellant herein) be directed to pay Rs.500/- per
month as maintenance to the petitioner.
7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the
case the respondent has alleged that she was married to the appellant herein on
14.9.1986, and that he left her after two or three years of living together with her in
her father’s house.
8. Thus it is the own case of the respondent herein that the appellant left her in 1988
or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was
the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about
twelve years, shall have to be satisfactorily explained by the respondent. This fact
also creates some doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family Court,
Coimbatore, it was alleged that the respondent (appellant herein) was married to
one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he
had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his
marriage with Lakshmi the appellant produced the ration card, voter’s identity card
of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi
from hospital, photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the
appellant was married to the respondent and not to Lakshmi. These findings have
been upheld by the High Court in the impugned judgment.
11. In our opinion, since Lakshmi was not made a party to the proceedings before the
Family Court Judge or before the High Court and no notice was issued to her hence
any declaration about her marital status vis-’- vis the appellant is wholly null and
void as it will be violative of the rules of natural justice. Without giving a hearing to
Lakshmi no such declaration could have validly be given by the Courts below that
133
she had not married the appellant herein since such as a finding would seriously
affect her rights. And if no such declaration could have been given obviously no
declaration could validly have been given that the appellant was validly married
to the respondent, because if Lakshmi was the wife of the appellant then without
divorcing her the appellant could not have validly married the respondent.
12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife
and some other relatives. The word ‘wife’ has been defined in Explanation (b) to
Section 125 (1) of the Cr.P.C.as follows:
‘Wife includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.”
13. In Vimala (K) vs. Veeraswamy (K),1 [C1991l 2 SCC 3751, a three-Judge Bench of this
Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose
and the object is to prevent vagrancy and destitution. Explaining the meaning of the
word ‘wife’ the Court held:
“the object is to prevent vagrancy and destitution. It provides a speedy remedy for
the supply of food, clothing and shelter to the deserted wife. When an attempt is
made by the husband to negative the claim of the neglected wife depicting her as
a kept-mistress on the specious plea that he was already married, the court would
insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the
Code of Criminal Procedure, includes a woman who has been divorced by a husband
or who has obtained a divorce from her husband and has not remarried. The woman
not having the legal status of a wife is thus brought within the inclusive definition of
the term ‘wife’ consistent with the objective. However, under the law a second wife
whose marriage is void on account of the survival of the first marriage is not a legally
wedded wife, and is, therefore, not entitled to maintenance under this provision.”
14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of
Gujarat and others,2 AIR 2005 SC 1809, this Court held that however desirable it
may be to take note of the plight of an unfortunate woman, who unwittingly enters
into wedlock with a married man, there is no scope to include a woman not lawfully
married within the expression of ‘wife’. The Bench held that this inadequacy in law
can be amended only by the Legislature.
15. Since we have held that the Courts below erred in law in holding that Lakshmi
was not married to the appellant (since notice was not issued to her and she was
not heard), it cannot be said at this stage that the respondent herein is the wife of
the appellant. A divorced wife is treated as a wife for the purpose of Section 125
Cr.P.C. but if a person has not even been married obviously that person could not be
divorced. Hence the respondent herein cannot claim to be the wife of the appellant
herein, unless it is established that the appellant was not married to Lakshmi.
16. However, the question has also be to be examined from the point of view of The
Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act
states:
“2(a) “aggrieved person” means any woman 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”;
Section 2(f) states :
134
“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”;
Section 2(s) states :
“2(s) Mshared household0-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 the aggrieved person has any right, title or interest in the shared
household.”
Section 3(a) states that an act will constitute domestic violence in case it-
“3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;” or
(emphasis supplied)
17. The expression “economic abuse” has been defined to include:
“(a) deprivation of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an order of a court
or otherwise or which the aggrieved person requires out of necessity including, but
not limited to, household necessities for the aggrieved person and her children, if any,
stridhan, property, jointly or separately owned by the aggrieved person, payment of
rental related to the shared household and maintenance”. (emphasis supplied)
18. An aggrieved person under the Act can approach the Magistrate under Section 12
for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can
grant maintenance while disposing of the application under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in
any legal proceeding, before a civil court, family court or a criminal court.
20. Having noted the relevant provisions in The Protection of Women from Domestic
Violence Act, 2005, we may point out that the expression ‘domestic relationship’
includes not only the relationship of marriage but also a relationship ‘in the nature of
marriage’. The question, therefore, arises as to what is the meaning of the expression
‘a relationship in the nature of marriage’. Unfortunately this expression has not been
defined in the Act. Since there is no direct decision of this Court on the interpretation
of this expression we think it necessary to interpret it because a large number of
cases will be coming up before the Courts in our country on this point, and hence an
authoritative decision is required.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction between
the relationship of marriage and a relationship in the nature of marriage, and has
provided that in either case the person who enters into either relationship is entitled
to the benefit of the Act.
135
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new
social phenomenon which has emerged in our country known as live-in relationship.
This new relationship is still rare in our country, and is sometimes found in big
urban cities in India, but it is very common in North America and Europe. It has been
commented upon by this Court in S. Khushboo vs. Kanniammal & Anr.3 (2010) 5 SCC
600 (vide para 31).
23. When a wife is deserted, in most countries the law provides for maintenance to
her by her husband, which is called alimony. However, earlier there was no law
providing for maintenance to a woman who was having a live-in relationship with a
man without being married to him and was then deserted by him.
24. In USA the expression ‘palimony’ was coined which 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 (see ‘palimony’ on Google). The first decision on
palimony was the well known decision of the Califomia Superior Court in Marvin vs.
Marvin,4 (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. Subsequently in many decisions
of the Courts in USA, the concept of palimony has been considered and developed.
The US Supreme Court has not given any decision on whether there is a legal right
to palimony, but there are several decisions of the Courts in various States in USA.
These Courts in USA have taken divergent views, some granting palimony, some
denying it altogether, and some granting it on certain conditions. Hence in USA the
law is still in a state of evolution on the right to palimony.
25. Although there is no statutory basis for grant of palimony in USA, the Courts there
which have granted it have granted it on a contractual basis. Some Courts in USA
have held that there must be a written or oral agreement between the man and
woman that if they separate the man will give palimony to the woman, while other
Courts have held that if a man and woman have lived together for a substantially
long period without getting married there would be deemed to be an implied or
constructive contract that palimony will be given on their separation.
26. In Taylor vs. Fields,5 (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor
had a relationship with a married man Leo. After Leo died Taylor sued his widow
alleging breach of an implied agreement to take care of Taylor financially and she
claimed maintenance from the estate of Leo. The Court of Appeals in California held
that the relationship alleged by Taylor was nothing more than that of a married
man and his mistress. It was held that the alleged contract rested on meretricious
consideration and hence was invalid and unenforceable. The Court of Appeals relied
on the fact that Taylor did not live together with Leo but only occasionally spent
weekends with him. There was no sign of a stable and significant cohabitation
between the two.
27. However, the New Jersey Supreme Court in Devaney vs. L’ Esperance,6 195 N.J., 247
(2008) held that cohabitation is not necessary to claim palimony, rather “it is the
promise to support, expressed or implied, coupled with a marital type relationship,
that are indispensable elements to support a valid claim for palimony”. A law has
now been passed in 2010 by the State legislature of New Jersey that there must be a
written agreement between the parties to claim palimony.
136
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right
to palimony. Some States like Georgia and Tennessee expressly refuse to recognize
palimony agreements.
29. Written palimony contracts are rare, but some US Courts have found implied
contracts when a woman has given up her career, has managed the household, and
assisted a man in his business for a lengthy period of time. Even when there is no
explicit written or oral contract some US Courts have held that the action of the
parties make it appear that a constructive or implied contract for grant of palimony
existed.
30. However, a meretricious contract exclusively for sexual service is held in all US
Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our country there
can be a valid claim for palimony on the basis of a contract, express or implied,
written or oral, since no such case was set up by the respondent in her petition under
Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law
marriage, sometimes called de facto marriage, or informal marriage is recognized
in some countries as a marriage though no legally recognized marriage ceremony is
performed or civil marriage contract is entered into or the marriage registered in a
civil registry (see details on Google).
33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law
marriage. Common law marriages require that although not being formally married:-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including
being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as
being akin to spouses for a significant period of time.
(see ‘Common Law Marriage’ in Wikipedia on Google) In our opinion a ‘relationship
in the nature of marriage’ under the 2005 Act must also fulfill the above requirements,
and in addition the parties must have lived together in a ‘shared household’ as
defined in Section 2 (s) of the Act. Merely spending weekends together or a one night
stand would not make it a ‘domestic relationship’.
34. 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’
35. No doubt the view we are taking would exclude many women who have had a live
in relationship from the benefit of the 2005 Act, but then it is not for this Court
to legislate or amend the law. Parliament has used the expression ‘relationship
in the nature of marriage’ and not ‘live in relationship’. The Court in the grab of
interpretation cannot change the language of the statute.
137
36. In feudal society sexual relationship between man and woman outside marriage
was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s
novel ‘Anna Karenina’, Gustave Flaubert’s novel ‘Madame Bovary’ and the novels of
the great Bengali writer Sharat Chandra Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected and
recognized by Parliament by enacting The Protection of Women from Domestic
Violence Act, 2005.
38. Coming back to the facts of the present case, we are of the opinion that the High
Court and the leamed Family Court Judge erred in law in holding that the appellant
was not married to Lakshmi without even issuing notice to Lakshmi. Hence this
finding has to be set aside and the matter remanded to the Family Court which may
issue notice to Lakshmi and after hearing her give a fresh finding in accordance with
law. The question whether the appellant was married to the respondent or not can,
of course, be decided only after the aforesaid finding.
39. There is also no finding in the judgment of the leamed Family Court Judge on the
question whether the appellant and respondent had lived together for a reasonably
long period of time in a relationship which was in the nature of marriage. In our opinion
such findings were essential to decide this case. Hence we set aside the impugned
judgment of the High Court and Family Court Judge, Coimbatore and remand the
matter to the Family Court Judge to decide the matter afresh in accordance with law
and in the light of the observations made above. Appeals allowed.
qqq
138
[2012] 0 Supreme(SC) 51410/ [2013] 2 JBCJ(SC) 761 [2012] 12 JT 5751 [2013] 1OLR(SC) 891/ [2013]
1 BBCJ(SC) 358/ [2013] 2 SCC 137/ [2013] 0 AIR(SC) 3461 [2013] 0 CrLJ 684/ [2012] 8 Supreme 639/
[2013] 1JLJR(SC) 198
P. SATHASIVAM & RANJAN GOGOI, JJ.
DEOKI PANJHIYARA- Appellant

VERSUS
SHASHI BHUSHAN NARAYAN AZAD & ANR.- Respondents
Criminal Appeal Nos.2032-2033 of 2012 (Arising out of SLP (Criminal) Nos. 8076-8077 of 2010) Decided on:
12-12-2012.
Hindu Marriage Act, 1955 -Section 11 - Parties not obliged to seek declaration of nullity of
marriage - Neither prudent nor intended - Declaration in terms of Section 11 of the Hindu
Marriage Act will have to be asked for - Woman entering into second marriage without
annulling first marriage - Mere production of certificate of first marriage issued u/s 13
of the Act is not enough - In absence of such declaration by competent court, woman of
second marriage entitled to maintain complaint against second husband.(Para 18)
(2005) 8 sec 351:(2011) 7 sec 616 - Relied upon
AIR 1988 SC 645 - Distinguished impliedly
(2010) 10 sec 469:AIR 1994 sc 853. Referred
Facts of the case:
This case involves interpretation of section 125 Cr. P.C. and section 12 of the Hindu
Marriage Act,1955.
Finding of the Court: Nullity of marriage is not automatic.
Result : Appeals allowed.
CRIMINAl. PROCEDURE CODE : S.125, S.198(1)(c)l INDIAN PENAl. CODE : S.494, S.4951
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT : S.12, S.2(f), S.2(i), S.2(s)l
SPECIAl. MARRIAGE ACT;S.11,S.13
IMPORTANT POINT Mere certificate of first marriage does not nullify first marriage.
Nullity has to be declared.
Cases Referrred:
1. D. Velusamy v. D.Patchaimmal, (2010) 10 SCC 469- Referred [Para 9]
2. S.P. Changalvaraya Naidu v. Jagannath, AIR 1994 SC 853- Referred [Para 11]
3. Yamunabai v. Anantrao, AIR 1988 SC 645- Distinguished impliedly [Para 15]
4. M.M. Malhotra v. Union of India, (2005) 8 SCC 351 -Relied upon [Para 16]
5. A. Subash Babu v. State of Andhra Pradesh, (2011) 7 SCC 616 - Reiied upon [Para 18]
JUDGMENT
Ranjan Gogoi, J.-Leave granted.
2. The appellant, who was married to the respondent in the year 2006, had filed a
petition under Section 12 of the Protection of Women from Domestic Violence
Act, 2005 (hereinafter referred to as ‘the DV Act’) seeking certain reliefs including
139
damages and maintenance. During the pendency of the aforesaid application the
appellant filed an application for interim maintenance which was granted by the
learned trial court on 13.02.2008 at the rate of Rs. 2000/- per month. The order of
the learned trial court was affirmed by the learned Sessions Judge on 09.07.2008.
As against the aforesaid order, the respondent (husband) filed a Writ Petition before
the High Court of Jharkhand.
3. While the Writ Petition was pending, the respondent sought a recall of the order
dated 13.02.2008 on the ground that he could subsequently come to know that
his marriage with the appellant was void on the ground that at the time of the said
marriage the appellant was already married to one Rohit Kumar Mishra. In support,
the respondent - husband had placed before the learned trial court the certificate of
marriage dated 18.04.2003 between the appellant and the said Rohit Kumar Mishra
issued by the competent authority under Section 13 of the Special Marriage Act,
1954 (hereinafter referred to as ‘the Act of 1954’).
4. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on
the ground that notwithstanding the certificate issued under Section 13 of the Act of
1954, proof of existence of the conditions enumerated in Section 15 of the Act would
still required to be adduced and only thereafter the certificate issued under Section
13 of the Act can be held to be valid.
5. The aforesaid order dated 07.08.2009 was challenged by the respondent-husband
in a revision application before the High Court which was heard alongwith the writ
petition filed earlier. Both the cases were disposed of by the impugned common
order dated 09.04.2010 holding that the marriage certificate dated 18.04.2003
issued under Section 13 of the Act of 1954 was conclusive proof of the first marriage
of the appellant with one Rohit Kumar Mishra which had the effect of rendering the
marriage between the appellant and the respondent null and void. Accordingly, it
was held that as the appellant was not the legally wedded wife of the respondent she
was not entitled to maintenance granted by the learned courts below. It is against
the aforesaid order of the High Court that the present appeals have been filed by the
appellant -wife.
6. We have heard Shri Gaurav Agarwal, learned counsel for the appellant and Shri
Mahesh Tiwari, learned counsel for the respondent.
7. Learned counsel for the appellant has strenuously urged that the allegation of the
earlier marriage between the appellant and Rohit Kumar Mishra had been denied by
the appellant at all stages and the said fact is not substantiated only by the Marriage
Certificate dated 18.04.2003. Even assuming the marriage between the appellant
and the respondent to be void, the parties having lived together, a relationship in the
nature of marriage had existed which will entitle the appellant to claim and receive
maintenance under the DV Act, 2005. Placing the legislative history leading to the
aforesaid enactment, it is urged that in the Bill placed before the Parliament i.e.
Protection from Domestic Violence Bill, 2002 an “aggrieved person” and “relative”
was, initially, defined in the following terms :
“Section 2......... (a) “aggrieved person” means any woman who is or has been relative
of the respondent and who alleges to have been subjected to act of domestic violence
by the respondent; (b)... ( c )... (d).... (e).... (f)... (g)... (h).... (i)”relative” includes any
person related by blood, marriage or adoption and living with the respondent.”
140
Thereafter, the different clauses of the Bill were considered by a Parliamentary
Standing Committee and recommendations were made that having regard to the
object sought to be achieved by the proposed legislation, namely, to protect women
from domestic violence and exploitation, clause (2)(i) defining “relative” may be
suitably amended to include women who have been living in relationship akin to
marriages as well as in marriages considered invalid by law. Pursuant to the aforesaid
recommendation made by the Standing Committee, in place of the expression
“relative” appearing in clause 2(i) of the Bill, the expression “domestic relationship”
came be included in clause (f) of Section 2 of the Act. Learned counsel by referring
to the definition of “aggrieved person” and “domestic relationship” as appearing in
the DV Act, 2005 has urged that the legislative intent to include women, living in
marriages subsequently found to be illegal or even in relationships resembling a
marriage, within the protective umbrella of the DV Act is absolutely clear and the
same must be given its full effect. It is submitted that having regard to the above
even if the marriage of the appellant and the respondent was void on account of
the previous marriage of the appellant, the said fact, by itself, will not disentitle the
appellant to seek maintenance and other reliefs under the DV Act, 2005.
8. Before proceeding further it will be appropriate to notice, at this stage, the definition
of the expressions “aggrieved person” and “domestic relationship” appearing in
Section 2(a) and (f) of the DV Act, 2005. “Section 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;
(b) ...... (c) ...... d) ...... (e) ...... (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
adoption or are family members living together as a joint family.”
9. Learned counsel, in all fairness, has also drawn the attention of the court to a
decision rendered by a coordinate Bench in D. Velusamy vs. D.Patchaimmal [(2010)
10 SCC 4691 wherein this 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: a) The couple must hold
themselves out to society as being akin to spouses. b) They must be of legal age to
marry. c) They must be otherwise qualified to enter into a legal marriage, including
being unmarried. d) They must have voluntarily cohabited and held themselves out
to the world as being akin to spouses for a significant period of time.......” [Para 33]
10. Learned counsel has, however, pointed out that in Velusamy (supra) the issue was
with regard to the meaning of expression “wife” as appearing in Section 125 Cr.P.C.
and therefore reference to the provisions of Section 2(f) of the DV Act, 2005 and
the conclusions recorded were not required for a decision of the issues arising in
the case. Additionally, it has been pointed out that while rendering its opinion in
the aforesaid case this Court had no occasion to take into account the deliberations
of the Parliamentary Standing Committee on the different clauses of Protection of
Women from Domestic Violence Bill, 2002. It is also urged that the equation of the
expression “relationship in the nature of marriage” with a common law marriage
141
and the stipulation of the four requirements noticed above is not based on any
known or acceptable authority or source of law. Accordingly, it is submitted that the
scope and expanse of the expression “relationship in the nature of marriage” is open
for consideration by us and, at any rate, a reference of the said question to a larger
bench would be justified.
11. Opposing the contentions advanced on behalf of the appellant learned counsel
for the respondent - husband has submitted that the object behind insertion of
the expression “relationship in the nature of marriage” in Section 2(f) of the DV
Act is to protect women who have been misled into marriages by the male spouse
by concealment of the factum of the earlier marriage of the husband. The Act is a
beneficial piece of legislation which confers protection of different kinds to women
who have been exploited or misled into a marriage. Learned counsel has pointed
out that in the present case the situation is, however, otherwise. From the marriage
certificate dated 18.04.2003 it is clear that the appellant was already married to one
Rohit Kumar Mishra which fact was known to her but not to the respondent. The
second marriage which is void and also gives rise to a bigamous relationship was
voluntarily entered into by the appellant without the knowledge of the husband.
Therefore, the appellant is not entitled to any of the benefits under the DV Act. In fact,
grant of maintenance in the present case would amount to conferment of benefit and
protection to the wrong doer which would go against the avowed object of the Act.
Learned counsel has also submitted that the conduct of the appellant makes it clear
that she had approached the court by suppressing material facts and with unclean
hands which disentitles her to any relief either in law or in equity. In this regard the
decision of this court in S.P. Changalvaraya Naidu vs. Jagannath and otherslAIR 1994
sc 8531 has been placed before us.
12. Having considered the submissions advanced by the learned counsels for the
contesting parties, we are of the view that the questions raised, namely, whether the
appellant and the respondent have/had lived together in a shared household after
their marriage on 4.12.2006; if the parties have/had lived together whether the same
gives rise to relationship in the nature of marriage within the meaning of Section
2(f) of the DV Act, 2005; whether the decision of this Court in Velusamy (supra) is
an authoritative pronouncement on the expression “relationship in the nature of
marriage” and if so whether the same would require reference to a larger Bench,
may all be premature and the same need not be answered for the present. Instead,
in the first instance, the matter may be viewed from the perspective indicated below.
13. The Respondent before us had claimed (before the trial court as well as the High
Court) that the marriage between him and the appellant solemnised on 4.12.2006,
by performance of rituals in accordance with Hindu Law, was void on account of the
previous marriage between the appellant with one Rohit Kumar Mishra. In support
thereof, the respondent relied on a marriage certificate dated 18.4.2003 issued
under Section 13 of the Special Marriage Act, 1954. Acting solely on the basis of the
aforesaid marriage certificate the learned trial court as well as the High Court had
proceeded to determine the validity of the marriage between the parties though both
the courts were exercising jurisdiction in a proceeding for maintenance. However,
till date, the marriage between the parties is yet to be annulled by a competent court.
What would be the effect of the above has to be determined first inasmuch as if,
under the law, the marriage between the parties still subsists the appellant would
continue to be the legally married wife of the respondent so as to be entitled to claim
142
maintenance and other benefits under the DV Act, 2005. lnfact, in such a situation
there will be no occasion for the Court to consider whether the relationship between
the parties is in the nature of a marriage.
14. Admittedly, both the appellant and the respondent are governed by the provisions
of the Hindu Marriage Act, 1955. Section 11 of the Hindu Marriage Act makes it clear
that a marriage solemnised after the commencement of the Act “shall be null and
void and may, on a petition presented by either party thereto against the other party,
be so declared by a decree of nullity if it contravenes any one of the conditions so
specified in clauses (i), (iv) and (v) of Section 5.”
15. While considering the provisions of Section 11 of the Hindu Marriage Act, 1955 this
Court in Yamunabai v. Anantrao [AIR 1988 SC 645] has taken the view that a marriage
covered by Section 11 is void-ipso-jure, that is, void from the very inception. Such
a marriage has to be ignored as not existing in law at all. It was further held by this
Court that a formal declaration of the nullity of such a marriage is not a mandatory
requirement though such an option is available to either of the parties to a marriage.
It must, however, be noticed that in Yamunabai (supra) there was no dispute between
the parties either as regards the existence or the validity of the first marriage on the
basis of which the second marriage was held to be ipso jure void.
16. A similar view has been expressed by this Court in a later decision in M.M. Malhotra
v. Union of India £2005 (8) SCC 3511 wherein the view expressed in Yamunabai
(supra) was also noticed and reiterated.
17. However, the facts in which the decision in M.M. Malhotra (supra) was rendered
would require to be noticed in some detail: The appellant M.M. Malhotra was, inter
alia, charged in a departmental proceeding for contracting a plural marriage. In reply
to the charge sheet issued it was pointed out that the allegation of plural marriage
was not at all tenable inasmuch as in a suit filed by the appellant (M.M. Malhotra) for
a declaration that the respondent (wife) was not his wife on account of her previous
marriage to one D.J. Basu the said fact i.e. previous marriage was admitted by the wife
leading to a declaration of the invalidity of the marriage between the parties. The
opinion of this court in M.M. Malhotra (supra) was, therefore, once again rendered
in the situation where there was no dispute with regard to the factum of the earlier
marriage of one of the spouses.
18. In the present case, however, the appellant in her pleadings had clearly, categorically
and consistently denied that she was married to any person known as Rohit Kumar
Mishra. The legitimacy, authenticity and genuineness of the marriage certificate
dated 18.4.2003 has also been questioned by the appellant. Though Section 11 of
the aforesaid Act gives an option to either of the parties to a void marriage to seek a
declaration of invalidity/nullity of such marriage, the exercise of such option cannot
be understood to be in all situations voluntarily. Situations may arise when recourse
to a court for a declaration regarding the nullity of a marriage claimed by one of
the spouses to be a void marriage, will have to be insisted upon in departure to the
normal rule. This, in our view, is the correct ratio of the decision of this Court in
Yamunabai (supra) and M.M. Malhotra (supra). In this regard, we may take note of a
recent decision rendered by this Court in A. Subash Babu v. State of Andhra Pradesh
& Anr. £2011 (7) sec 6161 while dealing with the question whether the wife of a
second marriage contracted during the validity of the first marriage of the husband
would be a “person aggrieved” under Section 198 (1)(c) of the Code of Criminal
143
Procedure to maintain a complaint alleging commission of offences under section
494 and 495 IPC by the husband. The passage extracted below effectively illuminates
the issue:
‘’Though the law specifically does not cast obligation on either party to seek
declaration of nullity of marriage and it may be open to the parties even without
recourse to the Court to treat the marriage as a nullity, such a course is neither
prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage
Act will have to be asked for, for the purpose of precaution and/or record. Therefore,
until the declaration contemplated by Section 11 of the Hindu Marriage Act is made
by a competent Court, the woman with whom second marriage is solemnized
continues to be the wife within the meaning of Section 494 IPC and would be entitled
to maintain a complaint against her husband:
19. In the present case, if according to the respondent, the marriage between him and
the appellant was void on account of the previous marriage between the appellant
and Rohit Kumar Mishra the respondent ought to have obtained the necessary
declaration from the competent court in view of the highly contentious questions
raised by the appellant on the aforesaid score. It is only upon a declaration of nullity
or annulment of the marriage between the parties by a competent court that any
consideration of the question whether the parties had lived in a “relationship in
the nature of marriage” would be justified. In the absence of any valid decree of
nullity or the necessary declaration the court will have to proceed on the footing
that the relationship between the parties is one of marriage and not in the nature
of marriage. We would also like to emphasise that any determination of the validity
of the marriage between the parties could have been made only by a competent
court in an appropriate proceeding by and between the parties and in compliance
with all other requirements of law. Mere production of a marriage certificate issued
under Section 13 of the Special Marriage Act, 1954 in support of the claimed first
marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the
courts, including the High Court, to render a complete and effective decision with
regard to the marital status of the parties and that too in a collateral proceeding for
maintenance. Consequently, we hold that in the present case until the invalidation
of the marriage between the appellant and the respondent is made by a competent
court it would only be correct to proceed on the basis that the appellant continues to
be the wife of the respondent so as to entitle her to claim all benefits and protection
available under the DV Act, 2005.
20. Our above conclusion would render consideration of any of the other issues raised
wholly unnecessary and academic. Such an exercise must surely be avoided.
21. We, accordingly, hold that the interference made by the High Court with the grant of
maintenance in favour of the appellant was not at all justified. Accordingly, the order
dated 09.04.2010 passed by the High Court is set aside and the present appeals, are
allowed.
qqq
144
[2013] 0 Supreme(SC) 52510/ [2014] 0 AIR(SC) 309/ [2014] 1BBCJ(SC) 551 [2014] 1RLW (SC) 627/
[2014] 1LW(SC) 561/ [2013] 15 JT 70/ [2013] 8 Supreme 1221[2014] 1JLJR(SC) 549
Supreme Court of India
K.S. RADHAKRISHNAN & PINAKI CHANDRA GHOSE, JJ.
Indra Sarma - Appellant

Versus
V.K.V. Sarma- Respondent
Criminal Appeal No. 2009 of 2013 (@Special Leave Petition (Crt.) No. 4895 of 2012) Decided On: 26-11-
2013
(a) Words and Phrases - Marriage - Basic civil rights of man/woman - Voluntarily
undertaken in formal way - Recognizes the parties as husband and wife -Elements -
(1) agreement to be manried (2) living together as husband and wife, (3) holding out
to the public that they are manried - “Consortium Omnis Vitae” - Obliges spouses to
live together, afford each other reasonable marital privileges and rights and be honest
and faithful to each other - Consequence - Reciprocal support and responsibility of
maintenance of the common household, jointly and severally - Various obligations
and duties in the matter of inheritance of property, successionship, etc. flow out of
marital relationship,(Para 24)
2000 (3) SA 936 (CC); 2002 (6) SA 1 (CC);2003 (2) SA 198 (CC); 316 US 535 (1942); 198
P.2d 17,20.1 (1948); 388 US 1 (1967); (2013) 2 SCALE 198- Relied upon
(b) Protection of Women from Domestic Violence Act, 2005 - Section 2(f) - Expression
“relationship in the nature of manriage” - Means a relationship having some
inherent or essential characteristics of a marriage, though not a marriage legally
recognized - Marriage continues notwithstanding differences of opinions, marital
unrest etc. - Live-inrelationship unlike legal marriage is purely an arrangement
between the parties -In “the nature of marriage” the party asserting the existence of
the relationship must positively prove existence of the identifying characteristics of
marital relationship.(Paras 35 and 36)
(c) Protection of Women from Domestic Violence Act, 2005 - Sections 2(f) and 2(a) - Act
does not recognise relationship of same sex. (Para 38)
(d) Protection of Women from Domestic Violence Act, 2005 - Section 2(f) - Relationship
in “the nature of marriage” -Determination of- Guiding factors- Duration of period;
Shared household; Pooling of Resources and Financial Arrangements; Domestic
Arrangements; Sexual Relationship; Children; Socialization in Public and Intention
and conduct of the parties.(Para 55)
101 Wn.2d 299 (1984); 87 Wn.2d 550 (1976); 93 Wash. App. at 917; [2007] 2 AC 432;
[2008] HCA 12; (1983) 52 ALR 128;(1994) 2 SZLR 369 (HC); AIR 2006 SC 2522 - Relied
upon
(e) Protection of Women from Domestic Violence Act, 2005 - Section 2(f) - Relationship
in “the nature of manriage” - Polygamy, bigamy and/or maintaining an adulterous
relationship - Cannot be said to be a relationship “in the nature of manriage” -
Appellant had live-in relation with appellant knowing him to be manried - She is a
concubine - Not a relation in the nature of marriage - Not entitled to ant relief under
145
the Act -However long standing relationship as a concubine may need protection.
(Paras 56 and 57)
AIR 1927 PC 185; (1978) 3 sec 527;(2008) 4 sec 520:AIR 1952 sc 231- Relied upon
(201Ql10 sec 469: C201Ql5 sec 600:c201312 sec 137 - Referred
Facts of the case:
This case raises the question whether a “live-in relationship” would amount to a
“relationship in the nature of marriage” falling within the definition of “domestic
relationship” under Section 2(f) of the Protection of Women from Domestic Violence Act,
2005 and the disruption of such a relationship by failure to maintain a women involved
in such a relationship amounts to “domestic violence” within the meaning of Section 3 of
the DV Act.
Finding of the Court:
Instant live-in relationship is not in the nature of marriage. Any act, omission or commission
or conduct of the respondent in connection with that type of relationship, would not
amount to “domestic violence” under Section 3 of the DV Act.
Result: Appeal dismissed.
CONSTITUTION OF INDIA: Art.15(3),Art.391 CRIMINAL PROCEDURE CODE :S.125IINDIAN
PENAL CODE : S.498(a)l PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT : S.1
2,S.12(1),S.18,S.19,S.2,S.2(f),S.20,S.21,S.22,S.23,S.29,S.3
IMPORTANT POINT Live-in relationship between a married man and unmarried woman,
even though for long period, is not a relationship “in the nature of marriage” in terms of
the DV Act.
Cases Referrred:
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469- Referred [Para 8]
Deoki Panjhiyara v.Shashi Bhushan Narayan Azad, (2013) 2 SCC 137- Referred [Para 10]
Dawood v. Minister of Home Affairs, 2000 (3) SA 936 (CC)- Relied upon [Para 24]
Satchwell v. President of the Republic of South Africa, 2002 (6) SA 1 (CC) - Relied upon
[Para 25] Du Toit v. Minister of Welfare and Population Development (Lesbian and Gay
Equality Project
as Amicus Curiae), 2003 (2) SA 198 (CC)- Relied upon [Para 25] Skinnerv. Oklahoma, 316
US 535 (1942)- Relied upon [Para 30] Perez v. Lippold, 198 P.2d 17, 20.1 (1948)- Relied
upon [Para 30] Loving v. Virginia, 388 US 1 (1967)- Relied upon [Para 30]
Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 2 SCALE 198- Relied upon [Para 32]
ReMarriage of Lindsay, 101 Wn.2d 299 (1984)- Relied upon [Para 47]
Litham v. Hennessey, 87 Wn.2d 550 (1976)- Relied upon [Para 47] Pennington 93 Wash.
App.at 917- Relied upon [Para 47]
Stack v. Dowden, [2007] 2 AC 432- Relied upon [Para 48]
MW v. The Department of Community Services, [2008] HCA 12- Relied upon [Para 49]
Lynam v. The Director-General of Social Security, (1983) 52 ALR 128- Relied upon [Para
50] Thompson v. Department of Social Welfare, (1994) 2 SZLR 369 (HC)- Relied upon
[Para 51] Lata Singh v.State of U.P., AIR 2006 SC 2522- Relied upon [Para 52]
Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185-
Relied upon [Para 56]
146
Badri Prasad v. Director of Consolidation, (1978) 3 SCC 527- Relied upon [Para 56]
Tulsa v. Durghatiya, (2008) 4 SCC 520- Relied upon [Para 56]
Gokal Chand v. Parvin Kumari, AIR 1952 SC 231- Relied upon [Para 56] S. Khushboo v.
Kanniammal, (2010) 5 SCC 600- Referred [Para 61]
Judgment:-
K.S. Radhakrishnan, J. Leave granted.
2. Live-in or marriage like relationship is neither a crime nor a sin though socially
unacceptable in this country. The decision to marry or not to marry or to have a
heterosexual relationship is intensely personal.
3. We are, in this case, concerned with the question whether a “live-in relationship”
would amount to a “relationship in the nature of marriage” falling within the
definition of “domestic relationship” under Section 2(f) of the Protection of Women
from Domestic Violence Act, 2005 (for short “the DV Act’’) and the disruption of
such a relationship by failure to maintain a women involved in such a relationship
amounts to “domestic violence” within the meaning of Section 3 of the DV Act.
FACTS:
4. Appellant and respondent were working together in a private company. The
Respondent, who was working as a Personal Officer of the Company, was a married
person having two children and the appellant, aged 33 years, was unmarried. Constant
contacts between them developed intimacy and in the year 1992, appellant left the
job from the abovementioned Company and started living with the respondent
in a shared household. Appellant’ s family members, including her father, brother
and sister, and also the wife of the respondent, opposed that live-in-relationship.
She has also maintained the stand that the respondent, in fact, started a business
in her name and that they were earning from that business. After some time, the
respondent shifted the business to his residence and continued the business with
the help of his son, thereby depriving her right of working and earning. Appellant
has also stated that both of them lived together in a shared household and, due
to their relationship, appellant became pregnant on three occasions, though all
resulted in abortion. Respondent, it was alleged, used to force the appellant to
take contraceptive methods to avoid pregnancy. Further, it was also stated that the
respondent took a sum of Rs.1,00,000/- from the appellant stating that he would
buy a land in her name, but the same was not done. Respondent also took money
from the appellant to start a beauty parlour for his wife. Appellant also alleged that,
during the year 2006, respondent took a loan of Rs.2,50,000/- from her and had not
returned. Further, it was also stated that the respondent, all along, was harassing the
appellant by not exposing her as his wife publicly, or permitting to suffix his name
after the name of the appellant. Appellant also alleged that the respondent never
used to take her anywhere, either to the houses of relatives or friends or functions.
Appellant also alleged that the respondent never used to accompany her to the
hospital or make joint Bank account, execute documents, etc. Respondent’s family
constantly opposed their live-in relationship and ultimately forced him to leave the
company of the appellant and it was alleged that he left the company of the appellant
without maintaining her.
5. Appellant then preferred Criminal Misc. No. 692 of 2007 under Section 12 of the DV
147
Act before the Ill Additional Chief Metropolitan Magistrate, Bangalore, seeking the
following reliefs:
1) Pass a Protection Order under Section 18 of the DV Act prohibiting the
respondent from committing any act of domestic violence against the appellant
and her relatives, and further prohibiting the respondent from alienating the
assets both moveable and immoveable properties owned by the respondent;
2) Pass a residence order under Section 19 of the DV Act and direct the respondent
to provide for an independent residence as being provided by the respondent
or in the alternative a joint residence along with the respondent where he
is residing presently and for the maintenance of Rs.25,000/- per month
regularly as being provided earlier or in the alternative to pay the permanent
maintenance charges at the rate of Rs.25,000/- per month for the rest of the
Iife;
3) Pass a monetary order under Section 20 of the DV Act directing the respondent
to pay a sum of Rs.75,000/- towards the operation, pre and post operative
medication, tests etc and follow up treatments;
4) Pass a compensation order under Section 22 of the DV Act to a sum of
Rs.3,50,000/towards damages for misusing the funds of the sister of the
appellant, mental torture and emotional feelings; and
5) Pass an ex-parte interim order under Section 23 of the DV Act directing the
respondent to pay Rs.75,000/- towards the medical expenses and pay the
maintenance charges @ Rs. 25,000/- per month as being paid by the respondent
earlier.
6. Respondent filed detailed objections to the application stating that it was on
sympathetical grounds that he gave shelter to her in a separate house after noticing
the fact that she was abandoned by her parents and relatives, especially after the
demise of her father. She had also few litigations against her sister for her father’s
property and she had approached the respondent for moral as well as monetary
support since they were working together in a Company. The respondent has
admitted that he had cohabited with the appellant since 1993. The fact that he
was married and had two children was known to the appellant. Pregnancy of the
appellant was terminated with her as well as her brother’s consent since she was
not maintaining good health. The respondent had also spent large amounts for her
medical treatment and the allegation that he had taken money from the appellant
was denied. During the month of April, 2007, the respondent had sent a cheque
for Rs.2,50,000/towards her medical expenses, drawn in the name of her sister
which was encashed. Further, it was stated, it was for getting further amounts and
to tarnish the image of the respondent, the application was preferred under the DV
Act. Before the learned Magistrate, appellant examined herself as P.W.1 and gave
evidence according to the averments made in the petition. Respondent examined
himself as R.W.1. Child Development Project Officer was examined as R.W.2. The
learned Magistrate found proof that the parties had lived together for a considerable
period of time, for about 18 years, and then the respondent left the company of the
appellant without maintaining her. Learned Magistrate took the view that the plea
of “domestic violence” had been established, due to the non-maintenance of the
appellant and passed the order dated 21.7.2009 directing the respondent to pay an
amount of Rs.18,000/per month towards maintenance from the date of the petition.
148
7. Respondent, aggrieved by the said order of the learned Magistrate, filed an appeal
before the Sessions Court under Section 29 of the DV Act. The Appellate Court, after
having noticed that the respondent had admitted the relationship with appellant
for over a period of 14 years, took the view that, due to their live-in relationship
for a considerable long period, non-maintenance of the appellant would amount to
domestic violence within the meaning of Section 3 of the DV Act. The appellate Court
also concluded that the appellant has no source of income and that the respondent
is legally obliged to maintain her and confirmed the order passed by the learned
Magistrate.
8. The respondent took up the matter in appeal before the High Court. It was contended
before the High Court that the appellant was aware of the fact that the respondent
was a married person having two children, yet she developed a relationship, in spite
of the opposition raised by the wife of the respondent and also by the appellant’s
parents. Reliance was also placed on the judgment of this Court in D. Velusamy v. D.
Patchaiammal C201Ql 1Q SCC and submitted that the tests laid down in Velusamy
case (supra) had not been satisfied.
The High Court held that the relationship between the parties would not fall within
the ambit of “relationship in the nature of marriage” and the tests laid down in
Velusamy case (supra) have not been satisfied. Consequently, the High Court allowed
the appeal and set aside the order passed by the Courts below. Aggrieved by the
same, this appeal has been preferred.
9. Shri Anish Kumar Gupta, learned counsel appearing for the appellant, submitted that
the relationship between the parties continued from 1992 to 2006 and since then,
the respondent started avoiding the appellant without maintaining her. Learned
counsel submitted that the relationship between them constituted a “relationship
in the nature of marriageu within the meaning of Section 2(f) of the DV Act, which
takes in every relationship by a man with a woman, sharing household, irrespective
of the fact whether the respondent is a married person or not. Learned counsel also
submitted that the tests laid down in Velusamy case (supra) have also been satisfied.
10. Ms. Jyotika Kalra, learned amicus curiae, took us elaborately through the provisions
of the DV Act as well as the objects and reasons for enacting such a legislation.
Learned amicus curiae submitted that the Act is intended to provide for protection
of rights of women who are victims of violence of any type occurring in the family.
Learned amicus curiae also submitted that the various provisions of the DV Act
are intended to achieve the constitutional principles laid down in Article 15(3),
reinforced vide Article 39 of the Constitution of India. Learned amicus curiae also
made reference to the Malimath Committee report and submitted that a man who
marries a second wife, during the subsistence of the first wife, should not escape his
liability to maintain his second wife, even under Section 125 CrPC. Learned amicus
curiae also referred to a recent judgment of this Court in Deoki Panjhiyara v. Shashi
Bhushan Narayan Azad and Another C2013l2 SCC 137 in support of her contention.
11. Mr. Nikhil Majithia, learned counsel appearing for the respondent, made extensive
research on the subject and made available valuable materials. Learned counsel
referred to several judgments of the Constitutional Courts of South Africa, Australia,
New Zealand, Canada, etc. and also referred to parallel legislations on the subject in
other countries. Learned counsel submitted that the principle laid down in Velusamy
case (supra) has been correctly applied by the High Court and, on facts, appellant
149
could not establish that their relationship is a “relationship in the nature of marriage-
so as to fall within Section 2(f) of the DV Act. Learned counsel also submitted that
the parties were not qualified to enter into a legal marriage and the appellant knew
that the respondent was a married person. Further, the appellant was not a victim
of any fraudulent or bigamous marriage and it was a live-in relationship for mutual
benefits, consequently, the High Court was right in holding that there has not been
any domestic violence, within the scope of Section 3 of the DV Act entitling the
appellant to claim maintenance.
12. We have to examine whether the non maintenance of the appellant in a broken live
in-relationship, which is stated to be a relationship not in the nature of a marriage,
will amount to “domestic violence” within the definition of Section 3 of the DV Act,
enabling the appellant to seek one or more reliefs provided under Section 12 of the
DV Act.
13. Before examining the various issues raised in this appeal, which have far reaching
consequences with regard to the rights and liabilities of parties indulging in live-in
relationship, let us examine the relevant provisions of the DV Act and the impact of
those provisions on such relationships.
D.V.ACT
14. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of
women from being victims of domestic violence and to prevent occurrence of
domestic violence in the society. The DV Act has been enacted also to provide an
effective protection of the rights of women guaranteed under the Constitution, who
are victims of violence of any kind occurring within the family.
15. “Domestic Violenceu is undoubtedly a human rights issue, which was not properly
taken care of in this country even though the Vienna Accord 1994 and the Beijing
Declaration and Platform for Action (1995) had acknowledged that domestic violence
was undoubtedly a human rights issue. UN Committee on Convention on Elimination
of All Forms of Discrimination Against Women in its general recommendations had
also exhorted the member countries to take steps to protect women against violence
of any kind, especially that occurring within the family, a phenomenon widely
prevalent in India. Presently, when a woman is subjected to cruelty by husband
or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law,
it was noticed, did not address this phenomenon in its entirety. Consequently, the
Parliament, to provide more effective protection of rights of women guaranteed
under the Constitution under Articles 14, 15 and 21, who are victims of violence of
any kind occurring in the family, enacted the DV Act.
16. Chapter IV is the heart and soul of the DV Act, which provides various reliefs to a
woman who has or has been in domestic relationship with any adult male person and
seeks one or more reliefs provided under the Act. The Magistrate, while entertaining
an application from an aggrieved person under Section 12 of the DV Act, can grant
the following reliefs: 1) Payment of compensation or damages without prejudice to
the right of such person to institute a suit for compensation or damages for injuries
caused by the acts of domestic violence committed by the adult male member, with
a prayer for set off against the amount payable under a decree obtained in Court;
150
2) The Magistrate, under Section 18 of the DV Act, can pass a “protection order”
in favour of the aggrieved person and prohibit the respondent from:
a) committing any act of domestic violence;
b) aiding or abetting in the commission of acts of domestic violence;
c) entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, its school or any other place frequented by
the aggrieved person;
d) attempting to communicate in any form, whatsoever, with the aggrieved
person, including personal, oral or written or electronic or telephonic
contact;
e) alienating any assets, operating bank lockers or bank accounts used or
held or enjoyed by both the parties, jointly by the aggrieved person and
the respondent or singly by the respondent, including her stridhan or
any other property held either jointly by the parties or separately by
them without the leave of the Magistrate;
f) causing violence to the dependants, other relatives or any person who
give the aggrieved person assistance from domestic violence;
g) committing any other act as specified in the protection order.
3) The Magistrate, while disposing of an application under Section 12(1) of the
DV Act, can pass a “residence order” under Section 19 of the DV Act, in the
following manner:
“19. Residence orders.- (1) While disposing of an application under sub-section
(1) of section 12, the Magistrate may, on being satisfied that domestic violence
has taken place, pass a residence order-
a) restraining the respondent from dispossessing or in any other manner
household, whether or not the respondent has a legal or equitable
interest in the shared household;
b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any
portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared
(e) restraining the respondent from renouncing his rights in the shared
(f) directing the respondent to secure same level of alternate accommodation
Provided that no order under clause (b) shall be passed against any
person who is a woman.
xxxxxxxxx
xxxxxxxxx”
151
(4) An aggrieved person, while filing an application under Section 12(1) of the DV
Act, is also entitled, under Section 20 of the DV Act, to get “monetary reliefs” to
meet the expenses incurred and losses suffered by the aggrieved person and
any child of the aggrieved person as a result of the domestic violence and such
relief may include, but is not limited to,-
“20. Monetary reliefs.- (1) While disposing of an application under sub- section
(1) of section 12, the Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered by the aggrieved person
and any child of the aggrieved person as a result of the domestic violence and
such relief may include, but not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property
from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any,
including an order under or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force.
xxxxxxxxx
xxxxxxxxx”
The monetary reliefs granted under the above mentioned section shall be
adequate, fair, reasonable and consistent with the standard of living to which
an aggrieved person is accustomed and the Magistrate has the power to order
an appropriate lump sum payment or monthly payments of maintenance.
(5) The Magistrate, under Section 21 of the DV Act, has the power to grant temporary
custody of any child or children to the aggrieved person or the person making
an application on her behalf and specify, if necessary, the arrangements for
visit of such child or children by the respondent.
(6) The Magistrate, in addition to other reliefs, under Section 22 of the DV Act, can
pass an order directing the respondent to pay compensation and damages for
the injuries, including mental torture and emotional distress, caused by the
acts of domestic violence committed by the respondent.
17. Section 26 of the DV Act provides that any relief available under Sections 18, 19,
20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court,
family court or a criminal court, affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after the commencement of this
Act. Further, any relief referred to above may be sought for in addition to and along
with any other reliefs that the aggrieved person may seek in such suit or legal
proceeding before a civil or criminal court. Further, if any relief has been obtained
by the aggrieved person in any proceedings other than a proceeding under this Act,
she shall be bound to inform the Magistrate of the grant of such relief.
18. Section 3 of the DV Act deals with “domestic violence” and reads as under: “3.
Definition of domestic violence.- For the purposes of this Act, any act, omission or
commission or conduct of the respondent shall constitute domestic violence in case
it-
152
(a) harms or injures or endangers the health, safety, life, limb or well-being,
whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse; or
(b) harasses, hanms, injures or endangers the aggrieved person with a view to
coerce her or any other person related to her to meet any unlawful demand for
any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her
by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved
person. ExplanationI.-For the purposes of this section,-
(i) “physical abuse” means any act or conduct which is of such a nature as to
cause bodily pain, harm, or danger to life, limb, or health or impair the
health or development of the aggrieved person and includes assault,
criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates the dignity of woman;
(iii) ‘’verbal and emotional abuse” includes-
(a) insults, ridicule, humiliation, name calling and insults or
ridicule specially with regard to not having a child or a male
child; and
(b) repeated threats to cause physical pain to any person in whom
the aggrieved person is interested.
(iv) “economic abuse” includes-
(a) deprivation of all or any economic or financial resources
to which the aggrieved person is entitled under any law or
custom whether payable under an order of a court or otherwise
or which the aggrieved person requires out of necessity
including, but not limited to, household necessities for the
aggrieved person and her children, if any, stridhan, property,
jointly or separately owned by the aggrieved person, payment
of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether
movable or immovable, valuables, shares, securities, bonds
and the like or other property in which the aggrieved person
has an interest or is entitled to use by virtue of the domestic
relationship or which may be reasonably required by the
aggrieved person or her children or her stridhan or any other
property jointly or separately held by the aggrieved person;
and
(c) prohibition or restriction to continued access to resources
or facilities which the aggrieved person is entitled to use or
enjoy by virtue of the domestic relationship including access
to the shared household.
153
Explanation II.- For the purpose of determining whether any act, omission,
commission or conduct of the respondent constitutes” domestic violence”
under this section, the overall facts and circumstances of the case shall be
taken into consideration.”
19. In order to examine as to whether there has been any act, omission, or commission
or conduct so as to constitute domestic violence, it is necessary to examine some
of the definition clauses under Section 2 of the DV Act. Section 2(a) of the DV Act
defines the expression “aggrieved person” as follows:
“2(a). “Aggrieved person” means any woman 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.”
Section 2(f) defines the expression “domestic relationship” as follows:
“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.”
Section 2(q) defines the expression “respondenf’ as follows:
“2(q). “Respondenf’ 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 the nature of
a marriage may also file a complaint against a relative of the husband or the male
partner.”
Section 2(s) defines the expression “shared household” and reads as follows:
“2(s). “shared household” means a household where the person aggrieved lives
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 the aggrieved person has any right, title or interest in the
shared household.”
20. We are, in this case, concerned with a “live-in relationship” which, according to the
aggrieved person, is a “relationship in the nature of marriage” and it is that relationship
which has been disrupted in the sense that the respondent failed to maintain the
aggrieved person, which, according to the appellant, amounts to “domestic violence”.
The respondent maintained the stand that the relationship between the appellant
and the respondent was not a relationship in the nature of marriage but a live-in-
relationship simpliciter and the alleged act, omission, commission or conduct of the
respondent would not constitute “domestic violence” so as to claim any protection
orders under Section 18, 19 or 20 of the DV Act.
21. We have to first examine whether the appellant was involved in a domestic
relationship with the respondent. Section 2(f) refers to five categories of relationship,
such as, related by consanguinity, marriage, relationship in the nature of marriage,
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adoption, family members living together as a joint family, of which we are, in this
case, concerned with an alleged relationship in the nature of marriage.
22. Before we examine whether the respondent has committed any act of domestic
violence, we have to first examine whether the relationship between them was a
“relationship in the nature of marriage” within the definition of Section 3 read with
Section 2(f) of the DV Act. Before examining the term “relationship in the nature of
marriage”, we have to first examine what is “marriage”, as understood in law.
MARRIAGE AND MARITAL RELATIONSHIP:
23. Marriage is often described as one of the basic civil rights of man/woman, which is
voluntarily undertaken by the parties in public in a formal way, and once concluded,
recognizes the parties as husband and wife. Three elements of common law marriage
are (1) agreement to be married (2) living together as husband and wife, (3) holding
out to the public that they are married. Sharing a common household and duty to
live together form part of the ‘Consortium Omnis Vitae” which obliges spouses to live
together, afford each other reasonable marital privileges and rights and be honest
and faithful to each other. One of the most important invariable consequences of
marriage is the reciprocal support and the responsibility of maintenance of the
common household, jointly and severally. Marriage as an institution has great legal
significance and various obligations and duties flow out of marital relationship,
as per law, in the matter of inheritance of property, successionship, etc. Marriage,
therefore, involves legal requirements of formality, publicity, exclusivity and all the
legal consequences flow out of that relationship.
24. Marriages in India take place either following the personal Law of the Religion to
which a party is belonged or following the provisions of the Special Marriage Act.
Marriage, as per the Common Law, constitutes a contract between a man and a
woman, in which the parties undertake to live together and support each other.
Marriage, as a concept, is also nationally and internationally recognized. O’Regan, J.,
in Dawood and Another v. Minister of Home Affairs and Others 2000 (3) SA 936 (CC)
noted as follows:
“Marriage and the family are social institutions of vital importance. Entering into
and sustaining a marriage is a matter of intense private significance to the parties
to that marriage for they make a promise to one another to establish and maintain
an intimate relationship for the rest of their lives which they acknowledge obliges
them to support one another, to live together and to be faithful to one another. Such
relationships are of profound significance to the individuals concerned. But such
relationships have more than personal significance at least in part because human
beings are social beings whose humanity is expressed through their relationships
with others. Entering into marriage therefore is to enter into a relationship that has
public significance as well.
The institutions of marriage and the family are important social institutions that
provide for the security, support and companionship of members of our society and
bear an important role in the rearing of children. The celebration of a marriage gives
rise to moral and legal obligations, particularly the reciprocal duty of support placed
upon spouses and their joint responsibility for supporting and raising children
born of the marriage. These legal obligations perform an important social function.
This importance is symbolically acknowledged in part by the fact that marriage is
celebrated generally in a public ceremony, often before family and close friends....”
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25. South African Constitutional Court in various judgments recognized the above
mentioned principle. In Satchwell v. President of the Republic of South Africa and
Another 2002 (6) SA 1 (CC), Du Toil and Another v. Minister of Welfare and Population
Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003
(2) SA 198 (CC), the Constitutional Court of South Africa recognized the right “free
to marry and to raise family”. Section 15(3)(a)(i) of the Constitution of South Africa,
in substance makes provision for the recognition of “marriages concluded under
the tradition, or a system of religious, personal or family law.” Section 9(3) of the
Constitution of South Africa reads as follows:
‘’The State may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic
or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.”
26. Article 23 of the lntemational Covenant on Civil and Political Rights, 1966 (ICCPR)
provides that:
“1. The family is the natural and fundamental group unit of society and is entitled
to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a
family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the
intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure
equality of rights and responsibilities of spouses as to marriage, during
marriage and at its dissolution. In the case of dissolution, provision shall be
made for the necessary protection of any children.”
27. Article 16 of the Universal Declaration of Human Rights, 1948 provides that:
“1. Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to
equal rights as to marriage, during marriage and at it dissolution.
2. Marriage shall be entered into only with the free and full consent of the
intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled
to protection by society and the State.”
28. Parties in the present case are Hindus by religion and are governed by the Hindu
Marriage Act, 1955. The expression “marriage”, as stated, is not defined under the
Hindu Marriage Act, but the “conditions for a Hindu marriage” are dealt with in
Section 5 of the Hindu Marriage Act and which reads as under:
“5. Conditions for a Hindu marriage - A marriage may be solemnized between any
two hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness
of mind; or
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(b) though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage
and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty- one years and the bride the
age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the
two;
(v) the parties are not sapindas of each other, unless the custom or usage governing
each of them permits of a marriage between the two.”
29. Section 7 of the Hindu Marriage Act deals with the “Ceremonies for a Hindu marriage”
and reads as follows:
“7. Ceremonies for a Hindu marriage. -
(1) A Hindu marriage may be solemnized in accordance with the customary rites
and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.”
30. Entering into a marriage, therefore, either through the Hindu Marriage Act or the
Special Marriage Act or any other Personal Law, applicable to the parties, is entering
into a relationship of “public significance”, since marriage being a social institution,
many rights and liabilities flow out of that legal relationship. The concept of marriage
as a “civil right” has been recognised by various courts all over the world, for example,
Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold 198 P.2d 17,20.1 (1948),
Loving v. Virginia 388 US 1 (1967).
31. We have referred to, in extenso, about the concept of “marriage and marital
relationship” to indicate that the law has distinguished between married and
unmarried people, which cannot be said to be unfair when we look at the rights and
obligations which flow out of the legally wedded marriage. A married couple has to
discharge legally various rights and obligations, unlike the case of persons having
live-in relationship or, marriage-like relationship or defacto relationship.
32. Married couples who choose to marry are fully cognizant of the legal obligation
which arises by the operation of law on solemnization of the marriage and the rights
and duties they owe to their children and the family as a whole, unlike the case of
persons entering into live-in relationship. This Court in Pinakin Mahipatray Rawal v.
State of Gujarat (2013) 2 SCALE 198 held that marital relationship means the legally
protected marital interest of one spouse to another which include marital obligation
to another like companionship, living under the same roof, sexual relation and the
exclusive enjoyment of them, to have children, their up-bringing, services in the
home, support, affection, love, liking and so on.
RELATIONSHIP IN THE NATURE OF MARRIAGE:
33. Modem Indian society through the DV Act recognizes in reality, various other forms
of familial relations, shedding the idea that such relationship can only be through
some acceptable modes hitherto understood.
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Section 2(f), as already indicated, deals with a relationship between two persons (of
the opposite sex) who live or have lived together in a shared household when they
are related by:
a) Consanguinity
b) Marriage
c) Through a relationship in the nature of marriage
d) Adoption
e) Family members living together as joint family.
34. The definition clause mentions only five categories of relationships which exhausts
itself since the expression “means”, has been used. When a definition clause is defined
to “mean” such and such, the definition is prima facie restrictive and exhaustive.
Section 2(f) has not used the expression “include” so as to make the definition
exhaustive. It is in that context we have to examine the meaning of the expression
“relationship in the nature of marriage”.
35. We have already dealt with what is “marriage”, “marital relationship” and “marital
obligations”. Let us now examine the meaning and scope of the expression
“relationship in the nature of marriage” which falls within the definition of Section
2(f) of the DV Act. Our concern in this case is of the third enumerated category that is
“relationship in the nature of marriage” which means a relationship which has some
inherent or essential characteristics of a marriage though not a marriage legally
recognized, and, hence, a comparison of both will have to be resorted, to determine
whether the relationship in a given case constitutes the characteristics of a regular
marriage.
36. Distinction between the relationship in the nature of marriage and marital relationship
has to be noted first. Relationship of marriage continues, notwithstanding the
fact that there are differences of opinions, marital unrest etc., even if they are not
sharing a shared household, being based on law. But live-in-relationship is purely an
arrangement between the parties unlike, a legal marriage. Once a party to a live-in-
relationship determines that he/she does not wish to live in such a relationship, that
relationship comes to an end. Further, in a relationship in the nature of marriage,
the party asserting the existence of the relationship, at any stage or at any point of
time, must positively prove the existence of the identifying characteristics of that
relationship, since the legislature has used the expression “in the nature of’.
37. Reference to certain situations, in which the relationship between an aggrieved
person referred to in Section 2(a) and the respondent referred to in Section 2(q) of
the DV Act, would or would not amount to a relationship in the nature of marriage,
would be apposite. Following are some of the categories of cases which are only
illustrative:
a) Domestic relationship between an unmarried adult woman and an unmarried
adult male: Relationship between an unmarried adult woman and an
unmarried adult male who lived or, at any point of time lived together in a
shared household, will fall under the definition of Section 2(f) of the DV Act
and in case, there is any domestic violence, the same will fall under Section 3
of the DV Act and the aggrieved person can always seek reliefs provided under
Chapter IV of the DV Act.
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b) Domestic relationship between an unmarried woman and a married adult
male: Situations may arise when an unmarried adult women knowingly enters
into a relationship with a married adult male. The question is whether such a
relationship is a relationship “in the nature of marriage” so as to fall within the
definition of Section 2(f) of the DV Act.
c) Domestic relationship between a married adult woman and an unmarried adult
male: Situations may also arise where an adult married woman, knowingly
enters into a relationship with an unmarried adult male, the question is
whether such a relationship would fall within the expression relationship “in
the nature of marriage”.
d) Domestic relationship between an unmarried woman unknowingly enters into
a relationship with a married adult male: An unmarried woman unknowingly
enters into a relationship with a married adult male, may, in a given situation,
fall within the definition of Section 2(f) of the DV Act and such a relationship
may be a relationship in the “nature of marriage”, so far as the aggrieved person
is concerned.
e) Domestic relationship between same sex partners (Gay and Lesbians):
DV Act does not recognize 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
recognized the relationship between the same sex couples and have brought
these relationships into the definition of Domestic relationship.
38. Section 2(f) of the DV 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) 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.
39. We should, therefore, while determining whether any act, omission, commission or
conduct of the respondent constitutes “domestic violence”, have a common sense/
balanced approach, after weighing up the various factors which exist in a particular
relationship and then reach a conclusion as to whether a particular relationship is a
relationship in the “nature of marriage”. Many a times, it is the common intention of the
parties to that relationship as to what their relationship is to be, and to involve and as
to their respective roles and responsibilities, that primarily governs that relationship.
Intention may be expressed or implied and what is relevant is their intention as to
matters that are characteristic of a marriage. The expression “relationship in the
nature of marriage”, of course, cannot be construed in the abstract, we must take it in
the context in which it appears and apply the same bearing in mind the purpose and
object of the Act as well as the meaning of the expression “in the nature of marriage”.
Plight of a vulnerable section of women in that relationship needs attention. Many
a times, the women are taken advantage of and essential contribution of women
in a joint household through labour and emotional support have been lost sight of
especially by the women who fall in the categories mentioned in (a) and (d) supra.
Women, who fall under categories (b) and (c), stand on a different footing, which
159
we will deal with later. In the present case, the appellant falls under category (b),
referred to in paragraph 37(b) of the Judgment.
40. We have, therefore, come across various permutations and combinations, in such
relationships, and to test whether a particular relationship would fall within the
expression “relationship in the nature of marriage”, certain guiding principles have
to be evolved since the expression has not been defined in the Act.
41. Section 2(f) of the DV Act defines “domestic relationship” to mean, inter alia, a
relationship between two persons who live or have lived together at such point
of time in a shared household, through a relationship in the nature of marriage.
The expression “relationship in the nature of marriage” is also described as
defacto relationship, marriage -like relationship, cohabitation, couple relationship,
meretricious relationship (now known as committed intimate relationship) etc.
42. Courts and legislatures of various countries now began to think that denying certain
benefits to a certain class of persons on the basis of their marital status is unjust
where the need of those benefits is felt by both unmarried and married cohabitants.
Courts in various countries have extended certain benefits to heterosexual unmarried
cohabitants. Legislatures too, of late, through legislations started giving benefits to
heterosexual cohabitants.
43. In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple
have been recognized. Family Law Act, 1996, through the Chapter IV, titled ‘Family
Homes and Domestic Violence’, cohabitants can seek reliefs if there is domestic
violence. Canada has also enacted the Domestic Violence Intervention Act, 2001. In
USA, the violence against woman is a crime with far-reaching consequences under
the Violence Against Women Act, 1994.
44. The Interpretation Act, 1984 (Australia) has laid down certain indicators to
determine the meaning of “de facto relationship”, which are as follows:
“13A. De facto relationship and de facto partner, references to
(1) A reference in a written law to a de facto relationship shall be construed as a
reference to a relationship (other than a legal marriage) between 2 persons
who live together in a marriage-like relationship.
(2) The following factors are indicators of whether or not a de facto relationship
exists between 2 persons, but are not essential -
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any
arrangements for financial support, between them;
(f) the ownership, use and acquisition of their property (including property
they own individually);
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children;
(i) the reputation, and public aspects, of the relationship between them.
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xxxxxxxxx
xxxxxxxxx”
45. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined
the expression “couple relationship” to mean as follows”:
“18. Meaning of couple relationship
1) XXX XXX XXX
2) In deciding whether a couple relationship exists, a court may have regard to
the following-
a) the circumstances of the relationship between the persons, including, for
example-
(i) the degree of trust between the persons; and
(ii) the level of each person’s dependence on, and commitment to,
the other person;
b) the length of time for which the relationship has existed or did exist;
c) the frequency of contact between the persons;
d) the degree of intimacy between the persons.
3) Without limiting sub-section (2), the court may consider the following factors
in deciding whether a couple relationship exists-
a) Whether the trust, dependence or commitment is or was of the same
level;
b) Whether one of the persons is or was financially dependent on the other;
c) Whether the persons jointly own or owned any property;
d) Whether the persons have or had joint bank accounts;
e) Whether the relationship involves or involved a relationship of a sexual
nature;
f) Whether the relationship is or was exclusive.
4) A couple relationship may exist even if the court makes a negative finding in
relation to any or all of the factors mentioned in subsection (3).
5) A couple relationship may exist between two persons whether the persons are
of the same or a different gender.
6) A couple relationship does not exist merely because two persons date or dated
each other on a number of occasions.”
46. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides
for some guidelines with regard to the meaning and content of the expression “de
facto relationship”, which reads as follows:
“4 De facto relationships
(1) For the purposes of this Act, a de facto relationship is a relationship between
two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.
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(2) In determining whether two persons are in a de facto relationship, all the
circumstances of the relationship are to be taken into account, including such
of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any
arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life, (g) the care and
support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-
(i), or in respect of any combination of them, is to be regarded as necessary
for the existence of a de facto relationship, and a court determining whether
such a relationship exists is entitled to have regard to such matters, and to
attach such weight to any matter, as may seem appropriate to the court in the
circumstances of the case.
(4) Except as provided by section 6, a reference in this Act to a party to a de facto
relationship includes a reference to a person who, whether before or after the
commencement of this subsection, was a party to such a relationship.”
47. “In Re Marriage of Lindsay, 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d
550 (1976), Pennington 93 Wash.App. at 917, the Courts in United States took
the view that the relevant factors establishing a meretricious relationship include
continuous cohabitation, duration of the relationship, purpose of the relationship,
and the pooling of resources and services for joint projects. The Courts also ruled
that a relationship need not be “long term” to be characterized as meretricious
relationship. While a long term relationship is not a threshold requirement, duration
is a significant factor. Further, the Court also noticed that a short term relationship
may be characterized as a meretricious, but a number of other important factors
must be present.
48. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:
“Cohabitation comes in many different shapes and sizes. People embarking on
their first serious relationship more commonly cohabit than marry. Many of these
relationships may be quite short-lived and childless. But most people these days
cohabit before marriage..... So many couples are cohabiting with a view to marriage
at some later date - as long ago as 1998 the British Household Panel Survey found
that 75% of current cohabitants expected to marry, although only a third had firm
plans: John Ermisch, Personal Relationships and Marriage Expectations (2000)
Working Papers of the Institute of Social and Economic Research: Paper 2000-
27. Cohabitation is much more likely to end in separation than is marriage, and
cohabitations which end in separation tend to last for a shorter time than marriages
which end in divorce. But increasing numbers of couples cohabit for long periods
without marrying and their reasons for doing so vary from conscious rejection of
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marriage as a legal institution to regarding themselves ‘as good as married’ anyway:
Law Commission, Consultation Paper No 179, Part 2, para 2.45.”
49. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made
the following observations:
“Finn J was correct to stress the difference between living together and living together
‘as a couple in a relationship in the nature of marriage or civil union’. The relationship
between two people who live together, even though it is a sexual relationship, may, or
may not, be a relationship in the nature of marriage or civil union. One consequence
of relationships of the former kind becoming commonplace is that it may now be
more difficult, rather than easier, to infer that they have the nature of marriage or
civil union, at least where the care and upbringing of children are not involved.”
50. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court
considered whether a man and a woman living together ‘as husband and wife on a
bona fide domestic basis’ and Fitzgerald, J. said:
“Each element of a relationship draws its colour and its significance from the other
elements, some of which may point in one direction and some in the other. What
must be looked at is the composite picture. Any attempt to isolate individual factors
and to attribute to them relative degrees of materiality or importance involves a
denial of common experience and will almost inevitably be productive of error. The
endless scope for differences in human attitudes and activities means that there will
be an almost infinite variety of combinations of circumstances which may fall for
consideration. In any particular case, it will be a question of fact and degree, a jury
question, whether a relationship between two unrelated persons of the opposite sex
meets the statutory test.”
51. Tipping, J. in Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC),
listed few characteristics which are relevant to determine relationship in the nature
of marriage as follows:
“(1) Whether and how frequently the parties live in the same house.
(2) Whether the parties have a sexual relationship.
(3) Whether the parties give each other emotional support and companionship.
(4) Whether the parties socialize together or attend activities together as a couple.
(5) Whether and to what extent the parties share the responsibility for bringing
up and supporting any relevant children.
(6) Whether the parties share household and other domestic tasks.
(7) Whether the parties share costs and other financial responsibilities by the
pooling of resources or otherwise.
(8) Whether the parties run a common household, even if one or other partner is
absent for periods of time.
(9) Whether the parties go on holiday together.
(10) Whether the parties conduct themselves towards, and are treated by friends,
relations and others as if they were a married couple.”
52. Live-in relationship, as such, as already indicated, is a relationship which has not
been socially accepted in India, unlike many other countries. In Lata Singh v. State
of U.P. [AIR 2006 sc 2527J it was observed that a live-in relationship between two
163
consenting adults of heterosexual sex does not amount to any offence even though
it may be perceived as immoral. However, in order to provide a remedy in Civil Law
for protection of women, from being victims of such relationship, and to prevent
the occurrence of domestic violence in the society, first time in India, the DV Act
has been enacted to cover the couple having relationship in the nature of marriage,
persons related by consanguinity, marriages etc.
We have few other legislations also where reliefs have been provided to woman
placed in certain vulnerable situations.
53. Section 125 Cr.P.C., of course, provides for maintenance of a destitute wife and
Section 498A IPC is related to mental cruelty inflicted on women by her husband
and in-laws. Section 304-B IPC deals with the cases relating to dowry death. The
Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands
by the husband and family members.
The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance
to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu
Marriage Act, 1955 refers to the provisions dealing with solemnization of marriage
also deals with the provisions for divorce.
For the first time, through, the DV Act, the Parliament has recognized a •relationship
in the nature of marriage” and not a live-in relationship simplicitor.
54. We have already stated, when we examine whether a relationship will fall within the
expression nrelationship in the nature of marriageu within the meaning of Section
2(f) of the DV Act, we should have a close analysis of the entire relationship, in other
words, all facets of the interpersonal relationship need to be taken into account. We
cannot isolate individual factors, because there may be endless scope for differences
in human attitudes and activities and a variety of combinations of circumstances
which may fall for consideration. Invariably, it may be a question of fact and degree,
whether a relationship between two unrelated persons of the opposite sex meets
the tests judicially evolved.
55. We may, on the basis of above discussion cull out some guidelines for testing under
what circumstances, a live-in relationship will fall within the expression nrelationship
in the nature of marriage under Section 2(f) of the DV Act. The guidelines, of course,
are not exhaustive, but will definitely give some insight to such relationships.
1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression Mat any point of time”, which
means a reasonable period of time to maintain and continue a relationship
which may vary from case to case, depending upon the fact situation.
2) Shared household
The expression has been defined under Section 2(s) of the DV Act and, hence,
need no further elaboration.
3) Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts,
acquiring immovable properties in joint names or in the name of the woman,
long term investments in business, shares in separate and joint names, so as to
have a long standing relationship, may be a guiding factor.
4) Domestic Arrangements
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Entrusting the responsibility, especially on the woman to run the home, do
the household activities like cleaning, cooking, maintaining or upkeeping the
house, etc. is an indication of a relationship in the nature of marriage.
5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure,
but for emotional and intimate relationship, for procreation of children, so as
to give emotional support, companionship and also material affection, caring
etc.
6) Children
Having children is a strong indication of a relationship in the nature of marriage.
Parties, therefore, intend to have a long standing relationship. Sharing the
responsibility for bringing up and supporting them is also a strong indication.
7) Socialization in Public
Holding out to the public and socializing with friends, relations and others, as
if they are husband and wife is a strong circumstance to hold the relationship
is in the nature of marriage.
8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to involve,
and as to their respective roles and responsibilities, primarily determines the
nature of that relationship.
STATUS OF THE APPELLANT
56. Appellant, admittedly, entered into a live-in-relationship with the respondent
knowing that he was married person, with wife and two children, hence, the
generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v.
Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185, that where a man and
a woman are proved to have lived together as husband and wife, the law presumes
that they are living together in consequence of a valid marriage will not apply
and, hence, the relationship between the appellant and the respondent was not a
relationship in the nature of a marriage, and the status of the appellant was that of
a concubine. A concubine cannot maintain a relationship in the nature of marriage
because such a relationship will not have exclusivity and will not be monogamous
in character. Reference may also be made to the judgments of this Court in Badri
Prasad v. Director of Consolidation 1978 C3lSCC 527 and Tulsa v. Durghatiya 2008
(4lSCC 520. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231 this Court held that
the continuous cohabitation of man and woman as husband and wife may raise
the presumption of marriage, but the presumption which may be drawn from
long cohabition is a rebuttable one and if there are circumstances which weaken
and destroy that presumption, the Court cannot ignore them. Polygamy, that is a
relationship or practice of having more than one wife or husband at the same time,
or a relationship by way of a bigamous marriage that is marrying someone while
already married to another and/or maintaining an adulterous relationship that is
having cannot be said to be a relationship in the nature of marriage.
57. We may note, in the instant case, there is no necessity to rebut the presumption,
since the appellant was aware that the respondent was a married person even
before the commencement of their relationship, hence the status of the appellant is
165
that of a concubine or a mistress, who cannot enter into relationship in the nature of
a marriage. Long standing relationship as a concubine, though not a relationship in
the nature of a marriage, of course, may at times, deserves protection because that
woman might not be financially independent, but we are afraid that DV Act does
not take care of such relationships which may perhaps call for an amendment of the
definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.
58. Velusamy case (supra) stated that instances are many where married person
maintain and support such types of women, either for sexual pleasure or sometimes
for emotional support. Woman, a party to that relationship does suffer social
disadvantages and prejudices, and historically, such a person has been regarded as
less worthy than the married woman. Concubine suffers social ostracism through
the denial of status and benefits, who cannot, of course, enter into a relationship in
the nature of marriage.
59. We cannot, however, lose sight of the fact that inequities do exist in such relationships
and on breaking down such relationship, the woman invariably is the sufferer. Law
of Constructive Trust developed as a means of recognizing the contributions, both
pecuniary and non-pecuniary, perhaps comes to their aid in such situations, which
may remain as a recourse for such a woman who find herself unfairly disadvantaged.
Unfortunately, there is no express statutory provision to regulate such types of live-
in relationships upon termination or disruption since those relationships are not
in the nature of marriage. We can also come across situations where the parties
entering into live-in-relationship and due to their joint efforts or otherwise acquiring
properties, rearing children, etc. and disputes may also arise when one of the parties
dies intestate.
60. American Jurisprudence, Second Edition, Vol. 24 (2008) speaks of Rights and
Remedies of property accumulated by man and woman living together in illicit
relations or under void marriage, which reads as under:
“Although the courts have recognized the property rights of persons cohabiting
without benefit of marriage, these rights are not based on the equitable distribution
provisions of the marriage and divorce laws because the judicial recognition of
mutual property rights between unmarried cohabitants would violate the policy of
the state to strengthen and preserve the integrity of marriage, as demonstrated by
its abolition of common-law marriage.”
61. Such relationship, it may be noted, may endure for a long time and can result pattern
of dependency and vulnerability, and increasing number of such relationships, calls
for adequate and effective protection, especially to the woman and children born out
of that livein-relationship. Legislature, of course, cannot promote pre-marital sex,
though, at times, such relationships are intensively personal and people may express
their opinion, for and against. SeeS. Khushboo v. Kanniammal and another (2010) 5
SCC 600.
62. Parliament has to ponder over these issues, bring in proper legislation or make a
proper amendment of the Act, so that women and the children, born out of such
kinds of relationships be protected, though those types of relationship might not be
a relationship in the nature of a marriage.
63. We may now consider whether the tests, we have laid down, have been satisfied in
the instant case. We have found that the appellant was not ignorant of the fact that
166
the respondent was a married person with wife and two children, hence, was party
to an adulterous and bigamous relationship. Admittedly, the relationship between
the appellant and respondent was opposed by the wife of the respondent, so also by
the parents of the appellant and her brother and sister and they knew that they could
not have entered into a legal marriage or maintained a relationship in the nature
of marriage. Parties never entertained any intention to rear children and on three
occasions the pregnancy was terminated. Having children is a strong circumstance
to indicate a relationship in the nature of marriage. No evidence has been adduced
to show that the parties gave each other mutual support and companionship.
No material has been produced to show that the parties have ever projected or
conducted themselves as husband and wife and treated by friends, relatives and
others, as if they are a married couple. On the other hand, it is the specific case of the
appellant that the respondent had never held out to the public that she was his wife.
No evidence of socialization in public has been produced. There is nothing to show
that there was pooling of resources or financial arrangements between them. On
the other hand, it is the specific case of the appellant that the respondent had never
opened any joint account or executed any document in the joint name. Further, it
was also submitted that the respondent never permitted to suffix his name after
the name of the appellant. No evidence is forthcoming, in this case, to show that the
respondent had caused any harm or injuries or endangered the health, safely, life,
limb or well-being, or caused any physical or sexual abuse on the appellant, except
that he did not maintain her or continued with the relationship.
ALIENATION OF AFFECTION
64. Appellant had entered into this relationship knowing well that the respondent was
a married person and encouraged bigamous relationship. By entering into such a
relationship, the appellant has committed an intentional tort, i.e. interference in the
marital relationship with intentionally alienating respondent from his family, i.e.
his wife and children. If the case set up by the appellant is accepted, we have to
conclude that there has been an attempt on the part of the appellant to alienate
respondent from his family, resulting in loss of marital relationship, companionship,
assistance, loss of consortium etc., so far as the legally wedded wife and children
of the respondent are concerned, who resisted the relationship from the very
inception. Marriage and family are social institutions of vital importance. Alienation
of affection, in that context, is an intentional tort, as held by this Court in Pinakin
Mahipatray Rawal case (supra), which gives a cause of action to the wife and children
of the respondent to sue the appellant for alienating the husband/father from the
company of his wife/children, knowing fully well they are legally wedded wife/
children of the respondent..
65. We are, therefore, of the view that the appellant, having been fully aware of the fact
that the respondent was a married person, could not have entered into a live-in
relationship in the nature of marriage. All live-in-relationships are not relationships
in the nature of marriage. Appellant’s and the respondent’s relationship is, therefore,
not a “relationship in the nature of marriage” because it has no inherent or essential
characteristic of a marriage, but a relationship other than “in the nature of marriage”
and the appellant’s status is lower than the status of a wife and that relationship
would not fall within the definition of “domestic relationship” under Section 2(f) of
the DV Act. If we hold that the relationship between the appellant and the respondent
is a relationship in the nature of a marriage, we will be doing an injustice to the
167
legally wedded wife and children who opposed that relationship. Consequently, any
act, omission or commission or conduct of the respondent in connection with that
type of relationship, would not amount to “domestic violence” under Section 3 of the
DV Act.
66. We have, on facts, found that the appellant’s status was that of a mistress, who is in
distress, a survivor of a live-in relationship which is of serious concern, especially
when such persons are poor and illiterate, in the event of which vulnerability is
more pronounced, which is a societal reality. Children born out of such relationship
also suffer most which calls for bringing in remedial measures by the Parliament,
through proper legislation.
67. We are conscious of the fact that if any direction is given to the respondent to pay
maintenance or monetary consideration to the appellant, that would be at the cost
of the legally wedded wife and children of the respondent, especially when they
had opposed that relationship and have a cause of action against the appellant for
alienating the companionship and affection of the husband/parent which is an
intentional tort.
68. We, therefore, find no reason to interfere with the judgment of the High Court and
the appeal is accordingly dismissed.
qqq
168
RFA (OS).No. 24 of 2012, C.M. Appl. Nos. 4236 of 2012, 4237 of 2012 & 5451 of 2013 [2014] 0
Supreme(Del) 37773/ [2014] 207 DLT 78
High Court of Delhi
THE HONOURABLE MR. JUSTICES. RAVINDRA BHAT &

THE HONOURABLE MR. JUSTICE NAJMIWAZIRI
Mrs. Preeti Satija

Versus
Mrs. Raj Kumari & Another
Decided On: 15-01-2014
CIVIL PROCEDURE CODE : 0.12 R.61 CRIMINAL PROCEDURE CODE : 8.1251 DOMESTIC
VIOLENCE ACT : 8.12, 8.12(1), 8.17, 8.18, 8.19, S.2(q)l INDIAN PENAL CODE: 8.406,
S. 498(a)
Cases Referrred:
Eveneet Singh v. Prashant Chaudhari, 177(2011) DLT 124
Neetu Mittal v. Kanta Mittal, (2008) DLT 691
Gilbert v. Smith, 1875-76 (2) Ch 686,
Western Coalfields Ltd. v. M/s Swati lndustires, AIR 2003 Born 369
Uttam Singh Duggal & Co. v. United Bank of India & Ors 2000 (7) SCC 120
Jeevan Diesel & Electricals Limited v. Jasbir Singh Chadha & Another, (2010) 6 SCC 601
Shumita Didi Sandhu v.Sanjay Singh Sandhu, 2007 (96) DRJ 697
S.R. Batra &Anrv.Smt. Taruna Batra, (2007) 3 SCC169
Judgment:
S. Ravindra Bhat, J.
1. The defendant appeals the judgment and order of a learned Single Judge, who decreed
the suit preferred by the respondent- plaintiff, her mother in law, on admission, by
invoking Order XII Rule 6, Code of Civil Procedure (CPC). The plaintiff had sought a
decree for possession/eviction of the defendanUdaughter-in-law.
2. The plaintiff had filed the suit for possession, permanent injunction and mesne
profits against the defendants, her son and mother in-law, in respect of a portion
of property bearing No.2245, Hudson Lane, GTB Nagar, Kingsway Camp, Delhi -
110 009 (hereafter referred to as Mthe suit property”). The first defendant is the
plaintiff’s daughter-in-law and wife of her disowned son. The son was also arrayed
as the second defendant. The suit property belonged to the plaintiff’s husband (Shri
Tek Chand), who he died on 30.06.2008 leaving behind a registered Will dated
20.11.2006 by which he bequeathed the suit property to her. The plaintiff alleged
that after her husband’s death, she became the sole and absolute owner of that
property. The plaintiff claimed that the back portion of the suit property consisting
of one bedroom, a bathroom and a small kitchen is in occupation of the defendants.
She alleged that since the relationship between her and the defendants became
estranged, she wanted them to vacate the property. During the pendency of the
suit, the plaintiff filed an application alleging her entitlement to a decree on alleged
admission.
3. The appellant’s position in her reply to the application for decree on admission was
169
that the plaintiff was not the absolute owner of the suit property as the Will had
not been granted probate and was as yet untested in law and that without it being
probated, the Will cannot come into force.
4. The leamed Single Judge was of the opinion that since the defendant/appellant had
not disputed the due execution of the Will, and had merely contested that it had
no legal effect because it had not been probated, there was in effect an admission.
Further, he concluded that it is inessential to seek a probate, and thus, the Will,
being admitted, remains operative between the parties. The impugned order also
mentioned the two notices issued on behalf of the plaintiff to the defendants and her
allegation that they were harassing her and continuing to live in the suit premises.
The Court also noticed that the appellant had filed a suit, before the Civil Judge, North
West, Rohini Courts, Delhi (Suit No.16/2010) which is still pending. Importantly, the
Single Judge was also aware of the fact that the appellant had relied on provisions of
the Protection of Women from Domestic Violence Act, 2005 (hereafter “2005 Act”).
5. In the impugned judgment, the leamed Single Judge rejected the arguments of the
appellant with respect to applicability of the provisions of the 2005 Act. It was held
that the suit property could not be considered to be Mshared household”. In view of
this conclusion, the Single Judge decreed the suit in part, holding that the defendant
was liable to be evicted.
6. The appellant argued that the leamed Single Judge failed to consider that there was
no unambiguous admission of the kind that warranted exercise of discretion under
Order 12, Rule 6. In this regard, it was contended that the written statement had
alleged collusion between the plaintiff and her son, the second defendant; it had not
admitted due execution of the Will and stated that such circumstances would have
to be tested in probate proceedings. In these circumstances, the court should have
not exercised its discretion in granting a decree on admission. It was further argued
that the Single Judge fell into error in relying on the decision of the Supreme Court in
S.R. Batra &Anr v. Smt. Taruna Batra, (2007) 3 SCC169 and the ruling of this Court in
Shumita Didl Sandhu v. Sanjay Singh Sandhu, 2007 (96) DRJ 697. It was contended
that those decisions overlooked the crucial definition of “shared household and that
the respondent, was an expression not limited to male relatives of the applicant,
but also female relatives, by virtue of proviso to Section 2 (q) and Section 19 (1)
(f). It was argued that in the present case the husband had not been served and
had not entered appearance; there were matrimonial disputes between him and the
first defendant, i.e. the appellant. Counsel urged that the plaintiff and the second
defendant colluded; the son disappeared. At the same time, the plaintiff Mdisownedu
him after the matrimonial disputes started, and proceeded to file the suit. Counsel
emphasized that it was precisely to overcome these strategies and devices that
“shared household” was defined widely, and the wife, under the 2005 Act, was given
the right to reside in such premises, by virtue of Section 17. It was also pointed out
that by virtue of Section 26, the provisions of the 2005 Act could be invoked before
any court in any stage of the proceeding. It was argued that the appellant is in a
pitiable plight, because she has to maintain two school going children, who have
been left untended and uncared by her husband and the orders of maintenance
granted in her favour by the concerned magistrate have not been implemented. It
was also pointed out that the wife has initiated criminal proceedings alleging that
the husband had committed offences punishable under Sections 406 and 498-A of
the Indian Penal Code (IPC).
170
7. Counsel for the plaintiff justified the impugned order. He argued that the appellant
had made an unambiguous admission entitling the plaintiff to a decree under Order
12 Rule 6. Counsel submitted that the decisions in Shumita Didi Sandhu and S.R.
Batra were conclusive as to the limits of the right to residence of the wife in a shared
household. Here, the suit premises belonged to the plaintiff and the appellant could
not claim the right to reside in it, since her husband had no right - ownership or
otherwise in respect of those premises.
8. The first question which this court has to consider is whether there were admissions
in the pleadings of the type to enable the court to draw a decree for possession on
admission. The suit records were called for and have been gone into by this Court. In
the written statement, the appellant had claimed that the suit was not maintainable
because the suit premises were her matrimonial home where she was entitled to
reside. At more than one place, (especially in reply to the plea that the plaintiff is
“absolute owner’’ of the property), the appellant unequivocally denied the plaintiff’s
title and stated that she was put to strict proof of the claim of sole ownership. In respect
of the allegation that the ownership was on account of testamentary devolution by
virtue of late Tek Chand’s registered Will, the appellant denied them, stating that
such was not the case Mas per her knowledge”. Since she had no knowledge and
the plaintiff was put to strict proof, the appellant went on to state that this could be
done by obtaining probate - a course which had not as yet been resorted to. The gist
of these averments, therefore, was that the appellant denied the plaintiff’s title. She
did not admit the Will, and the clear admission that the written statement contained
was as to the relationship of the parties.
9. The question here is whether the pleadings taken as a whole point to an unambiguous
and clear admission contemplated by law. The standard spelt out in Uttam Singh
Duggal & Co. v. United Bank of India & Ors 2000 (7) SCC 120 and Jeevan Diesel &
Electricals Limited v. Jasbir Singh Chadha & Another, C2010l 6 SCC 601 that the Courts
have to adopt, while considering pleadings and considering if a decree on admission
is to be drawn, is whether there is a “clear and unequivocal admission of the case”
(of the plaintiff, by the party defending the application). It is also not in dispute that
there is no golden rule about what constitute as Mclear and unequivocal admission”.
The Court has to proceed on a case fact dependent approach having due regard to
the overall effect of the pleadings and documents. This is clear from the decision in
Gilbert v. Smith, 1875-76 (2) Ch 686, which was relied upon by the Supreme Court in
Jeevan Diesel (supra). The question was amplified in Western Coalfields Ltd. v. M/s
Swati lndustires, AIR 2003 Born 369. In Jeevan Diesel (supra), it was held that:
“whether or not there is a clear, unambiguous admission by one party of the case
of the other party is essentially a question of fact and the decision on this question
depends on the facts of the case. This question, namely whether there is a clear
admission or not cannot be decided on the basis of a judicial precedent.”
10. Courts cannot therefore base their decision to decree (or not to grant a decree) in
a suit in terms of Order XII Rule 6 CPC only on the basis of a particular pleading or
admission. Rather, the overall effect of the pleadings and documents of the concerned
parties are to be weighed. The Court has to be mindful that what seems plainly an
admission could well be explained by the litigant making it, during the course of
the trial. Moreover, the controlling expression under Order 12 Rule 6 is that Court
“may” grant a decree on admissions. It is important to analyze this aspect because
171
admissions either in the pleadings or in a document or in the course of a statement
cannot be viewed in isolation.
11. In this case, the appellant’s consistent stand in the written statement as well as in
the reply to the application under Order 12 Rule 6 CPC was of denial of the plaintiff’s
claim of absolute ownership. This denial was unequivocal. The appellant also
claimed that the plaintiff and her husband had colluded and the suit was a step to
achieve the object of that collusion. She relies on the copies of the complaint, criminal
proceedings and the orders made towards her maintenance, in support of those
submissions. That she added that the plaintiff ought to obtain probate, is a matter
of detail, in the written statement, which - with respect to the learned Single judge
- was plucked out from the pleadings. Whether a will is probated or not, it requires
to be proved, once the ownership of the property is disputed and the claim to such
title is solely based on a will. This aspect gains importance because in the event of
a trial it would have been necessary for the plaintiff to prove due execution of the
will, in tune with provisions of the Indian Succession Act and the Evidence Act. That
part of the written statement and reply to the plaintiff’s application dealing with
the plaintiff’s obligation to obtain probate, should not, in our view with respect to
the impugned judgment, have been the exclusive basis for holding that the plaintiff
was entitled to a decree on admissions. The impugned judgment in effect assumes
plaintiff’s title to the suit premises on the basis of due execution of the Will, which
was not proved. This court, therefore, is of opinion that the appellant’s pleadings
cannot be considered as unequivocal or unqualified, and admissions, necessitating a
decree on admissions.
12. The next question is whether the learned single judge was right in holding that the
provisions of the 2005 Act did not aid the appellant and that she could not claim the
suit premises to be “shared household”.
13. The question has to be examined in view of provisions of the 2005 Act. Section 2(a)
of the Act states:
“2(a) “aggrieved person” means any woman 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;”
Section 2(f) states that:
“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
adoption or are family members living together as a joint family;”
Section 2(s) defines shared household as follows:
“2(s) “ shared household” means a household where the person aggrieved lives
shared household”
172
Section 2 (q) defines who is a respondent: “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”
Section 3(a) states that an act will constitute domestic violence in case it
“harms or injures or endangers the health, safety, life, limb or well-being, whether
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;” or
(emphasis supplied)
The expression “economic abuse” has been defined to include:
“(a) deprivation of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an order of a court
or otherwise or which the aggrieved person requires out of necessity including, but
not limited to, household necessities for the aggrieved person and her children, if any,
stridhan, property, jointly or separately owned by the aggrieved person, payment of
rental related to the shared household and maintenance.”
An aggrieved person under the Act can approach the Magistrate under Section 12 for
the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate
can grant maintenance while disposing of the application under Section 12(1).
Section 26(1) provides that the relief mentioned in Section 20 may also be sought in
any legal proceeding, before a civil court, family court or a criminal court.
14. There are some decisions which have preferred the view that since the ruling in S.R.
Batra held that when the premises are not owned by the husband, the applicant/wife
cannot claim it to be a shared household (for example, Neetu Mittal v. Kanta Mittal,
(2008) DLT 691, which held that self-acquired property of the husband’s parents are
not shared household).
15. These decisions, with respect, proceeded on an erroneous understanding of the
statute. For this, it would be useful to recollect the decision in Eveneet Singh v.
Prashant Chaudhari, 177(2011) DLT 124 where it was held that:
“11. The key to an understanding of the rights flowing from the Domestic Violence
Act, are concepts such as “domestic relationship’- which inter alia, is Ra 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...”; who is a “
Respondent’’- a term not confined only to males who had lived with the aggrieved
person, i.e. the complainant female, but alsoby virtue of proviso to Section 2(q) to
Ra relative of the husband...” (in the case where the domestic relationship is or was
a marriage). This aspect has been noticed, and clarified in several rulings by various
High Courts (Ref Afzalunnisa Begum v. The State of A.P., 2009 Cri. L.J. 4191; Archana
Hemant Naik v. Urmilaben Naik, 2010 Cri.L.J. 751 and Varsha Kapoor v. Union of
India, WP (Crl.) No. 638 of 2010, Decided on: 03.06.2010, by a Division Bench of this
High Court). It has been held that when a law uses the same word in different parts
of the same statute, there is a presumption that that it is used in the same sense
throughout (Suresh Chand v. Gulam Chisti, : (1990) 1 SCC 593), unless the context
indicates otherwise (Bhogilal Chunnilal Pandya v. State of Bombay, 1959 Supp (1)
SCC 593). Now, the relevant part of Section 19 reads as follows:
“19. Residence orders.-(1) While disposing of an application under Sub-section (1)
of Section 12, the Magistrate may, on being satisfied that domestic violence has taken
173
place, pass a residence order - (a) restraining the Respondent from dispossessing or
in any other manner disturbing the possession of the aggrieved person from the
shared household, whether or not the Respondent has a legal or equitable interest
in the shared household....” (Emphasis supplied)
The broad and expansive nature of the Court’s power to make a residence order is
also underlined by the amplitude of the definition of “shared householdR, which is
‘’where the person aggrieved lives or at any stage has lived-
(i) in a domestic relationship
(ii) either singly or along with the Respondent and includes such a household
(a) whether owned or tenanted either jointly by the aggrieved person and
the Respondent, or
(b) owned or tenanted by either of them
(iii) 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
(iv) such a household which may belong to the joint family of which the Respondent
is a member, irrespective of whether the Respondent or the aggrieved person
has any right, title or interest in the shared household.
It is thus apparent that Parliamentary intention was to secure the rights of
aggrieved persons in the shared household, which could be tenanted by the
Respondent (including relative of the husband) or in respect of which the
Respondent had jointly or singly any right, title, interest, or “equity”. For
instance, a widow living with a mother-in-law, in premises owned by the latter,
falls within a “domestic relationship”; even if the mother-in-law does not
have any right, title or interest, but is a tenant, or entitled to “equity’’ in those
premises, the same would be a “shared household”. In such circumstances,
the widowed daughter-in-law, can well claim protection from dispossession,
notwithstanding that her husband never had any ownership rights, in the
premises, because she lived in it; if the mother-in-law, is a tenant, then, on
the ground that she is tenant, or someone having equity. It may, however, be
noticed here that Section 19, while referring to a “ Respondent”, lays down a
limited exception under the proviso to 19(1)(b), exempting women from being
directed to remove themselves from the shared household. However, no such
exception has been carved out for the other reliefs under Section 19, especially
in respect of protection orders. Clearly, if the legislature had wanted to create
another exception in favor of women, it could have done so. The omission
here, seems deliberate and in consonance with the rest of the scheme of the
Act. Another instance of a domestic relationship may be an orphaned sister,
or widowed mother, living in her brother’s or son’s house; it falls within
the definition of domestic relationship, (which is one where the parties are
related by consanguinity, or marriage) constitutes a shared household, as the
brother is clearly a Respondent. In such a case too, if the widowed mother or
sister is threatened with dispossession, they can secure reliefs under the Act,
notwithstanding exclusive ownership of the property, by the son or brother.
Thus, excluding the right of residence against properties where the husband
has no right, share, interest or title, would severely curtail the extent of the
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usefulness of the right to residence. This was noted by the Bombay High Court
in Archana Heman!Naik (supra) in the following terms:
“If a wife or a woman to whom the proviso is applicable is compelled to seek
residence order in respect of a shared household only as against the male
relatives of her husband or male partner, as the case may be, the order under
Section19 of the said Act will be completely ineffective in as much as the female
relatives of the husband or the male partner occupying the shared household
will continue to disturlb possession of such wife or such female of the shared
household, or may continue to prevent entry of such aggrieved wife or female to
the shared household.” (Emphasis supplied)
12. The Domestic Violence Act is a secular legislation, akin to Section 125 of the Code
of Criminal Procedure, 1973. It was enacted “to provide more effective protection of
the rights of women guaranteed under the Constitution who are victims of violence
of any kind occurring within the family”. The introduction of the remedy of right
to residence is a revolutionary and path breaking step, taken to further the objects
of the Act, and any attempt at restricting the scope of the remedy would reduce
the effectiveness of the Act itself. Therefore, it would be contrary to the scheme
and the objects of the Act to restrict its application to only such cases where the
husband owns some property or has a share in it, as the mother-in-law can also be
a Respondent in the proceedings under the Domestic Violence Act and remedies
available under the same Act would necessarily need to be enforced against her.
13. Again, to confine the reference to “joint” family property by bringing in the concept
of a HUF would be to restrict the application of the provision, to a point which is
contrary to Parliamentary intention that the law is a non-sectarian one. The “joint”
status of a family here obviously is in a generic sense, and importing notions of HUF
would unwittingly give greater benefits to one section of the community, which was
never the intention of Parliament. In a generic sense, it refers to a group of people,
related either by blood or marriage, residing in the same house and instances of
that can be found in almost all parts of India. The general practice in India is that the
son and his wife reside in the house of the (husband’s) parents after marriage. Even
though a legal obligation to maintain a child ceases as soon as he attains majority,
the jural relationship between the parents and the child continues. The concept of a
“joint family” in law is peculiar to Hindu law. No concept of a “joint family’ similar to
that of an HUF can be found in Muslim Law, Christian Law or any other personal law.
14. The danger of accepting a restricted interpretation of joint family by equating it to a HUF
would result in discrimination, because women living in a shared household belonging
to HU Fs (and therefore Hindus) would have more security, by reason of their professing
the Hindu faith than others who are not Hindus. Also, even among Hindus, women who
are married into or live in HUFs, as compared with those living with husbands, whose
parents own the property - on an application of Batra -would have the protection of
the Act; the latter would not have any protection. It is precisely to avoid this anomaly
that Parliament clarified that irrespective of title of the “Respondenf’ to the “shared
household”, a protection order can be made under Section 19(1)(a).
15. The definition of “shared household” emphasizes the factum of a domestic relationship
and no investigation into the ownership of the said household is necessary, as per the
definition. Even if an inquiry is made into the aspect of ownership of the household,
the definition casts a wide enough net. It is couched in inclusive terms and is not in
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any way, exhaustive (S. Prabhakaran v. State of Kerala, 2009 (2) RCR 883. It states
that “...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
may belong to the joint family of which the Respondent is a member, irrespective of
whether the Respondent or the aggrieved person has any right, title or interest in
the shared household (Emphasis supplied).
16. It would not be out of place to notice here that the use of the term “Respondent” is
unqualified in the definition nor is there any qualification to it under Sections 12, 17
or 19. Therefore, there is no reason to conclude that the definition does not extend
to a house which is owned by a mother-in-law or any other female relative, since
they are encompassed under the definition of “Respondent” under Section 2(q).”
(emphasis supplied)
16. The above decision of a single judge was approved by the Division Bench in Eveneet
Singh v. Prashant Chaudhari (DB, FAO (OS) 71-72/2011, decided on 08.11.2011)
“12. Thus, at best it can be urged that while deciding an issue pertaining to a wife’s
claim for residence in the shared household the discussion must start with a
presumption in favour of the wife that law leans in her favour to continue to reside in
the shared household and only upon adequate circumstances being manifestly and
objectively disclosed by the opposite party, could an order contemplated by clause
(f) of sub-section 1 of Section 10 of the Act be passed.
13. In the instant case the circumstance to take recourse to clause (f) of sub-section
1 of Section 19 of the Act would be the extreme ill health of the mother-in-law of the
appellant; medical documents pertaining to whom would show that she suffers from
‘tachycardia’ with heart muscles functioning at about 20%. The constant strife with
the newly married daughterin-law in her house would certainly have an adverse
effect on the mother-in-law. Besides, the husband of the appellant is currently in
Hyderabad and not at Delhi.
14. It is apparent that clause (f) of sub-section 1 of Section 19 of the Act is intended
to strike a balance between the rights of a daughter-in-law and her in-laws, if a claim
to a shared residence by the daughter-in-law pertains to a building in which the
matrimonial home was set up belongs to her mother-in-law or father-in-law.”
17. In an earlier decision, Varsha Kapoor v. UOI & Ors. 2010 VI AD (Delhi) 472 another
Division Bench interpreted Section 2(q) of the Act also concluded that “respondent”
can include female relatives of the husband. The Division Bench held as under:
“15. Having regard to the purpose which the DV Act seeks to achieve and when we
read Section 2(q) along with other prov1s1ons, out task is quite simple, which may
in first blush appear to be somewhat tricky. We are of the considered view that the
manner in which definition of “respondent” is given under Section 2(q) of DV Act, it
has to be segregated into two independent and mutually exclusive parts, not treating
proviso as adjunct to the main provision. These two parts are:
a) Main enacting part which deals with those aggrieved persons, who are “in a
domestic relationship”. Thus, in those cases where aggrieved person is in a
domestic relationship with other person against whom she has sought any relief
under the DV Act, in that case, such person as Respondent has to be an adult male
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person. Given that aggrieved person has to be a female, such aggrieved person in
a domestic relationship can be a mother, a sister, a daughter, sister-in-law, etc.
b) Proviso, on the other hand, deals with limited and specific class of aggrieved
person, viz. a wife or a female living in relationship in the nature of marriage.
First time by this legislation, the legislator has accepted live in relationship
by giving those female who are not formally married, but are living with a
male person in a relationship, which is in the nature of marriage, also akin to
wife, though not equivalent to wife. This proviso, therefore, caters for wife or
a female in a live in relationship. In their case, the definition of “respondent”
is widened by not limiting it to “adult male person” only, but also including “a
relative of husband or the male partner’’, as the case may be.
What follows is that on the one hand, aggrieved persons other than wife or a
female living in a relationship in the nature of marriage, viz., sister, mother,
daughter or sister-in-law as aggrieved person can file application against adult
male person only. But on the other hand, wife or female living in a relationship
in the nature of marriage is given right to file complaint not only against
husband or male partner, but also against his relatives.
16. Having dissected definition into two parts, the rationale for including a
female/woman under the expression “relative of the husband or male partner”
is not difficult to fathom. It is common knowledge that in case a wife is harassed
by husband, other family members may also join husband in treating the wife
cruelty and such family members would invariably include female relatives
as well. If restricted interpretation is given, as contended by the Petitioner,
the very purpose for which this Act is enacted would be defeated. It would be
very easy for the husband or other male members to frustrate the remedy by
ensuring that the violence on the wife is perpetrated by female members. Even
when Protection Order under Section 18 or Residence Order under Section 19
is passed, the same can easily be defeated by violating the said orders at the
hands of the female relatives of the husband.
19. It is also well-recognized principle of law that while interpreting a
provision in statute, it is the duty of the Court to give effect to all provisions.
When aforesaid provisions are read conjointly keeping the scheme of the DV
Act, it becomes abundantly clear that the legislator intended female relatives
also to be Respondents in the proceedings initiated by wife or female living
in relationship in the nature of marriage, the same can easily be defeated by
violating the said orders at the hands of the female relatives of the husband.
19. It is also well-recognized principle of law that while interpreting a
provision in statute, it is the duty of the Court to give effect to all provisions.
When aforesaid provisions are read conjointly keeping the scheme of the DV
Act, it becomes abundantly clear that the legislator intended female relatives
also to be Respondents in the proceedings initiated by wife or female living in
relationship in the nature of marriage.”
18. This interpretation has been approved in Sandhya Manoj Wankhade v. Manoj Bhimrao
Wankhade, [2011] 2 SCR 261 by the Supreme Court. The learned Single Judge of the
High Court had, in that case, disposed off the writ petition with a direction to the
Appellant to vacate her matrimonial house, which was in the name of the second
Respondent and also directed the Trial Court to expedite the hearing of the wife’s
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miscellaneous criminal application within six months. A further direction was given
confirming the order relating to deletion of the names of the ‘other members’ from
the complaint filed by the Appellant. The judgment of the High Court was challenged
before the Supreme Court. Allowing the appeal, the Supreme Court held:
“13. It is true that the expression “female” has not been used in the proviso to Section
2 (q) also, but, on the other hand, if the Legislature intended to exclude females from
the ambit of the complaint, which can be filed by an aggrieved wife, females would
have been specifically excluded, instead of it being provided in the proviso that a
complaint could also be filed against a relative of the husband or the male partner.
No restrictive meaning has been given to the expression “relative”, nor has the said
expression been specifically defined in the Domestic Violence Act, 2005, to make it
specific to males only.
14. In such circumstances, it is clear that the legislature never intended to 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, 2005.
15. In our view, both the Sessions Judge and the High Court went wrong in holding
otherwise, possibly being influenced by the definition of the expression “respondent”
in the main body of Section 2(q) of the aforesaid Act.”
19. The ruling in Shumita Didi Sandhu, in this Court’s opinion, with due respect, did
not analyze the entirety of the definition of “shared household”. Nor did it link the
concept and the right to residence granted by the 2005 Act with the definition of
Mrespondenf’ which includes female relatives of the husband, and not just the male
relatives. That decision was rendered much before the ruling in Varsha Kapoor,
and the Supreme Court decision in Sandhya Manoj Wankhede. Its absence of any
discussion on the rights of women as against female relatives of the husband
regardless of whether the respondent had any right, or interest in the property, in
this Court’s opinion, results in limiting it to deciding the facts of that case. It would be
also necessary to notice a decision of the Supreme Court in Vimalben Ajitbhai Patel v.
Vatslabeen Ashokbhai Patel and Ors., 2008C4lSCC 649. There, the wife was beneficiary
of a maintenance order, which was sought to be enforced through execution, against
her mother in law’s property. The wife claimed that since it was a shared household,
the property could be attached. Repelling the argument, the Supreme Court held that
the obligation to provide maintenance was of the husband and any order in that regard
could be enforced against him, by attachment of his personal assets or properties.
It was in this context that the Court held that a shared household belonging to the
mother in law could not be subject matter of attachment. The context of that decision
was different as the Supreme Court, in this Court’s opinion, did not decide that despite
the definition of “shared household.enabling a wife the right of residence in premises
not owned by the husband, she could not claim to live there. Rather, in proceedings for
maintenance, the claim may not lie against the mother-in-law’s property- a domain
that the present case does not touch upon.
20. Crucially, Parliament’s intention by the 2005 Act was to secure the rights of aggrieved
persons in the shared household, which could be tenanted by the Respondent
(including relative of the husband) or in respect of which the Respondent had jointly
or singly any right, title, interest, or “equity”. For instance, a widow (or as in this
case, a daughter in law, estranged from her husband) living with a mother-in-law, in
premises owned by the latter, falls within a “domestic relationship•. The obligation
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not to disturb the right to residence in the shared household would continue even
if the mother-in-law does not have any right, title or interest, but is a tenant, or
entitled to “equity” (such as an equitable right to possession) in those premises. This
is because the premises would be a Mshared household•. The daughter-in-law, in
these circumstances is entitled to protection from dispossession, though her husband
never had any ownership rights in the premises. The right is not dependent on title,
but the mere factum of residence. Thus, even if the mother-in-law is a tenant, then,
on that ground, or someone having equity, she can be injuncted from dispossessing
the daughter in law. In case the mother in law is the owner, the obligation to allow
the daughter in law to live in the shared household, as long as the matrimonial
relationship between her and the husband subsists, continues. The only exception
is the proviso to 19(1)(b), which exempts women from being directed to remove
themselves from the shared household. No such exception has been carved out for
the other reliefs under Section 19, especially in respect of protection orders. Had the
Parliament intended to create another exception in favor of women, it would have
done so. This omission was deliberate and in consonance with the rest of the scheme
of the Act. There can be other cases of domestic relationships such as an orphaned
sister, or widowed mother, living in her brother’s or son’s house. Both are covered
by the definition of domestic relationship, as the brother is clearly a Respondent. In
such a case too, if the widowed mother or sister is threatened with dispossession,
they can secure reliefs under the Act, notwithstanding exclusive ownership of
the property by the son or brother. Thus, excluding the right of residence against
properties where the husband has no right, share, interest or title, would severely
curtail the extent of the usefulness of the right to residence.
21. The other aspect, which this Court wishes to highlight, is that the 2005 Act applies
to all communities, and was enacted “to provide more effective protection of the
rights of women guaranteed under the Constitution who are victims of violence
of any kind occurring within the family’’. The right to residence and creation of
mechanism to enforce is a ground breaking measure, which Courts should be alive
to. Restricting the scope of the remedies, including in respect of the right to reside in
shared household, would undermine the purpose of this enactment. It is, therefore,
contrary to the scheme and the objects of the Act, as also the unambiguous text of
Section 2(s), to restrict the application of the 2005 Act to only such cases where the
husband alone owns some property or has a share in it. Crucially, the mother-in-
law (or a father-in-law, or for that matter, “a relative of the husband”) can also be a
Respondent in the proceedings under the 2005 Act and remedies available under
the same Act would necessarily need to be enforced against them.
22. Likewise, the interpretation preferred by some learned single judges that where the
husband has some rights (as a member of the HUF, i.e. the Hindu Undivided Family)
and if those premises were the shared household, the wife can enforce her right to
residence, also constitutes an internally incoherent and restrictive interpretation of
the Act. As explained in Evneet Singh, such a construction is contrary to Parliamentary
intention that the law is a nonsectarian one. Indeed, the “joint” status of a family
referred to under Section 2 (s) is in a generic sense. To equate it with a HUF would
result in unintended benefits to one set of respondents, who are Hindus. Speaking
generically, “joint family’’ refers to a group of people, related either by blood or
marriage, residing in the same house. Instances of that can be found in almost all
parts of India. The general practice in India is that the son and his wife reside in
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the house of the (husband’s) parents after marriage, though the legal obligation to
maintain a child ceases as soon as she or he attains majority, the jural relationship
between the parents and the child continues. The concept of a “joint family” in law is
peculiar to Hindu law. No concept of a “joint family” similar to that of an HUF can be
found in Muslim law, Christian law or any other personal law. Therefore, a restrictive
interpretation of “joint family” by equating it to a HUF would result in implicit
discrimination, because women living in a shared household belonging to an HUF
(and therefore, Hindus) would have more security, by reason of their professing the
Hindu faith than others who are not Hindus. In fact, even among Hindus, women who
are married into or live in HUFs, as compared with those living with husbands, whose
parents own the property - on an application of Batra - would have the protection of
the Act, while the latter would not. This inequity was addressed by the Parliament
which stated in no uncertain terms that irrespective of title of the “Respondenf’ to
the “shared household”, a protection order can be made under Section 19(1)(a).
23. The facts of this case contain the classic elements of a husband seeking to evade his
responsibilities upon marital discord breaking out. He allegedly disappeared and
was “disowned” by his mother. The appellant’s mother-in law then instituted the
suit, to dispossess the daughter in law and her grand-children, claiming that she no
longer has any relationship with her son or her daughter in law. She based her claim
to ownership of the suit property on a will. The daughter in law has not admitted
the will. Nor has it been proved in probate proceedings. Often, sons move out, or
transfer properties or ownership rights, or shares in immovable properties, at the
hint of trouble or discord with their wives, in favour of their relatives. Likewise, the
parents of the husband often in such cases “disown” them after the son moves out
from the common or “jointpremises owned by either or both his parents, when there
is outbreak of marital discord. Courts have to be cautious in their approach, while
entertaining and short circuiting suits for possession, which are in effect directed
against the plaintiffs’ daughter-in law, or else the right of residence in shared
households would be a mere chimera, a teasing illusion which the law grandly
promises, but is seldom, if ever, able to enforce. In fact, the strategy of “disowning”
sons, through public notices or advertisement, is not to be taken lightly. For example,
even if a son is disowned by either parent, the death of that parent would, if intestate,
still lead to devolution of property upon that son. Indeed, a mere proclamation does
not have a dispositive legal effect, breaking all legally relevant familial ties. Thus,
absent a deed of relinquishment or other formal deed of partition of the family or
separation between the members, the Court must be cautious in denying statutory
rights to wives, as against members of the husband’s family, on the basis of such
tentative facts. To the contrary, if the Court is to place reliance on such acts, benefits
enacted by the 2005 Act in favour of the wife would be bypassed on account of
alleged, and possibly fleeting discords between the husband and his family. Indeed,
such an approach is neither legally tenable, nor viable given the scheme of the Act.
24. In view of the above discussion, the impugned judgment and decree of the learned
single judge is hereby set aside; parties are directed to present themselves before
the concerned single judge as per roster allocation, on 6th February, 2014 for
directions toward further proceedings in the suit. The appeal is allowed, under the
above circumstances, without any order as to costs.
qqq
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DOMESTIC VIOLENCE ACT : S.12, S.17, S.19, S.2(a), S.31IINDIAN PENAL CODE: S.2(f), S. 2(s),S.441,S.442,
S.448,S.498(a) [2012] 0 Supreme(Del) 34868
High Court of Delhi
SURESH KAIT, J.
Kavita Dass
Versus
NCT Of Delhi &Another
Cri.M.C. Nos.4282 & 4283 OF 2011 & Crl. M.A. No. 19670 & 19672 OF 2011 (stay)
Decided On: 17-04-2012
Cases Referrred:
“S R Batra and Anr. Vs. Smt. Taruna Batra Vimlaben Ajitbhai Patel Vs.
Vatslaben Ashokbhai Patel reported in (2008) 4 SCC 649
Smt. Kanwal Sood Vs. Nawal Kishore and Anr. (1983) 3 SCC 25
Judgment:
SURESH KAIT, J:
1. Vide this common judgment, I shall dispose of both the above mentioned petitions.
2. The petitioner has sought to quash FIR No.157 dated 07.12.2011 registered under
Section 448 Indian Penal Code, 1860 at PS. Defence Colony, New Delhi against
petitioner/wife and to set aside order dated 28.11.2011 passed by learned Additional
Sessions Judge, Saket District Courts, New Delhi in Appeal CA No.35/11 in case titled
Kavita Dass Vs Ranjit Dass?.
3. Brief facts of the case are that the petitioner got married to respondent No.2 on
26.12.1975 at Delhi. After marriage, the petitioner and respondent No.2 lived
together in abroad (Sri Lanka and Australia) as husband and wife for 12 long years.
Two sons were born out of the said wedlock in 1978 and 1981 respectively. The
elder son Rajad Das is married and settled in London while the younger son has
been living in Delhi.
4. In 1992, the respondent No.2 acquired a license to start his own company in the
name & style of ,Forex Company?. Accordingly, the couple came back to India and
started living in a rented accommodation bearing address C-293, Defence Colony,
New Delhi. During their stay in India, the respondent No.2 came in contact with
another woman, a spinster and fell in love with her. This was a flash point in the
relationship. All efforts were made by the petitioner to convince the respondent
No.2 to give up the illicit liaison with another woman, however, failed.
5. The situation further became worst. The respondent No.2 as a part of a well planned
act, sometime in July, 2009 left the premises C-293, Defence Colony, New Delhi and
abandoned the petitioner/wife. Thereafter, respondent No.2 in connivance with
the then landlord, got an eviction order in a suit filed against himself as well as the
petitioner/wife. The aforesaid suit for eviction was decided ex parte in favour of the
then landlord, accordingly, petitioner was forced to leave the shared household, i.e.
C-293, Defence Colony, New Delhi on 25.08.2010.
6. After the eviction, the petitioner was literally came on road and was forced to take
shelter at her brother-in-law?s house at C-52, Defence Colony, New Delhi. Petitioner
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stayed there from 25.08.2011 till 16.04.2011. Around July, 2009, the respondent
No.2 after abandoning the petitioner filed a divorce petition bearing No.1079/2009
against her which is pending before Ld. Additional District Judge, Sake!District
Courts, New Delhi.
7. In addition to the divorce petition, the respondent No. 2, around September, 2009
coerced and virtually cajoled the petitioner to sign an out of court memorandum of
understanding (MOU) by absolutely fraudulent means of representation, wherein,
the respondent No. 2 had stated that he would pay the permanent alimony of
Rs.451acs to the petitioner against a divorce by mutual consent.
8. Accordingly, on the basis of the aforesaid MOU, the respondent No. 2 filed a petition
for divorce and dissolution of marriage on the basis of mutual consent, however,
till date not even the first motion has taken place as the petitioner realized that her
signatures on the MOU were obtained by fraudulent representations. As such she
did not act upon the said MOU being well within her rights to do so.
9. The petitioner was compelled and constrained to approach trial court with complaint
filed under section 12 of the Domestic Violence Act, seeking interim measures
and interim relief in accordance with provisions of the said Act and in the facts
and circumstances of the case, the trial court vide interim order dated 10.09.2010
directed the respondent No. 2 to pay an amount of Rs.10,000/-to the petitioner as
an interim maintenance, as well as monthly rent of Rs.25,000/-from the date of
petitioner?s eviction from the then shared household.
10. Subsequently, the petitioner in the month of April, 2011 came to know that the
respondent No. 2 had taken another premises bearing address D-12, Defence
Colony, New Delhi on rent. Accordingly, on 17.04.2011, she entered in to her new
matrimonial home D-12, Defence Colony, New Delhi with the help of Protection
Officer Ms.Preeti Saxena, who handed over to her the keys of the front door, bedroom
door and balcony door from the respondent. Since then, the petitioner has been
residing with respondent No.2 at the aforesaid rented shared accommodation.
11. Thereafter, the petitioner on 18.04.2011, moved an application in the court of Ld.
MM, Ms. Pooja Talwar, Sake! District court seeking protection against her removal
from the aforesaid shared household i.e D-12 Defence Colony, New Delhi. An interim
order dated 19.04.2011 u/s 17 and 19 of the D.V. Act was passed by the above named
Ld. Magistrate, whereby the petitioner was granted right to live with the respondent
No.2 in above mentioned shared household. However, subsequently, Ld. MM vide
order dated 28.04.2011 vacated the earlier order dated 19.04.2011.
12. In the order dated 28.04.2011, Ld. MM observed that the present premises was not
a shared household. The petitioner while signing the MOU was fully aware that she
had to vacate the said premises, therefore, there was no reason for the petitioner to
enter the house of respondent No.2 forcefully, accordingly, the Ld. MM directed that
the petitioner may be removed from the premises by taking due recourse of law.
13. Mr. Vikas Pahwa, Ld. Senior Advocate appearing on behalf of the petitioner
submitted that the petitioner was forced to give an out of court undertaking on
05.06.2011 stating that she will vacate the premises as directed by the Ld. Trial
court. Subsequently, the petitioner, against order dated 28.04.2011, filed an Appeal
under Section 29 of the Protection of Women from Domestic Violence Act, 2005
before Ld. Sessions Court, Saket District Court, New Delhi. Smt.Raj Rani Mitra, Ld.
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ASJ, Saket Courts, New Delhi, granted an ex-parte stay on order of Ld. MM dated
28.04.2011, which was subsequently vacated vide order dated 09.06.2011 passed
by the Ld. Additional Sessions Judge on an application of respondent No. 2, and the
matter was transferred to Sh. A.K. Garg, Ld. ADJ, Saket District Courts, New Delhi,
which court was in seize of a connected appeal in the same matter.
14. Sh. A.K. Garg, Ld. ASJ, Saket Courts heard the arguments in Appeal No.35/11 and
reserved for order on 12.10.2011. Thereafter, Ld. ASJ adjourned the pronouncement
on 13 occasions before finally dismissing the appeal and upheld the Ld. MM?s
order dated 28.04.2011, whereby, the petitioner was directed to be removed from
Respondent No. 2/husband?s rented premises on the ground that the said premises
was not a shared household and the petitioner had no right to enter the said premises
forcefully.
15. Ld. counsel for the petitioner further submitted that FIR No.157 dated 07.12.2011
registered at P.S. Defence colony, is legally and factually unsustainable in law. Ld. ASJ
has committed a serious error in ignoring the fact that the house in question was
a matrimonial home and shared household. Moreover, no evidentiary value can be
given to out of court settlement deed entered into between the parties, which MOU
was signed by the petitioner under duress.
16. Further submitted that no divorce has taken place between the parties, therefore,
the petitioner has legal right to stay with her husband, it being her matrimonial
home.
17. Further Ld. Counsel for the petitioner refers to a judgment passed by Hon?ble
Supreme Court in a case titled as “S R Batra and Anr. Vs. Smt.Taruna Batra” reported
in (2007) 3 sec 169. wherein, it was held as under:-
“....a ushared 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 definition of ushared household?in Section 2(s) of the Act is not very happily
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•.
18. Further refers to a case decided by Hon?ble Supreme Court in Vimlaben Ajitbhai
Patel Vs. Vatslaben Ashokbhai Patel reported in (2008) 4 sec 649 I wherein, it was
observed as under:-
“....The Domestic Violence Act provides for a higher right in favour of a wife. She
not only acquires a right to be maintained but also thereunder acquires a right of
residence. The right of residence is a higher right. The said right as per the legislation
extends to joint properties in which the husband has a share...”
19. On perusal of the impugned order, ld. Judge was of the view that in no circumstances,
D-12, Defence Colony can be said to be shared household. In addition to that since
both the parties never resided together in the said house, therefore, that house
cannot be termed as shared household as per provision of Section 2(f), 2(s) r.w.S.
17 of PWDV Act. When the order was being dictated, counsel for the appellant had
appeared and stated that though the MOU was executed between the parties but
the complainant did not wish to abide by the same for the reasons known to the
appellant. It was mentioned in the order dated 18.04.2011, that the respondent
was fully aware that she had to vacate the earlier premises, therefore, there was no
183
reason for her to enter the house of the respondent forcefully, since the said house
cannot be said to a “shared household?, therefore, she may be removed from the
premises by taking recourse to due process of law.
20. It was further observed in the order passed by Ld. Additional Sessions Judge, Sake!
courts, New Delhi, while deciding the appeals of the appellant that the appellant?s
main grievance is that the order has been passed for registration of the FIR u/s 31
of the Act which the magistrate is not empowered under the Act because the word
.respondent?is specifically defined in the Act. Under the Act respondent means an
adult male person and it is very clear that the respondent would be a person from
the family of the husband only in the case the applicant is a wife.
21. Protection order was obtained uls 18. It is true that D.V. Act has been enacted to
provide for more effective protection of the right of women guaranteed under the
constitution who are victim of the violence of any kind. Section 2(a) of the Act defines
the aggrieved person. 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 violence by the respondent.
22. It was further observed by Ld. Additional Sessions Judge that the appellant had
entered in the house of the respondent without having any right, therefore, in these
circumstances, order passed by Ld. MM on 10.06.2011 is deemed to be an order
passed u/s 448 Indian Penal Code, 1860 for the offence of house trespass. In view of
that, both the appeals of the appellant was dismissed with direction to register an
FIR u/S 448 Indian Penal Code, 1860 against the appellant.
23. Mr. K.K. Manan, learned counsel appearing on behalf of respondent No. 2 submits
that respondent No. 2 and the petitioner entered in MOU and the respondent No.2/
husband agreed to pay a sum of Rs.45 lacs to the appellant with the condition that
she agreed to grant divorce by mutual consent. However, she did not come forward
for the same and the present house, which is on rent is not shared household. She
had neither complied with the conditions of MOU nor had she complied with order
passed by learned trial court.
24. Further submitted that the impugned order does not suffer from any illegality and
therefore, the instant petitions may be dismissed with exemplary costs.
25. Ld. Senior Counsel for petitioner on rebuttal submitted that the courts below have
wrongly passed the orders by directing SHO concerned to lodge FIR under Section
448 Indian Penal Code, 1860.
26. Ld. Counsel further refers to Section 441 of Indian Penal Code, 1860 according to
which the trespass should be with intention to commit an offence or to intimidate,
insult or annoy any person in possession of such property, or having lawfully
entered into or upon such property, unlawfully remains there with intent thereby to
intimidate, insult or annoy any such person, or with intent to commit an offence.
27. The petitioner herein did not entered in anybody?s property, but it was the house
of her husband and entered with the help of Protection Officer under the protection
of Domestic Violence Act. Therefore, she rightly entered the house which is her
matrimonial house.
28. Therefore, he submitted that the case against the petitioner cannot be lodged for
the criminal trespass. In Section 442 of IPC, the definition of house trespass is given,
which reads as under:-
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‘Whoever commits criminal trespass by entering into or remaining in any building,
tent or vessel used as a human dwelling or any building used as a place for worship,
or as a place for the custody of property, is said to commit “house-trespass”.
29. In the instant case, the petitioner is legally wedded wife of respondent No. 2, there
is no divorce taken place, she entered into the house of respondent No.2 with no
intention of committing offence and the petitioner has not committed any offence.
Therefore, both the court i.e. Trial and appellate court have gone wrong by directing
her to vacate the house which was taken on rent by her husband/respondent No.2
and to lodge an FIR against her.
30. Presently, where a woman is subjected to cruelty by her husband or his relative, it is
an offence committed under Section 498A of Indian Penal Code, 1860. The Civil Law
does not further address this phenomenal in its entirety. Therefore, it is by virtue of
Protection of women against Domestic Violence Act, which interalia seeks to provide
as under:-
(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
shared household;”
31. I have noted that in the judgment delivered by Hon?ble Supreme Court in the matter
of Smt. Kanwal Sood Vs. Nawal Kishore and Anr. (1983) 3 SCC 25. referred to by
learned counsel for the petitioner, it has been observed as under :-
“10 It may be pointed out that the appellant was allowed to occupy the premises
in 1967 by Shri R.C. Sood. Under the terms of gift-deed Shri Sood was entitled to
remain in occupation of the premises during his life time. He could as well grant,
leave and licence top the appellant to occupy the premises along with him. Now
the question arises about her status after the death of Shri R.C. Sood. At the most,
it can be said that after the death of Shri Sood the leave and license granted by Shri
Sood came to an end and if she stayed in the premises after the death of Shri Sood,
her possession may be that of a trespasser but every trespass does not amount to
criminal trespass within the meaning of section 141 of the Indian Penal Code. In
order to satisfy the conditions of section 441 it must be established that the appellant
entered in possession over the premises with intent to commit an offence. A bare
persual of the complaint filed by Respondent No. I makes it abundantly clear that
there is absolutely no allegation about the intention of the appellant to commit any
offence or to intimidate, insult or annoy any person in possession, as will be evident
from three material paragraphs which are quoted below:
32. That the late Shri R.C. Sood was occupying the said premises in accordance with
clause No. I of a gift-deed executed by him in favour of Shri Anand Mayee Sangh and
after his demise the said premises had to be delivered to Shri Anand Mayee Sangh.
3. That after the demise of Shri R.”. Sood, the accused was repeatedly requested
to voluntarily vacate and deliver the possession of the said premises to the Sangh
185
but the accused paid no heed and hence a notice dated 13.11.1973, copy of which
enclosed, was sent to the accused as required by U.P. Amendment of Section 448
I.P.C. the said notice was served upon accused on 14.11.73 as per postal A.D. receipt
attached herewith.
4. That the accused was required to quit and vacate the said premises by the 2oth
day of November, 1973 but instead of vacating the premises the accused has been
making unusual pretext and has thus committed an offence under section 448 I.P.C.”
11 The appellant may be fondly thinking that she had a right to occupy the premises
even after the death of Shri R. C. Sood. If a suit for eviction is filed in Civil Court
she might be in a position to vindicate her right and justify her possession. This is
essentially a civil matter which could be properly adjudicated upon by a competent
Civil Court. To initiate criminal proceedings in the circumstances appears to be only
an abuse of the process of the Court:
32. On perusal of aforesaid provisions and laws laid down by Hon?ble Supreme court,
it includes any household owned or tenanted by either of the parties in respect of
which either the aggrieved person/wife or the respondent or both jointly or singly
have any right, therefore, the petitioner being legally wedded wife has a right to live
with the husband, whether he lives in an ancestral house or own acquired house or
rented house. Therefore, if the respondent does not allow the aggrieved person then
by taking shelter of the court, the Magistrate may pass the order so that she may
enter in the house or she would not be thrown out from the house of his husband
without due process of law. Certainly, not otherwise, as directed by the Ld. MM and
upheld by the appellate court.
33. In my opinion, the court cannot ask the aggrieved person to vacate the house, even
though, may be on rent. However, she cannot be directed to vacate the same without
due process of law. The second direction of the court to register a case against the
aggrieved person on not vacating the house of her husband is not only bad in law but
is also against the mandate of the Act. The issue on shared household has already
been decided by the Apex Court in case of S.R. Batra (supra).
34. The impugned orders passed by the two courts below i.e the court of Ld. MM and
court of Ld. Additional Sessions Judge have defeated the very purpose of Act, and
therefore, the instant petitions are allowed and the impugned order mentioned
above are set aside.
35. Accordingly, the FIR No.157 dated 07.12.2011 registered under Section 448 Indian
Penal Code, 1860 at PS. Defence Colony, New Delhi against petitioner/wife is quashed
along with all the emanating proceedings there from.
36. Both the petitions are allowed and disposed of on above terms.
37. The applications for stay in both the petitions are disposed of being infructous.
38. No order as to costs.
qqq
186
CRIMINAL PROCEDURE CODE : 5.4821 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT:5.12,5.18, 5.19,5.20,5.20(2), 5.21,5.22,5.26, 5.29 [2012] 0 Supreme(Del) 35431
High Court of Delhi
M.L. MEHTA Sunil Madan

Versus
Mrs. Rachna Madan & Another
CRL. M.C. 3071 OF 2008
Decided on: 02-06-2012
Judgment:-
M.L. MEHTA, J.
1. This petition under Section 482 CrPC is filed seeking quashing of the criminal
complaint No. 262211 filed against the petitioner by his wife and daughter
(respondents No. 1 & 2 herein) under Section 12 of Protection of Women From
Domestic Violence Act, 2005 (for short the ‘Act’).
2. At the outset, it may be noted that in the aforesaid complaint of the respondents,
no order other than that of maintenance @ Rs. 30,000/- per month was passed by
the Metropolitan Magistrate and even none of the parties have challenged the said
order of maintenance. Thus, there is no order which is sought to be impugned in the
present petition. Under the Act and particularly Chapter IV thereto, the Magistrate
has been empowered to hear and dispose of the applications for various reliefs. This
is the Magistrate alone having jurisdiction, who has been empowered to pass the
order of protection as also of residence including interim etc. under the Act. Then, the
provisions also envisage ensuring the compliance of those orders by the Magistrate
and even proceeding for punishment in breach of orders. Further, under Section 29
of the Act, an appeal has been provided to the court of Sessions from the orders of
the Magistrate. This being the scheme of the Act and the primary duty and power
being with the Magistrate and there being no order which is sought to be impugned,
the complaint being at the nascent stage, I was outrightly of the view not to entertain
this petition and remand back the matter to the concerned Magistrate. However,
since after filing of the present petition under Section 482 CrPC, some proceedings
have taken place before this court and the parties have also been heard, I am of the
view that to some extent, the controversy can be addressed here leaving the rest to
be done by the Magistrate.
3. The couple was married on 27.2.1990. A daughter (respondent No.2) was born on
4.4.1991.The aforementioned complaint was filed by the respondents in the court
of M.M. on 8.10.2007. In the said complaint, the main allegations levelled by the
wife (respondent No.1) against the petitioner were that he is an alcoholic and drug
abuser, which he has not been able to give up despite repeated promises and some
treatments. She alleged that after drinking, the petitioner would go violent and break
expensive household things. She has mentioned about few specific instances of the
petitioner having behaved in this manner and breaking certain household articles.
She alleged that even the petitioner would pick up quarrels and beat her after getting
drunk. She has also mentioned few instances of having been beaten by the petitioner.
She averred that she had been tolerating this at the cost of her social deprivation and
187
embarrassment and also suffering due to his addiction as also his behaviour, but
it has become difficult to stay with him as he often becomes aggressive and could
harm anyone. She stated that now, she is unable to bear anymore at the hands of
the petitioner and intends to live a peaceful life even if it requires living separately.
She has specifically stated that now, it is not possible for her to live together. She
alleged that having seen him throughout, she has bona fide apprehension that the
petitioner may throw her and her daughter out of the matrimonial house where she
has been living for about nine years. She alleged the petitioner to be owning various
movable and immovable properties in his name, the details of which are stated in
Paras 25 and 26 of the complaint. She further stated that she being the Director
of the petitioner’s company, was getting Rs. 22,000/- per month and was also
being provided Rs. 98,000/- (approximately) per month as towards the household
expenses. She sought restraint order against the petitioner from selling, alienating
or creating third party interest in those properties. She has also sought the relief that
the petitioner be restrained from taking possession of the car from her, which was in
the name of the company.
4. The petitioner in reply to the complaint before Magistrate not only denied all the
allegations levelled against him, but levelled various counter allegations against his
wife. He also, with equal force levelled allegations of his wife not at all being caring,
picking up fights, using abusive language, not doing any household activities and
even causing physical violence and being highly materialistic. This being the state
of affairs, both levelling allegations of domestic violence against each other, it was
not at all possible to determine in the present proceedings, all these allegations, all
and counter allegations, all being triable issues. However, this being the admitted
factual situation that both of them cannot live together any longer, some solution
was required to be found out for resolving the controversies.
5. The wife had claimed the following reliefs in the complaint against the petitioner:
(i) restraint order against the petitioner from selling, alienating or creating any
third party interest in the assets mentioned in the complaint;
(ii) restraint order against the petitioner from taking forcible possession of the
Car DL-3CY-9031 from her;
(iii) restraint order against the petitioner from dispossessing her from the premises
where she has been living over the last nine years; and
(iv) protection order for their safety and security from the petitioner.
6. In the aforesaid complaint, an interim order of maintenance dated 3.11.2007 was
passed by the M.M., directing the petitioner to pay Rs. 33,000/- per month to the
respondents, which the petitioner undisputedly has been paying to his wife.
7. The present petition is filed by the petitioner seeking quashing of the complaint filed
against him by the respondents. The main grounds which have been alleged are that;
(i) he was paying Rs. 33,000/- per month as maintenance to his wife apart from
the expenses of running of the house. Undisputedly, he has been paying monthly
maintenance as also the household expenses; (ii) he has given his wife fair amount
of money over the years of their marriage and she has saved the same in the shape
of deposits amounting Rs. 80 lakhs in her accounts; (iii) she has been seeking claims,
interests and divisions in his self acquired assets, which was not permissible in
the present summary criminal proceedings. In this way, she has been abusing the
188
benevolent provisions of the Act. Now, since they cannot live together and the house
where they are living was owned by him, she is insisting to stay in this house only
and wants him to leave. In this regard, it is submitted that he is willing to offer her
a reasonable two bedroom accommodation in the area of similar standard, and that
she has been rejecting this offer only to extort large sums of money from him and
strip him completely of his earnings.
8. On all these premises, the petitioner, while maintaining his offer to maintain his
daughter and continue to pay the maintenance as also the alternative residential
accommodation to his wife, has sought quashing of the complaint.
9. In the present proceedings, she also claimed removal of the petitioner from the said
premises where she has been living for last nine years; the educational expenses of
their daughter studying in Australia; and the claim in the properties of the petitioner.
10. In reply to the present petition, the respondent wife while maintaining the behaviour
and conduct of the petitioner to be aggressive, abusive etc. as mentioned in the
complaint, has maintained to have right of residence in the same house where
she has been living for the last about nine years, which she claims to be ‘shared
household’ and also matrimonial home and asserts that the petitioner is liable to
be removed therefrom. With regard to the offer of alternative accommodation given
by the petitioner, it is stated that it does not debar her from the entitlement of the
shared household in the same premises. With regard to the plea that she was being
given adequate maintenance by the petitioner, it is stated that the monetary relief
envisaged under Section 20 (2) of the Act presupposes the entitlement of adequate,
fair and reasonable maintenance consistent with the standard of living to which
aggrieved person is accustomed and which cannot be below par with that of the
husband. With regard to the plea that she had savings of about Rs. 80 lakhs, it is
stated that the question as to whether the petitioner has given his wife a fair amount
of money over the years of their marriage as alleged by him, is a subject matter of
trial. In this regard, it is also stated that she of her own had made investments of Rs.
40 lakhs under mutual funds which cannot be withdrawn and some meagre amount
out of the savings made by her is lying in her saving account, which is insufficient
to meet the exigencies of life and cannot be used by them for day to day living. With
regard to the plea of the petitioner that the summary criminal proceedings could
not be used as division or claim of properties of the husband, it is stated that as per
Section 26 of the Act, any relief may be sought under Sections 18 to 22 of the Act
in addition to any other relief that an aggrieved may seek before a civil or criminal
court and thus, she was entitled to seek claim in the properties.
11. I have heard learned counsels for the parties and perused the record.
12. With regard to the claim of the respondent regarding aforesaid car, the petitioner is
stated to be having no objection in the respondent continuing to use the same for
her personal travel if it was agreed that as and when this vehicle was required for
the official or business works, the same would be made available. Since she has been
using said car without any objection for considerable time, I am of the view that she
can be permitted to use the same exclusively for her personal travel.
13. With regard to the maintenance, there is no dispute that the petitioner has been
paying Rs. 30,000/-per month in terms of the order of the M.M. passed in the
complaint.
189
14. With regard to her seeking claim in the properties of the petitioner, the learned
counsel for the respondents stated that she had a right to claim her share. I do not
find myself in agreement with the learned counsel for the respondents in this regard.
As per Section 26 of the Act, all the reliefs which could be claimed under the Act,
could be claimed by her in any other suit or proceedings, but it nowhere provides for
claiming of reliefs of shares or interests in the immovable assets of her husband by
partition or otherwise. She could not claim these rights under the present summary
criminal proceedings.
15. With regard to her claim of residence in the premises alleging the same to be shared
household, there is no dispute. The admitted fact is that the premises in question
where they both are living is a flat and that they both cannot live together any longer.
On the one hand, the petitioner has offered alternative residential accommodation
to his wife, who, on the other hand, has sought direction of his removal from the
said premises, alleging that he can stay in the farm house at Sohna, Haryana. The
question that may arise is as to whether she, while having a right of residence in the
shared household where she has been living for about nine years, and that when
both of them cannot live together, and the flat cannot be partitioned, whether the
petitioner should be directed to remove himself or the petitioner can be directed
to make arrangement of alternative accommodation. In fact, this seems to be the
real bone of contention between the parties. They both are adamant to stay in this
premises. The objective of providing right of residence to the wife was that she
should not be left homeless by an action of the husband. In a situation like this, I
cannot persuade myself to agree with the wife that the petitioner, who is the owner
of the house and in view of the settlement that was arrived at between them by
virtue of which she got few properties, should be directed to leave the premises and
made to stay in a farm house at far away place. In the case of Ajay Kumar Jain Vs.
Baljit Kaur Jain, 160 (2009) DLT 401 (DB), this court observed that a wife cannot
have right to live in a particular property and the same cannot become a clog on
the property denying the right of the husband to deal with the property when he is
willing to provide an alternative matrimonial home to her. It was also held that she
cannot insist on residing in the suit property alone when the husband had offered a
suitable alternative arrangement for her. In the given facts situation, the petitioner,
who undisputedly has acquired this house in his name from his earnings cannot be
made to leave this house and go and suffer alone in a far away place at this age. The
offer given by the petitioner seems to be quite just and reasonable and till such time
alternative arrangement of a suitable two bed room accommodation is made by
the petitioner for the residence of his wife, she would continue to stay there and in
case, they are unable to continue to live together any longer, the petitioner would
give her market rent of the two bed room accommodation in the similar locality
which the Magistrate will determine after hearing both the parties. Suitable order
will be passed by the Magistrate in this regard.
16. With regard to the claim of the educational expenses of their daughter, the petitioner
had been maintaining that this being his responsibility, he shall bear all the expenses
of education and maintenance of his daughter till she is married or able to maintain
herself. That aspect will also be further determined by the M.M. as from the material
available on record, it is not gathered as to whether the daughter still continues to
be entitled to maintenance by the petitioner.
17. With regard to her claim seeking protection from the petitioner, so long the couple
190
continues to reside in the same premises, it is expected that they shall not give any
cause of complaint to each other. However, protection order, if any required, will be
passed by the Magistrate.
18. The scheme of the Act does not envisage passing of any restraint order against
the petitioner in respect of his assets, movable or immovable except the shared
household. Thus, no order can be passed restraining the petitioner in dealing with
the properties in the manner he likes. The remedy, if any, in this regard, would be
available to the respondents not in the present proceedings, but elsewhere.
19. There was a settlement agreement arrived at between the parties on 2.6.2011.
Though copy of the settlement is not on record but, it is gathered that one of the
terms of settlement was that two plots bearing Nos. 1225 & 1226, C-Biock, Sushant
Lok, Phase I, Gurgaon were to be exclusively owned by the petitioner’s wife. In one
of the proceedings, the documents of these plots were given by petitioner to his wife.
However, it was later pointed out by her that some of the documents were missing
and one of the plot was in occupation of a third person. The petitioner had agreed to
accompany her to the aforesaid plots and hand over the vacant possession of those
plots to her. The learned M.M. will deal with this aspect and after hearing the parties,
shall take appropriate measures for giving effect to this part of settlement.
20. In view of above discussion, the case is remanded back to the court of leamed M.M.
to decide the remaining issues and pass appropriate orders. The parties are advised
to appear before the court of M.M.on 10th July, 2012.
21. With these directions, the petition is disposed of.
qqq
191
[2013] 4 EastCrC 9/ [2013] 4 JBCJ 109/ [2013] 0 Supreme(Jhar) 15752
IN THE HIGH COURT OF JHARKHAND AT RANCHI
H. C. MISHRA, J.
Rakesh Sachdeva - Petitioners

Versus
The State of Jharkhand - Opposite Parties
Cr. Rev. No. 1088 of 2012 With I.A. No.2380 of 2013
Decided On : 30.07.2013
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT :S.12,S.18, S.19,S.20,S.22
ORDER
H.C. Mishra, J.
Heard learned counsel for the petitioners, learned counsel for the State, as also
learned counsel for the complainant opposite party No.2.
2. The petitioners are aggrieved by the Judgment dated 03.10.2012 passed by learned
Additional Sessions Judge-11, Dhanbad, in Cr. Appeal No. 184 of 2010, whereby the
appeal filed against the Judgment and Order dated 19.07.2010 passed by Smt. Veena
Mishra, learned Judicial Magistrate, 1st Class, Dhanbad, in C.P. Case No. 754 of 2009/
T.R. Case No. 727 of 2010, has been dismissed by the learned Appellate Court below.
3. It may be stated that in the complaint filed under the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’), the petitioner No.
1, who is the husband of the complainant, has been directed to provide an alternative
accommodation to the victim complainant of the same level as being enjoyed, or
pay rent for the same. He has also been restrained from renouncing his rights in
the shared household. The petitioner No. 1 has further been directed to make the
payment of Rs.2,000/-per month for a period of 9 years and 1 month prior to the order,
which comes to Rs.2,18,000/-, medical expenses @ Rs. 200/-per month for the same
period, which comes to Rs.21,800/-and to make the payment of compensation of
Rs.50,000/-for mental injury, and he has been further directed to make the payment
of Rs.6,000/-per month towards the food, clothing, medication etc., from the date
of filing of the case. All the petitioners have been directed to make the payment of
Rs.10,000/each, as compensation to the victim complainant under section 22 of the
Act and they were also refrained from restraining the complainant from continued
access to her personal effects in the shared household. The petitioner No. 1 has also
been directed to make the payment of 50% of the arrears of Rs.6,000/-per month
from May, 2009 till July, 2010, within a period of two months and the rest arrear
amount and other amounts within a period of six months in three installments. In
view of the fact that it was found by the Trial Court that the complainant was residing
outside her matrimonial house Ishared household and as there was no evidence
against which the respondents be restrained from committing domestic violence,
she was not found entitled to any relief under section 18 of the Act.
4. The record shows that the complainant opposite party No. 2, filed the complaint
case before the Chief Judicial Magistrate, Dhanbad, which was numbered as C.P. Case
No. 754 of 2009 under the provisions of the Act. According to the complainant’s case
192
she was married to the petitioner No. 1, Rakesh Sachdeva, as per Hindu customs
on 21.2.1985, and thereafter she came to reside in the joint family house of her
husband at Dhanbad. In the year 1986 the elder brother of the husband, viz., Ramesh
Sachdeva, came from Punjab alongwith his family, and started living in the same
house and thereafter the trouble of the complainant lady began. It is alleged that she
was being subjected to mental agony by calling her as a barren lady, by the family
members, except her husband, as she had not given birth to any child. Subsequently,
the complainant along with her husband was shifted to the outhouse to avoid the
regular unruly scenes. The younger brother of the husband of the complainant was
married in the year 1988 and in the same year they were blessed with a daughter and
thereafter the agony of the complainant further increased for not having given birth
to any child, despite the marriage having taken place more than three years ago. She
was always asked to stay away from the family functions, festivals and ceremonies
and when such cruelty to the complainant further increased, the petitioner No. 1,
husband brought the complainant to her brother’s house on the pretext that her
absence from the house would ease the situation and with a promise to take her
back as soon as the situation normalized. She was however, never taken back to her
matrimonial home, except for a short period when her mother-in-law died in the year
2002, when she had visited her matrimonial home. Again the petitioners continued
casting aspersions against her being a barren lady and she was again brought at her
brother’s house. It was further alleged that while staying at her brother’s house, she
had taken up a job of a teacher in a local school, but there also she became a subject
of talk between the teachers due to her disturbed matrimonial life, which forced her
to leave her job due to mental and social stigma. All of a sudden the complainant
learnt that the petitioner No. 1 had filed a Title Matrimonial Suit bearing No. 100 of
2006 against the complainant for divorce on the ground of cruelty and desertion.
Claiming, that the complainant also perceived that her husband may alienate his
share of the joint family property in order to deprive her of her share in the same,
and stating that she had no means to maintain herself, whereas her husband was
having a lucrative business of supplying earth moving machinery to B.C.C.L. and its
sister concerns, the complaint was filed seeking protection under the Act.
5. Upon notice the petitioners appeared in the Court below and they filed their
written statement from which it appears that the marriage between the parties is
an admitted fact. Objection was taken by the petitioners in the Court below that no
report had been received from the Protection Officer as required under Section 12 of
the Act, and as such the complaint was not maintainable. The petitioners also denied
the allegation that the complainant was ever subjected to any mental cruelty by the
petitioners, and it was stated that the complainant in her W.S. filed in T.M.S. No. 100
of 2006 had stated that her husband was impotent and accordingly, the claim of
the petitioner that she was being called as barren lady was absolutely false. The
petitioners also denied the claim of the complainant for monetary compensation.
6. The record shows that both the parties adduced evidence in the Court below, both
oral and documentary, and on the basis of the detailed discussions of the evidence
on record, the Court below has found that the complainant had been able to prove
that she was mentally tortured and she was subjected to domestic violence by the
petitioners and that continued even after the year 1993 when she was dropped at
her brother’s house and not taken back in the matrimonial home.
193
7. The Trial Court below on the basis of the evidence on record also came to the
conclusion that it was due to the social stigma, that the complaint had to leave the
job of teacher. The Court below took into consideration the objection taken by the
petitioners that no report had been received from the Protection Officer as required
under Section 12 of the Act, and relying upon a decision of the Allahabad High
Court, found that Section 12 of the Act did not mandate for calling a report from the
Protection Officer, and held the complaint maintainable. The Court below however,
did not find the complainant entitled to any relief under section 18 of the Act, in view
of the fact that she was admittedly residing outside the matrimonial home, but she
was found entitled to the relief under section 19 of the Act and the respondents were
restrained from denying the continued access to the complainant to her personal
effects in the shared household and the husband was also directed to provide her an
alternative accommodation for which the rent was to be paid by her husband and he
was also restrained from renouncing his rights in the shared household, apart from
the other monetary reliefs and compensation under sections 20 and 22 of the Act, as
detailed above.
8. Learned counsel for the petitioners has submitted that the impugned Judgments and
Order passed by the Courts below are absolutely illegal and cannot be sustained in
the eyes of law. It has been submitted that the only allegation against the petitioners
as regards the domestic violence is that they ill-treated the complainant calling
her a barren lady, whereas it is an admitted position in her W.S. filed in the Title
Matrimonial Suit filed by the petitioner No. 1, that the petitioner No. 1 is an impotent
person. It has been submitted that when the complainant realized her mistake, she
tried to amend the pleadings, but the same was not allowed and all these documents
have been proved in the Court below. Learned counsel has submitted that without
taking those documentary proof into consideration, the Court below has held that
she was being subjected to domestic violence on the ground that she was being
called a barren lady and not able to bear a child. Learned counsel submitted that the
admission by the complainant that the petitioner No. 1 is an impotent person, the
allegation of torturing her as a barren lady, has no legs to stand.
9. It is further submitted by the learned counsel that actually the complainant treated
the petitioner with cruelty and torture and she herself left the matrimonial home
in the year 1993 and she never returned back thereafter. It has been submitted that
it has come in the evidence that there was no telephonic conversation between the
parties since the year 2007, and as such the allegation of domestic violence does
not stand at all. Learned counsel has also submitted that only when the suit for
divorce was filed by the petitioner No. 1 on the ground of cruelty and desertion,
the complainant filed the instant complaint and she has also filed an application for
restitution of conjugal rights.
10. Learned counsel has further submitted that the allegation that she had left the job of
a teacher due to social stigma is absolutely false. In this connection learned counsel
has placed reliance upon the documents filed and proved by the complainant
herself, to show that she was working in the school. These documents were marked
as Exhibits-’1’ and ‘2’ which only show that the petitioner was working in the school
satisfactorily. There is nothing in these documents to show that the petitioner had
left the job due to any social stigma as alleged by her.
11. It is next contended by learned counsel for the petitioner that the Court below has
194
not given any finding as regards the income of the petitioner and accordingly, the
monetary reliefs and compensation could not have been granted by the Courts
below without giving a finding about the income of the petitioner. In this connection
learned counsel has placed reliance upon the decision of the Orissa High Court in
Manorama Swain Vs. Giridhari Swain, reported in, (1993) 3 RCR (Cri.) 279. Learned
counsel has also placed reliance upon a decision of the Rajasthan High Court in
Madhu Sudan Vs. Pushpa @ Bhawana, reported in (1987) 2 RCR (Cri.) 144, wherein
it has been held that when the order of maintenance pendentelite is not supported
by reasons and does not discuss the pros and cones of rival versions of the parties
relating to the quantum of income of the husband, the order is liable to be set-aside.
12. Lastly, it has been submitted by learned counsel for the petitioners that the impugned
orders granting monetary relief to the complainant under section 20 of the Act have
been granted for a period of nine years and one month from the date of order, which
was passed on 19.7.2010, and accordingly this period goes back to sometimes in
the year 2001, when the Act itself was not in force and accordingly, the monetary
relief has been granted to the complainant with retrospective effect from prior to
the coming of the Act into force, which cannot be allowed. With these submissions
learned counsel for the petitioners has submitted that the impugned Judgments are
absolutely illegal and are fit to be set aside.
13. Learned counsel for the State, as also learned counsel for the complainant opposite
party No. 2, on the other hand have opposed the prayer and have stated that the
Courts below have discussed the evidence in detail and have come to the conclusive
finding that the complainant was being subjected to domestic violence since the year
1986 itself, and ultimately she was dropped at her brother’s place in the year 1993
and the domestic violence continued to her even thereafter, due to the social stigma
of being a deserted women, due to which she had to leave the job of teacher in the
school, as she was not able to bear the social stigma. Learned counsel has submitted
that domestic violence has been defined in Section 3 of the Act, which includes the
verbal, emotional and economic abuses, as well as mental injury, and accordingly, it
cannot be said that the complainant was not subjected to domestic violence by the
petitioners. Learned counsel has submitted that even if the complainant had stated
in the written statement that her husband was impotent, this in itself is not sufficient
to disbelieve the evidence of the complainant that she was being characterized as a
barren lady due to the fact that she did not bear any child. Learned counsel further
submitted that the complainant in her cross-examination has clearly stated that the
petitioner had to leave the job of the school due to the social stigma which she was
not able to bear, and accordingly it cannot be said that since there is nothing in the
Exts-1 & 2 to show that she had left the job of the teacher in the school due to the
social stigma, the same was not proved.
14. Learned counsel further submitted that the petitioner No. 1, who had examined
himself as D.W.-1 in the Court below, had admitted in his cross-examination that
he is a Mechanical Engineer and presently he is running a firm which deals in earth
moving machines’ spares, and he is running the firm since 1991 itself. It is submitted
by learned counsel for the complainant that since no income was disclosed by the
petitioner from his business, in view of the admitted fact that the petitioner was
running the said business, the Court below found that the petitioner No. 1 is a man
of means, and has also held that the complainant has no source of income and
195
accordingly, allowed the monetary reliefs and compensation to the complainant
under Sections 20 and 22 of the Act.
15. Learned counsel for the petitioner has also submitted that it is well settled principle of
law that the Courts may take into consideration the conduct of the parties even prior
to the coming into force of the Act, and as such, there is no illegality in allowing the
monetary relief and compensation with the retrospective effect. In this connection
learned counsel has placed reliance upon the decision of the Supreme Court of India,
reported in V.D. Bhanot Vs. Savita Bhanot, reported in (2012) 3 SCC 183, wherein it
has been held as follows:-
“12. We agree with the view expressed by the High Court that in looking into a
complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even
prior to the coming into force of the PWD Act, could be taken into consideration
while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi
High Court has also rightly held that even if a wife, who had shared a household in
the past, but was no longer doing so when the Act came into force, would still be
entitled to the protection of the PWD Act, 2005:
Placing reliance on this decision, learned counsel submitted that there is no illegality
in the impugned Judgments and Order passed by the Courts below, worth interference
in the revisional jurisdiction.
16. After having heard learned counsels for both the sides and upon going through the
record, I find that the Trial Court as well as the Appellate Court below have dealt with
the evidence led by both the parties, both oral and documentary, and have come to
the conclusion about the domestic violence, to which the complainant opposite party
No. 2 had been subjected to. As the findings of the Courts below are based on the
evidence on record, the same cannot be interfered with in the revisional jurisdiction.
All the findings in the impugned Judgments regarding the domestic violence to which
the complainant was subjected to, by the petitioners right from the year 1986, when
the elder brother of the husband came and started living in the same house, which
continued even after 1993 when the complainant was left by her husband at her
brother’s place, are fully supported by evidence. The definition of domestic violence
as given in Section 3 of the Act clearly embraces the verbal, emotional and economic
abuses, as also the mental injury to the victim, and accordingly, no fault can be found
in the Judgments passed by the Courts below finding that the complainant was
subjected to domestic violence by the petitioners. Similarly, even the finding by the
Court below that the complainant had to leave the job due to social stigma attached
to a deserted lady, is also based on the evidence on record and the same cannot be
interference with.
17. Thus, I do not find any illegality and/or irregularity in the impugned Judgments and
Order passed by the Courts below, finding that the complainant had been subjected
to domestic violence and she is entitled to the protection under the Act.
18. Similarly, I do not find any merit even in the submission of the learned counsel for
the petitioner that the Court below has not given any finding as regards the income
of the petitioner. The petitioner No. 1, who had examined himself as D.W.-1 in the
Court below, had admitted in his cross-examination that he is a Mechanical Engineer
and presently he is running a firm which deals in earth moving machines’ spares,
and he is running the firm since 1991 itself. Since no income was disclosed by the
petitioner from his business, the Court below has found that the petitioner No. 1
196
is a man of means, and accordingly, has rightly allowed the monetary reliefs and
compensation to the complainant, and the same cannot be said to be excessive,
taking into consideration the nature of the business of the husband.
19. This takes us to the last submission of the learned counsel for the petitioner that
some of the monetary reliefs under Section 20 of the Act have been allowed with
retrospective effect from prior to the coming into force of the Act. The petitioner
No. 1 has been directed to make the payment of Rs.2,0001-per month for a period
of 9 years and 1 month, as also the medical expenses @ 2001-per month for the
same period, which clearly shows that these monetary reliefs under Section 20 of
the Act have been allowed to the complainant sometimes from the year 2001. The
Protection of Women from Domestic Violence Act, 2005, came into force with effect
from 26.10.2006, and this clearly shows that the said monetary reliefs have been
granted to the complainant with retrospective effect from prior to the coming into
force of the Act. In my considered view, this is a clear violation of Article 20 (1) of
the Constitution of India. It is a well settled principle of law that the penal provisions
do not operate retrospectively. {Authority: Ha it Singh Vs. State of Punjab, reported
in (2011) 4 sec 441}. However, I do not find any illegality and Ior irregularity in
the other directions, monetary reliefs and compensation allowed by the Trial Court
below, worth interference in the revisional jurisdiction.
20. In view of the aforementioned discussions, the monetary reliefs granted to the
complaint opposite party No. 2, under Section 20 of the Act, which have been allowed
for the period of 9 years and 1 month, are hereby, set aside, and it is directed that
the same may be recalculated at the same rates as allowed by the Court below, with
effect from the coming into force of the Act, and not prior to that date. With this
modification in the impugned Judgment and Order dated 19.7.2010 passed by Smt.
Veena Mishra, learned Judicial Magistrate, st Class, Dhanbad, in C.P. Case No. 754 of
2009 I T.R. No. 727 of 2010, this application stands dismissed.
21. Accordingly, I.A. No. 2380 of 2013 filed by the complainant opposite party No. 2, for
vacating the stay order dated 7.2.2013, also stands disposed of.
qqq
197
[2011] 0 Supreme(Jhar) 128861 [2011] 4 JLJR 299/ [2012] 1 JCR 153 2011 (4) JLJR 299
IN THE HIGH COURT OF JHARKHAND AT RANCHI
PRASHANT KUMAR, J.
Swarup Mandai.-.Petitioner
Versus
The State of Jharkhand & Anr- Opp.party
Cr. Revision No.130 of 2010
Decided on : 13.10.2011
A) Protection of Women from Domestic Violence Act, 2005-5ection 12:- It is not
illegal for the Magistrate to pass an order under the Act without looking into
a report of the Protection Officer or service provider unless the Protection
Officer or service provider suo motu submitted any report with regard to a
domestic incident to him.(Paras 9 to 11)
B) Protection of Women from Domestic Violence Act, 2005-Section 12:- A direction
given by the Magistrate to pay the medical expenses of the aggrieved person
on the basis of oral and documents produced is a finding of fact on the basis of
evidence and cannot be interfered in the revision jurisdiction by High Court.
(Para 13}
C) Protection of Women from Domestic Violence Act, 2005-section 12- Discharge
of the respondent from the complaint case also filed u/ss. 498A 279 and 323,
IPC has no relevance under this Act in the present case.(Para 12)
INDIAN PENAL CODE : 5.323, 5.379, S.498(a)l PROTECTION OF WOMEN FROM
DOMESTIC VIOLENCE ACT : 5.12
Order
This revision application is directed against the order dated 05.01.2010 passed by
Sessions Judge,Jamtara in Criminal Appeal No. 17 of 2009, whereby with modification
in quantum of maintenance allowance he dismiss the appeal filed against the order
dated 09.09.2009 passed by Chief Judicial Magistrate, Jamtara in Cr. Misc. (DV)case
no. 03 of 2009.
2. It appears that O.P.No.2 has filed an application under section 12 of Protection of
Women from Domestic Violence Act, 2005 ( hereinafter refer as RAct”) for grant
of maintenance as the petitioner, ( husband of O.P.No.2) had committed domestic
violence upon her. It further appears that Chief Judicial Magistrate had issued
notice to the petitioner and, thereafter, petitioner filed written statement. Then,
both the parties adduced evidence in support of their case. It further appears that
Chief Judicial Magistrate, Jamtara while passing order dated 09.09.2009 had come
to the conclusion that petitioner committed domestic violence and, accordingly,
directed the petitioner to pay maintenance allowance to O.P.No.2 to the tune of Rs.
4000/- per month. He further directed that petitioner should pay Rs. 2000/towards
maintenance of his son. The Chief Judicial Magistrate further directed the petitioner
to pay Rs. 25,000/- towards medical expenses and Rs. 30,000/- towards damages
caused to the “Stridhan” of O.P.No.2. It appears that aforesaid order of Chief Judicial
Magistrate was challenged by the petitioner by filing Criminal Appeal No. 17 of
198
2009 in the court of Sessions Judge, Jamtara, which was dismissed vide order dated
05.01.2010 with modification in the maintenance allowance payable to O.P.No.2
and her son. Learned Sessions Judge directed that petitioner shall pay . 2500/- per
month to? O.P.No.2 and Rs. 1500/- per month to her son as maintenance allowance.
3. While assailing aforesaid two orders, learned counsel for the petitioner submits that
as per proviso to Section 12 of the Act , it is imperative upon the Magistrate to call
for a report from the Protection Officer and consider the same before passing any
final order on the application filed by aggrieved person. It is submitted that in the
instant case, Magistrate has not called any report from the Protection Officer and
passed order without considering it. Hence, order of Chief Judicial Magistrate cannot
be sustained. It is further submitted that for the same relief, O.P.No.2 had filed a
complaint case bearing P.C.R.Case no. 385/2006 under section 498A,379 and 323
I.P.C. It is submitted that in aforesaid case petitioner was discharged from the said
complaint case because no witness was produced by the complainant in that case.
Accordingly, it is submitted that the present application under section 12 of the said
Act is not maintainable.
4. It is further submitted that O.P.No. 2 has not produced any medical bill showing
that she incurred Rs. 25,000/- towards her medical expenses. Thus, the order of the
learned courts below awarding medical expenses is liable to be set aside. It is also
submitted that no report of Nephrologist has not been filed to show that O.P.No.2
was suffering from Kidney disease. Thus finding of the court below that she was
suffering from kidney disease cannot be sustained.
5. On the other hand, learned counsel for the O.P.No.2 submits that as per proviso to
section 12 of the Act a Magistrate is required to consider the report of Protection
Officer, provide the same was received in his court. If the Protection Officer did not
submit any report, then in that case it is not mandatory for the Magistrate to call for
a report from the Protection Officer and consider the same.
6. It is further submitted that admittedly, in this case, report of Protection Officer has
not been received in the court of Chief Judicial Magistrate, Jamtara. Under the said
circumstance, non-consideration of said report before passing impugned order have
no bearing on it.
7. It is further submitted that petitioner has been discharged in P.C.R case because
no witness was produced in that case, whereas in the present case maintenance
allowance granted in favour of opposite parties after considering evidence adduced
by both the parties. Thus, discharge of petitioner in the aforesaid case has no bearing
in the impugned orders. It is further submitted that O.P.No.2 has filed prescription
issued by medical practitioner to show that she was suffering from Kidney disease
as well as other ailments. Learned counsel further submitted that it has come in the
evidence of all the witnesses examined by the O.P.No.2 that she made huge expenses
towards her medical treatment and the said statement of witnesses had not been
challenged by the petitioner. Accordingly, it is submitted that orders of the courts
below awarding medical expenses are legal and require no interference.
8. Having heard submissions of the learned counsel, I have gone through the record of
this case. Sub-Section (1) of Section 12 of the ‘Act’ reads as follows:
12.Application to Magistrate -(1) An aggrieved person or a Protection Officer or any
199
other person on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act.
Provided that before passing any order on such application, the Magistrate shall take
into consideration any domestic incident report received by him from the Protection
Officer or the service provider.”
9. From perusal of the Sub-section (1) of Section 12 of the Act, it is apparent that
aggrieved person can also file an application seeking one or more relief enumerated
in the Act. Proviso to Sub-section (1) of Section 12 made it imperative upon a
Magistrate to take into consideration any domestic incident report of Protection
Officer or service provider if the same is received by him.
10. From perusal of aforesaid provision of law, it is clear that it is not imperative for the
Magistrate to call for a domestic incident report from Protection Officer or service
provider. It only make it mandatory that if Protection Officer or service provider suo
motu send a report to the Magistrate the same must be considered by him before
passing any order.
11. Admittedly, in this case, no domestic incident report received in the court of the Chief
Judicial Magistrate, Jamtara either from Protection Officer or service provider Under
the said circumstance, there was no report before the Chief Judicial Magistrate which
he could consider before passing impugned order. Accordingly, I find no illegality in
this respect.
12. Now, coming to second contention , it is ‘NOrth mentioning that in the complaint
case, petitioner was discharged, because no evidence was produced in that case.
Thus, discharge of petitioner in the aforesaid complaint case have no bearing on
the result of this case. Hence, I find no merit in the second contention of the learned
counsel for the petitioner.
13. I further find that learned Sessions Judge and learned Chief Judicial Magistrate
had concluded that O.P.No.2 was suffering from kidney disease on the basis of oral
and documentary evidence produced by O.P.No.2. Thus aforesaid finding which is
purely a finding fact does not require any interference by this Court in exercise of
its revisional jurisdiction, unless petitioner shows that the same are perverse. It is
needless to say that petitioner failed to do so.
14. Under the said circumstance, I find no merit in this revision, which is, accordingly,
dismissed.
qqq
200
[2012] 0 Supreme(AP) 37430/ [2012] 0 CrLJ 3462/ [2012]3 ALT(Cri) 163
HIGH COURT OF ANDHRA PRADESH
G. BHAVANI PRASAD, J.
A. Ashok Vardhan Reddy & Others

Versus
Smt. P. Savitha & Others
Criminal Petition Nos.7063 of 2008 and 2539 of 2009
Decided on : 29-02-2012
JUDGMENT
The petitioners in Criminal Petition No.7063 of 2008 are accused 1 to 3 in C.C. No.48
of 2008 on the file of the II Metropolitan Magistrate, Cyberabad at LB. Nagar, Ranga
Reddy District.
2. The Woman Sub-Inspector of Police, Saroomagar women police station filed the
charge-sheet in the said case alleging that P. Krishna Reddy and P. Kalavathi are
the parents of Saritha, the 1st respondent in Criminal Petition No.7063 of 2008.
Saritha was married to the 1st accused on 27-08-2005 and on the same day the 1st
accused and Saritha left for the United States of America, as Saritha had to report
at West Virginia University on 29-08-2005. Soon after arriving at the United States
of America, the 1st accused demanded Saritha for money and took away 35 tulas
of gold from her. The parents of Saritha visited the United States of America from
12-10-2005 to 07-11-2005 and still the 1st accused harassed Saritha physically
and mentally and threatened her and her parents. Saritha gave a complaint to West
Virginia University police and requested her father to give a complaint to the police
in India. Accordingly, P. Krishna Reddy gave a complaint on 30-10-2006 stating the
above facts and further stating that he met all the expenses demanded by accused 1
to 3 at the time of the marriage and the demand of the 1st accused to Saritha was to
give Rs.4,00,000/-. Her gold was sold away by the 1st accused and the sale proceeds
were appropriated by him. The 1st accused was using the credit cards of Saritha
being unemployed. The complaint was registered as Crime No.1098 of 2006 under
Section 498A of the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act
and was investigated into. The 2nd and 3rd accused surrendered before the Court
on 20-12-2007 and were released on bail, while the 1st accused was absconding.
Hence, the charge.
3. Accused 1 to 3 claimed in the criminal petition that when the couple left for the
United States of America on the date of marriage itself, it was impossible to presume
any demand for money and though the 1st accused returned to India on 09-03-2006,
Saritha/1st respondent stayed back in the United States of America, filed a petition
for divorce before the Family Court of Monongalia County, West Virginia, United
States of America and was granted a decree of divorce by an order, dated 12-03-
2007, which had become final. The 1st respondent is working in the United States of
America after obtaining divorce. The police initially submitted a final report on the
complaint of Krishna Reddy, referring the case as lacking in jurisdiction on 18-09-
2007 and again at the request of the 1st respondent on 22-10-2007, the case was
reopened and further investigated. The petitioners contended that the 1st petitioner
201
and the 1st respondent never led their marital life in India and they are no longer
wife and husband having lived together in the United States of America only for 5
months andc10 days. Hence, they desired quashing of further proceedings in C.C.
No.48 of 2008.
4. The 1st respondent in her affidavit in Criminal M.P. No.28 of 2009 claimed that the
petition should have been filed against P. Krishna Reddy, her father, who gave the
complaint to the police. She was misdescribed as Savitha, while she is Saritha. The
criminal proceedings are independent of the civil proceedings and even the air ticket
for the 1st accused for the travel on 27-08-2005 was purchased by Krishna Reddy.
The 1st accused was demanding an additional dowry of Rs.30,00,000/-to repay the
loans he incurred at Singapore and India. His parents also followed up the demand
through telephone calls to her and her father. The 1st accused severely beat her in
the presence of her parents in the United States of America. The 1st accused was
spending money for alcoholic drinks while residing with her in her hostel room. The
2nd accused met Krishna Reddy at Hyderabad on 30-03-2006 and 8-10-2006 and
the 1st accused met him on 27-08-2006 when the demand for Rs.30,00,000/- was
reiterated and the 1st respondent was also in India on 27-08-2006. Krishna Reddy
was authorized by the 1st respondent through Internet on 09-09-2006 to give a
complaint to the police. The divorce case was subsequent. Both the 1st respondent
and the 1st accused are Indian citizens and so are their parents. The 1st accused and
the 1st respondent resided in both the countries and the divorce was granted on the
basis of cruel and inhumane treatment. The 1st accused returned to India in March,
2007 to avoid action by the United States police. The 1st respondent returned to
India after completion of her M.S. and is unemployed and unmarried. There was no
compromise between the parties and the 1st respondent is suffering from mental
agony and shock, while the 1st accused got remarried immediately. Hence, the
1st respondent desired that the interim stay granted be vacated and the criminal
petition be dismissed.
5. While so, the petitioners in Criminal Petition No.7063 of 2008 filed Criminal
Petition No. 2539 of 2009 to quash the proceedings in D.V.C. No.4 of 2009 on the file
of XI Metropolitan Magistrate, Cyberabad initiated against them by Saritha who is
impleaded as the 2nd respondent in Criminal Petition No.2539 of 2009.
6. In the domestic violence case, Saritha, the 2nd respondent in Criminal Petition No.
2539 of 2009, sought for protection orders, return of ‘Sthridhana’, monetary relief,
compensation, damages and other appropriate reliefs under the Protection of Women
from Domestic Violence Act, 2005 (for short “the Act’’) against the petitioners in
Criminal Petition No. 2539 of 2009. She also desired for cancellation of the passport
of the 1st petitioner, and the total amount claimed by her was Rs.48.80 lakhs. She also
alleged the petitioners herein to have committed other offences covered by another
crime and alleged in her affidavit that her residence with the respondents to the
case at Hyderabad and the United States of America was from 28-08-2005 to 12-03-
2006. She alleged being threatened with adverse publicity, character assassination
and personal vilification. She claimed to have been subjected to beating, abusing,
misbehaving, demanding money and mental and bodily injury by all the respondents
to the case and she claimed that by the memorandum of understanding dated 11-05-
2007, the 2nd petitioner admitted that he and his son took amounts to a tune of Rs.
8,00,000/- from Krishna Reddy, which he promised to return. She claimed that the
202
1st petitioner herein already got married to somebody else and that she returned to
India in September, 2007.
7. The petitioners in Criminal Petition No.2539 of 2009 contended that the 1st
petitioner and the 2nd respondent lived together only for two months, while the
2nd respondent lived separately for about four months in the United States of
America for pursuing her studies in M. S. There were differences between the couple
since the date of marriage and the husband was subjected to mental and physical
cruelty leading to separate living. The petitioners claimed that the XI Metropolitan
Magistrate, Cyberabad took cognizance of the complaint by the 2nd respondent in
D.V.C. No.4 of 2009 concerning the alleged domestic violence prior to the statute
coming into fonce with effect from 26-10-2006. The domestic violence case could
not have been pursued against a woman, the 3rd petitioner, in view of Section 2(q) of
the Act. The Act is not applicable to a divorced woman, as an aggrieved person under
Section 2 (a) has to be a woman who is or has been in a domestic relationship with
the respondent. There was no domestic incident report from the protection officer
or service provider and a direct complaint is not contemplated by the Act. After C.C.
No.48 of 2008, filing of the domestic violence case is invoking parallel jurisdiction of
Courts and hence, the petitioners desired the further proceedings in D.V.C. No.4 of
2009 to be quashed.
8. In the affidavit of the 2nd respondent in Criminal M.P. No.3330 of 2009, the 2nd
respondent stated that she and the 1st petitioner resided on the date of the marriage
at the residence of the petitioners at Champapet, Hyderabad. The petitioners
received Rs.5.25 lakhs at the time of the marriage and a total of Rs.17.25 lakhs was
appropriated by the 1st petitioner through gold, credit cards and bank account
of the 2nd respondent. The 2nd respondent was even hospitalized in the United
States of America due to beating. The 1st petitioner was necked out of the hostel
on 12-03-2006 due to his unbearable behaviour. But still he was harassing the 2nd
respondent through telephone, e-mail and entering the hostel, etc. The 2nd petitioner
approached P. Krishna Reddy and signed a memorandum of understanding on 11-
05-2007 with the intervention of some elders agreeing to pay back Rs. 8,00,000/-
and the same was deposited in a joint account in HDCCB, Vanasthalipuram. Again the
entire amount was withdrawn on 18-06-2007 by impersonation resulting in crime
No.171 of 2008 of Vanasthalipuram police station. The VII Metropolitan Magistrate,
Hayathnagar, Cyberabad ordered on 04-09-2008 reinvestigation by the police, but
the petitioners are unlawfully influencing the police. D.V.C. No.4 of 2009 is, hence, in
continuation of the earlier proceedings and an application under Section 12 of the
Act need not be routed through police or the protection officer. The petitioners are
only respondents in the case and not accused, as the case is civil in nature. A criminal
petition to quash the proceedings is, hence, not maintainable in view of the very
statement of objects and reasons of the Act. As the divorce was only on 12-03-2007
and as the harassment and cruelty were continued by the 1st petitioner and cheating
by the 2nd petitioner after the memorandum of understanding on 11-05-2007 was
subsequent to 26-10-2006 when the Act came into force, the case is maintainable.
The provisions of the Act are retrospective, as Section 2 (a) refers to a ‘woman’ who
has been in a domestic relationship and Section 2(f) refers to two persons who have
lived together in a shared household at any point of time. The acts of the petitioners
amount to domestic violence in a series of events, concerning which no question of
limitation arises. The Proviso to Section 2(q) makes the 3rd petitioner also liable
203
and in view of Section 36 of the Act, which makes the Act not in derogation of any
other law, the domestic violence case and the criminal case are independent of each
other, more so, in view of Section 26 of the Act. Hence, the 2nd respondent sought
for vacating the interim stay granted and desired this criminal petition also to be
dismissed.
9. While the interim stay granted in Criminal Petition No.7063 of 2008 was made
absolute on 26-12-2008, the interim stay granted in Criminal Petition No.2539 of
2009 did not appear to have any specific order of extension after 14-07-2009.
10. Heard Sri T. Pradyumna Kumar Reddy, learned counsel for the petitioners in Criminal
Petition No.7063 of 2008, Sri Sharad Sanghi, learned counsel for the petitioners
in Criminal Petition No.2539 of 2009 and Sri P. Krishna Reddy, learned counsel
representing the 1st respondent in Criminal Petition No.7063 of 2008/the 2nd
respondent in Criminal Petition No. 2539 of 2009.
11. On the material placed on record by both the parties, the following factual
background emerges. P. Saritha and A. Ashok Vardhan Reddy, daughter of P. Krishna
Reddy and P. Kalavathi and son of A. Jani Reddy and A. Vijayamma respectively, were
married at Hyderabad on 27-08-2005 and both are Indian citizens with visas of
the United States of America. The couple left for the United States of America on
the same day. A decree of divorce was granted by the Family Court of Monongalia
County, West Virginia, United States of America on 12-03-2007 on the basis of cruel
and inhumane treatment with liberty to distribution of marital estate and alimony.
In the meanwhile, P. Krishna Reddy gave a complaint to Saroomagar police on 30-
10-2006, which was registered in Crime No.1098 of 2006 and was charge-sheeted
against A. Ashok Vardhan Reddy and his parents in C.C. No. 48 of 2008 on the file of
the II Metropolitan Magistrate, Cyberabad at L.B. Nagar, Ranga Reddy District under
Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition
Act. While so, Saritha filed an application under Section 12 of the Act against A. Ashok
Vardhan Reddy and his parents, taken cognizance by the XI Metropolitan Magistrate,
Cyberabad in D.V.C. No.4 of 2009. Both the criminal petitions are with a request to
quash the respective proceedings.
12. Apart from the above admitted background, the claims of P. Saritha in her affidavit
and the contents of the copies of documents filed by her allege that the moment the
couple reached the United States of America, the 1st accused demanded for a sum of
Rs.4,00,000/and then an additional dowry of Rs.30,00,000/-, which demands were
also supported by his parents through telephone calls to Saritha and Krishna Reddy.
The parents of Saritha were claimed to be in the United States of America from 12-
10-2005 to 07-11-2005, even in whose presence there were demands for money
and physical and mental violence. The 1st petitioner was claimed to be unemployed
and to be an alcoholic, spending gold, money and funds in the bank account of
Saritha for such purpose. The demands for money were claimed to have been made
by the 2nd petitioner on 30-03-2006 and 08-10-2006 and by both the 1st and 2nd
petitioners on 27-08-2006 at Hyderabad, while Saritha was also at Hyderabad on
27-08-2006. The copies of the report of the West Virginia University Health Services,
dated 27-03-2006, the statement of Saritha dated 23-03-2006, the case reports of
the West Virginia Department of Public Safety, dated 23-03-2006 and 19-05-2006
and the final divorce decree granted by the Family Court of Monongalia County,
West Virginia, dated 12-03-2007 indicate Saritha to be complaining of domestic
204
abuse and violence and the Family Court to have granted an ex parte decree on the
finding of the parties cohabiting together till 09-03-2006 and Saritha to be entitled
to absolute divorce on the basis of cruel and inhumane treatment. Subsequently,
a memorandum of understanding was claimed to have been executed by the 2nd
petitioner in favour of Krishna Reddy with the intervention of some elders on 11-
05-2007 agreeing to pay Rs.8,00,000/-. The amount was claimed to have been
withdrawn by impersonation from the joint account resulting in crime No.171 of
2008 on the file of Vanasthalipuram police station. The documents accompanying
Criminal M.P. No.3330 of 2009 in Criminal Petition No.2539 of 2009 further show the
break up of Rs.17,70,000/- said to have been spent by Krishna Reddy at the time of
marriage, a copy of memorandum of understanding between the 2nd petitioner and
Krishna Reddy, dated 11-05-2007, a report by the son of Krishna Reddy to the police
about withdrawal of Rs.8,00,000/-, the order of the Magistrate’s Court directing
investigation in Criminal M.P. No.3155 of 2008, etc. A copy of email message of the
1st petitioner to the family of Saritha about the divorce proceedings and copies of
documents relating to C.C. No.1954 of 2000 on the file of the Additional Judicial
Magistrate of First Class, Hyderabad East and North, Ranga Reddy District against
Krishna Reddy and two others were also filed during hearing. A copy of passport of
Saritha was also filed during hearing in corroboration of her alleged movement from
and to India. In so far as C. C. No.1954 of 2000 is concerned, any conduct of Krishna
Reddy leading to his prosecution by his wife is an irrelevant factor for consideration
of these two criminal petitions on merits and the nature or conduct of Krishna
Reddy is no probablising factor or proof of the probable conduct of Saritha or the 1st
petitioner herein vis-a-vis their matrimonial relationship.
13. Even regarding the truth or otherwise of the various allegations made by the
opposing parties concerning the sequence of events that ultimately led to these
two criminal petitions, in a restricted summary enquiry in the petitions under
Section 482 of the Code of Criminal Procedure invoking the inherent powers of this
Court, the High Court will not convert itself into a fact finding Court and it will not
indulge in an elaborate trial and conclusive findings of fact regarding the questions
in controversy between the parties. The examination of the issues of fact and law
raised and adjudication of the same will be confined to the extent of considering any
justification for invocation of the inherent powers of the High Court to interfere with
the proceedings before the trial Courts in question.
14. The well settled parameters governing the exercise of the inherent power under
Section 482 of the Code of Criminal Procedure should be kept in mind while examining
the questions in issue. Illustratively, in VenkateswaraRao v. Venkateswarlu (1992 (J)
AU466), it was held that when the very conduct of the petitioner led to criminal
proceedings, it will be an abuse of process of Court for him to seek quashing of the
proceedings under Section 482 of the Code of Criminal Procedure. In Papa Rao v.
State (2002 (1) ALT (Crl.) 300 (D.B.) (A.P.), a Division Bench of this Court laid down
that the power under Section 482 of the Code of Criminal Procedure has to be used
very sparingly and in exceptional circumstances very cautiously.
15. With this caveat, the first question that arises is the maintainability of the domestic
violence case against a woman/the 3rd petitioner in Criminal Petition No.2539 of
2009.
16. The petitioners relied on UmaNarayanan v. Priya Krishna Prasad (2008 (TLS)
205
1227198), wherein Ajay Kant v. Alka Sharma (2008(2) Crimes 235 (M.P.)was relied
on for the principle that an application under Section 12 of the Act against persons,
who are not adult male persons, is not maintainable. The learned Judge agreed with
the view and held that an application under Section 12 of the Act is not maintainable
as against a woman in view of Section 2(q) read with Sections 19, 31 and 33. S.R.
Batra v. Taruna Batra (2006 (TLS) 43393) was also relied, but the Supreme Court
was dealing with the question whether the daughter-inlaw can claim any right of
residence in the house belonging to the mother-in-law and not the husband, and
not the question as to whether a domestic violence case is maintainable against a
woman as a respondent. However, in Criminal Petition No.4106 of 2008, dated 22-
10-2008, a learned Judge of this Court followedAjay Kant v. Alka Sharma (4 supra) to
hold that female members cannot be made as respondents in the proceedings under
the Act. Thereafter, a Division Bench of this Court considered in AfzalunnisaBegum
v. State of Andhra Pradesh (2009 (2) ALD (Crl.) 155 (AP)the entire issue with
reference to Sections 2(f), 2 (q), 3, 12, 18, 19, 21 and 31 of the Act and the Statement
of objects and reasons for the Bill. The Division Bench opined that giving effect to
all the provisions in the Statute, the Act does not exclude ‘woman’ altogether in a
proceeding initiated under the Act and the ‘respondent’ as defined in Section 2(q) of
the Act includes a female relative of the husband depending upon the nature of the
reliefs claimed against the respondent in the domestic violence case.
17. The matter is set at rest beyond controversy by the decision of the Apex Court in
SandhyaManoj Wankhade v. Manoj Bhimrao Wankhade (2011 (2) MLJ (Cri) 429),
wherein the Court of Session and the High Court held females to be not included in
the definition of ‘respondent’ in Section 2(q) of the Act. The Supreme Court held that
the Proviso to Section 2 (q) widens the scope of the definition of a ‘respondent’ by
including a relative of the husband or male partner and as no restrictive meaning has
been given to the expression ‘relative’ nor has the said expression been specifically
defined in the Act, it is clear that the Legislature never intended to exclude female
relatives of the husband or male partner from the ambit of a complaint that can be
made under the provisions of the Act. A.N. Sehgal v. Raje Ram Sheoram (,AIR 1991 SC
140§) relied on by the petitioners for guiding the interpretation of Proviso to Section
2 (q) needs no further reference in view of the binding precedent from the Apex
Court on Section 2 (q) Proviso itself. As the female relatives of the husband or male
partner are, thus, not excluded from the applicability of the Act, if it is otherwise
applicable, the domestic violence case against the 3rd petitioner cannot, therefore,
fail on the ground of her sex.
18. The decision in Chandra Rekha v. State of Andhra Pradesh (2010 (2) ALD (Crl.) 689
(AP)is to the effect that mere impleadment of petitioners in domestic violence case
does not give rise to criminal offence to quash the proceedings at the initial stage.
The decision incidentally, thus, casts doubts on the maintainability of a petition
under Section 482 of the Code of Criminal Procedure for quashing the proceedings
at the initial stage before any respondent can be punished for any offence under the
Act or has been facing proceedings calling for such punishment.
19. The decision in Mohammad Maqueenuddin Ahmed v. State of A.P. (2007 Cri.L.J. 3361
= 2007(2) ALD (Crl.) 248) may not be of any assistance, as the question of liability
of any of the petitioners 2 and 3 to the reliefs claimed in the domestic violence
case cannot be considered to have crystallized even at the initial stage when the
reliefs sought for were directed against all the three petitioners and Saritha cannot
206
be considered, ex facie, to be disentitled to such reliefs, if she is able to prove her
allegations during the enquiry. The sufficiency or otherwise of the allegations made
is for the trial Court to determine and not for this Court to go into.
20. The next question raised is about the events leading to the domestic violence case
happening much prior to 26-10-2006 when the Act came into force and the Act
having no retrospective effect.
21. The petitioners relied on Anil Kumar Goel v. Kishan Chand Kaura (AIR 2008 SC 899),
wherein the Apex Court held that all laws that affect substantive rights generally
operate prospectively and there is a presumption against their retrospectivity,
if they affect vested rights and obligations, unless the legislative intent is clear
and compulsive. It was, hence, pointed out that the question whether a statutory
provision has retrospective effect or not depends primarily on the language in which
it is couched. Similar is the principle laid down in State of M.P. v. Rameshwar Rathod
(AIR 1990 SC 1849), wherein the normal rule of construction is stated to be that
a provision in a statute is prospective but not retrospective. In that case, not only
there are no specific words to indicate the provisions of retrospective effect, but the
positive provisions are to the effect that the amendment must be deemed to have
come into effect on a particular date.
22. General principles apart, a learned Judge of this Court held in U.U. Thimmanna v.
U. U. Sandhya (2009(1) ALT (Crt.) 285 (A.P.)that it is a fundamental principle of
law that any penal provision has no retrospective operation, only prospective and
as there was no allegation in that case either in the report or in the statement or
in the complaint of the 1st respondent therein with regard to the acts of domestic
violence that took place on or after 26-10-2006 when the Act came into force, the
continuation of the proceedings in the domestic violence case was held to be an
abuse of process of Court.
23. The above decision was cited before the Court in K. Ramaraju v. K. Lakshmi Pratima
(2008(2) ALD (Crl.) 1 (AP), wherein it was consequently noted that it is true that
Section 1(3) of the Act made the statute come into force from the appointed date as
per Gazette Notification, which notification brought the Act into force from 26-10-
2006. It was also noted that neither Section 1 nor any other provision directly or
indirectly indicates any retrospective effect to the provisions of the statute. However,
without going into the question whether the provisions of the Act can be retroactive
in relation to any continuing events amounting to domestic violence as defined under
Section 3 of the Act, it was opined that irrespective of any retrospective or retroactive
effect to the provisions of the Act, the continuing state of affairs since the date of the
Act coming into force, ex facie, make the petitioner have the required cause of action
for pursuing a remedy under Section 12 of the Act for obtaining necessary orders or
reliefs. The reliefs claimed were opined to be in present time and not past.
24. Hon’ble Sri Justice K.C. Bhanu, who decidedU.U. Thimmanna v. U.U. Sandhya (13
supra), was again considering the question in MohitYadam v. State of Andhra Pradesh
(2010 (1) ALD (Cri.) 1 (AP)and made it clear that the object of the Act is to provide
for effective protection of the rights guaranteed under the Constitution, of women,
who are victims of violence of any kind occurring within the family. His Lordship
after an exhaustive reference to the principles of statutory interpretation, had also
noted that no specific finding was given in K. Ramaraju v. K. Lakshmi Pratima (14
supra) as to whether the Act is retrospective or prospective in operation. The learned
207
Judge noted that none of the provisions of the Act has direct penal consequences
and as seen from the provisions of the Act, some new remedies are provided to the
women with regard to existing rights. The remedies did not alter the contract or
right nor had it taken away any vested right. The learned Judge also pointed out
that the words ‘at any point of time’ and ‘lived together’ cannot be understood in
narrow sense so as to mean that such living together is only after the Act came into
force. The leamed Judge concluded that in its sweep, shared household between two
persons by relationship as defined in Section 2(f) of the Act would commence from
the date of marriage, adoption, consanguinity or joint family. Making it clear that in
deciding the question of applicability of particular remedial statute to past events,
the language used is no doubt most important factor to be taken into account, the
learned Judge stated the same to be not positively stated as an inflexible rule but use
of present tense or present perfect tense is decisive of the matter that the statute
does not draw upon past events for its operation. Referring to the words ‘who is’ or
‘has been’ in Clause (a), ‘who live or have’ in Clause (f), ‘who is, or has been’ in Clause
(q) of Section 2 of the Act, the learned Judge opined that they may denote the events
happened before or after the Act came into force. The learned Judge also noted
that there cannot be any dispute that present perfect tense is used to denote the
action beginning at some time in the past and continue up to the present moment.
Holding that the definition clause must be read in the context of the subject matter
and the scene of the Act and consistent with the objects and other provisions of the
Act, it was noted that Section 26 of the Act refers to legal proceedings before other
Courts before or after the commencement of the Act, which will not be so, if the
Act is prospective in nature. Unambiguously noting that if the remedies provided
under Sections 18 to 22 of the Act are applicable prospectively to acts or omissions
of domestic violence that occurred prior to 26-10-2006, then the aggrieved person
who suffered violence prior to that date would be deprived of claiming any relief
under the Act, the learned Judge found no justification or reason to deny certain
remedies available to women who suffered domestic violence prior to 26-10-2006
as such a narrow interpretation will defeat the object and purpose of enacting the
Act. As the Act is no criminal law with any direct penal consequences, the learned
Judge concluded that acts of violence that occurred prior to 25-10-2006 would come
within the meaning of domestic violence as defined under the Act and hence, the Act
is retrospective in operation.
25. Grasim Industries Ltd. v. Collector of Customs, Bombay (2002) 4 SCC 297)1aid down
that in matters of interpretation, every provision and every word must be looked
at generally and in the context in which it is used and not in isolation whenever the
language is clear, the intention of the Legislature is to be gathered from the language
used. In GarikapatiVeeraya v. N. Subbaiah Choudhry <AIR 1957 SC 540 (1), a five
Judge Bench of the Supreme Court laid down the golden rule of construction that
in the absence of anything in the enactment to show that it is to have retrospective
operation, it cannot be construed also to have the effect of altering the law applicable
to a claim in litigation at the time when the Act was passed. Herein it has to be
noted that the Act itself showed from the various provisions the retrospectivity
or retroactivity of its operation to the consequences of acts or omissions that took
place prior to the Act coming into force, which amount to an act of domestic violence
as governed by the Act. Similarly in BanwariDass v. Summer Chand (AIR 1974
SC 1032), the words ‘have been’ have been interpreted as immediately prior to a
208
specific time. The justifiable period which can be considered to be immediately prior
to the specific time under the Act, will be essentially one depending on the facts
and circumstances of each case and the same cannot be defined with mathematical
precision for universal application without any elasticity in matters governing basic
human relations, more particular1y matrimonial and family relations. It is true that
in Secretary, Regional Transport Authority v. D.P. Sharma (AIR 1989 SC 509), the
words ‘has been’ were interpreted stating that whether the expression ‘has been’
occurring in a provision of a statute denotes a transaction prior to the enactment
of the statute in question or a transaction after the coming into force of the statute
will depend upon the intention of the Legislature to be gathered from the provision,
in which the said expression occurs or from the other provisions of the statute. In P.
Jeevan v. Chief Secretary to Government of A.P. (1997 (1) ALD 73), the phrase ‘has
been’ received consideration, but the question was not probed fully on the facts and
circumstances of the case. In MohitYadam v. State of Andhra Pradesh (15 supra)
every relevant provision of the Act was analysed to understand the import of the
words ‘has been’ used in relation to living in domestic relationship.
26. Mohit Yadam v. State of Andhra Pradesh (15 supra) continues to hold the field and
if the Act is retrospective in operation, the domestic violence case cannot fail on the
ground of the sequence of events involved herein being prior to the Act coming into
force, while the question whether such events amounted to domestic violence and
were probablised to have so happened is a question to be gone into on merits and
decided by the trial Court and not herein.
27. Then comes the question as to the need for the aggrieved person being a wife by the
time of initiating and prosecuting the domestic violence case. The petitioners referred
to the passage on Domestic Violence from Halsbury’s laws stating the prov1s1ons
relating to matrimonial injunctions in a County Court to be applicable to a man and
a woman who are living with each other in the same household as husband and wife.
SivakamiAmmal v. Bangaruswami Reddi (AIR 1954 Madras 1039) interpreting the
word ‘wife’ with reference to the Madras Hindu Bigamy Prevention and Divorce Act,
1949 was also referred to, wherein the word ‘wife’ was held to mean a person who
would have been a wife but for the decree of divorce or dissolution passed in the
trial Court. The decision of the Apex Court in ChandDhawan v. Jawaharlal Dhawan
(1993) 3 Supreme Court Cases 406)was also relied on, wherein after an exhaustive
reference to the case law, the Apex Court was primarily looking at the words ‘at the
time of passing any decree’ or ‘at any time subsequent thereto’ used in Section 25
of the Hindu Marriage Act, 1956 vis-a-vis the request for permanent alimony or
maintenance. S.R. Batra v. Taruna Batra (5 supra) was also again referred to about
‘living at any stage in a domestic relationship’.
28. The decision by a learned Single Judge of this Court in A. Sreenivasa Rao v. State of
Andhra Pradesh (2011 (2) ALD (Crl.) 191 (AP)also needs to be referred to, in which
it was opined that when there was no jural relationship of man and wife between
the 1st petitioner and 2nd respondent therein by the date of filing of D.V.A. No.18 of
2007, the case in D.V.A. No.18 of 2007, prima facie, is not maintainable. It was also
noted that the dates when the alleged violations under the Act have occurred, were
also not stated, due to which the 2nd respondent therein was not entitled to proceed
against the petitioners therein under the provisions of the Act.
29. With great respect, the principle laid down in MohitYadam v. State of Andhra Pradesh
209
(15 supra) did not appear to have been placed before His Lordship and the elaborate
reasoning given in MohitYadam v. State of Andhra Pradesh clearlyshowed the
existence of any jural relationship of a man and wife between the aggrieved person
and the respondent by the date of filing of the domestic violence case, is not a sine
qua non for the maintainability of the domestic violence case nor is it necessary that
the acts of domestic violence need to happen only after the Act came into force. The
decision in A. Sreenivasa Rao v. State of Andhra Pradesh (23 supra) appeared to have
mainly revolved round the facts in issue therein and no principle of law appears to
have been laid down to be considered as a precedent. Hence, followingMohit Yadam
v. State of Andhra Pradesh (15 supra), in which the question was discussed from
every conceivable angle with which reasoning I am in total respectful agreement,
the fact that divorce was granted by a foreign Court between Saritha and the 1st
petitioner, will have no effect on the maintainability of the domestic violence case,
if the allegations made therein otherwise bring the dispute within the province of
the Act, the entitlement to the reliefs claimed being, of course, dependent on the
ultimate proof of such allegations.
30. That such an understanding and interpretation is to be adopted, is also clear from
the view taken by another learned Judge of this Court in SikakolluChandra Mohan
v. Sikakollu Saraswathi Devi (2010 (2) ALD (Crl.) 391 (AP), wherein separation
between the parties was prior to the Act, but it was seen whether the cause of action
arose or cause of action continued to exist even after the Act coming into force.
The learned Judge observed that even though separation between the parties was
prior to the Act coming into force, still economic abuse by way of deprivation of the
aggrieved person of right to residence and right to maintenance etc., would continue
both before and after the Act coming into force and hence, it cannot be said that the
mother has no cause of action to maintain the domestic violence case after the Act
coming into force.
31. In fact in D. Velusamy v. D. Patchaiammal (2010 (4) Kerala Law Times 384), the
Supreme Court examined the provisions of the Act and noted that the expression
‘domestic relationship’ includes not only the relationship of marriage but also a
relationship ‘in the nature of marriage’ to be akin to common law marriage and
directed the Family Court to decide whether the man and woman had lived together
for a reasonably long period of time in a relationship which was in the nature of
marriage. The Supreme Court specifically noted the term ‘wife’ to be including, under
Section 125 of the Code of Criminal Procedure, a woman who has been divorced by
a husband or who has obtained a divorce from her husband and has not remarried.
A woman not having the legal status of a wife was noted to have been, thus, brought
within the inclusive definition of the term ‘wife’ consistent with the objective. The
principles laid down by the Apex Court also may be in tune with the understanding
of the word ‘wife’ as inclusive of a woman who has been a wife.
32. The manner in which the application under Section 12 of the Act had been presented
direct by Saritha to the Magistrate was also attempted to be interpreted as fatal to
the maintainability of the domestic violence case and the decision in M. Palani v.
Meenakshi (AIR 2008 Madras 162)was relied on. The learned Judge incidentally also
held that Section 2(q) does not say that the aggrieved person and the respondent
should have lived together for a particular period and referred to the definition of
‘domestic relationship’ between two persons as one who live or have at any point of
time lived together. That apart, the learned Judge held that before passing an order
210
by the Magistrate, he shall take into consideration the domestic incident report
received from the protection officer. The learned Judge observed that a conjoint
reading of both Sections 12 and 26 will make it clear that when a Magistrate passes
an order, he shall receive the report from the protection officer. However, it has
to be noted that the issue before His Lordship was more about the necessity for a
family Court or a civil Court to have and consider a report from the protection officer
before passing an order. It is seen from Milan Kumar Singh v. State of U.P. (2007
Cri.L.J. 4742)that a plain reading of section 10 was held to show that the aggrieved
person can file a complaint directly to the Magistrate concerned. The learned Judge
pointed out that the word ‘or’ used in Section 12 of the Act is very material, which
provides choice to the aggrieved person to approach and there is no illegality in
directly approaching the Magistrate for taking cognizance in the matter. It is for the
Magistrate concerned to take the help of the protection officer or service provider
after receiving the complaint, provided he feels it necessary for final disposal of the
dispute between the parties. Only if the parties concerned or the Magistrate take
the help of the protection officer, he will submit a domestic incident report to the
Magistrate concerned. This view is in perfect tune with the language of the statute
and object and purpose of the Legislation. Therefore, the domestic violence case
cannot fail merely on the ground of the 2nd respondent directly approaching the
Magistrate with her application.
33. Satyav. Teja Singh <AIR 1975 SC 105), RameshVenkat Perumal v. State of A.P. (1998
(1) ALD (Crl.) 122 (AP), the decision of Madras High Court, dated 02-04-2008 in
Criminal O.P. No.7156 of 2007 and a hard copy relating to the Act from internet
relied on by Sri Krishna Reddy, hence, need no further reference being more about
the legal consequences on the status of the parties due to a foreign judgment and the
applicability of the Act to past events with present consequences.
34. Viswanathanv. Rukn-ui-Mulk Syed Abdul Wajid (AIR 1963 SC 1)is also about the
conclusiveness or effect of a foreign judgment.
35. Concerning prosecution of parallel proceedings simultaneously on the same cause
of action, in M. Nirmala v. Dr. Gandla Balakotaiah (2008(2) ALT 241), the question
was the entitlement to interim relief in a suit pending before a family Court with
reference to Section 19 of the Act and the learned Judge pointed out that the law
provided different fora for different remedies. Likewise in Lalmuni Devi v. State of
Bihar (2001 (1) ALT (Crl.) 219 (SC), the Apex Court held that mere maintainability of
a civil claim does not mean that a criminal complaint cannot be maintained and has
to be quashed.
36. The question of multiplicity of proceedings arising out of the same set of facts was
considered in depth in Kothamasu Nagavenkata Suresh Babu v. Kothamasu Suneetha
(2009 (3) ALT (Crl.) 242 (A.P.)and it was held that-
“The very nature of such rights, liabilities and proceedings arising out of relationships
in matrimony, blood and adoption as illuminated by the legislative scheme, policy,
purpose and object, obligates the Court to adopt an interpretation permitting the
pursuit of various alternative remedies simultaneously or successively with the only
duty for the respective Courts being to note the scope, content and nature of the other
proceedings and to mould the grant of respective reliefs with reference to the reliefs
granted in such other proceedings or the change of circumstances brought about
on the reliefs granted or the subsequent grant of reliefs in the other proceedings.
211
Hence, in respect of such rights and liabilities, the filing, pendency and pursuit of
the proceedings under a different provision under a different law are not per se a
disabling factor against the prosecution of the proceedings under another provision
under another law simultaneously or successively.”
It was also held that the impact of finality of an earlier adjudication of the same
issues on the legality and sustainability of such subsequent proceedings may make
them amount to an abuse of the process of the Court and interference with such
proceedings to secure ends of justice will be on an altogether different legal premise,
but not on the mere inconvenience of multiplicity of proceedings with the same
factual background, if they are otherwise permissible in law. Such situation did not
arise in this case and the maintainability of both the domestic violence case and the
criminal case simultaneously, therefore, cannot be in question. In fact, the learned
Judge in A. Sreenivasa Rao v. State of Andhra Pradesh (23 supra) was dealing with a
domestic violence case and a criminal case simultaneously being pursued and held
that the domestic violence case cannot be considered to be a criminal proceeding
and the mischief of Article 20 Clause (2) of the Constitution of India or Section 300
of the Code of Criminal Procedure is not applicable in such an event.
37. Sri T. Pradyumna Kumar Reddy, learned counsel for the petitioners in Criminal
Petition No.7063 of 2008 relied on Kans Raj v. State of Punjab (,AIR 2000 sc 2324).
The Apex Court noted therein that for the fault of the husband, the in-laws or the
other relations cannot, in all cases, be held to be involved in the demand of dowry.
The Apex Court noted that a tendency has developed for roping in all relations of
the in-laws of the wives, which will ultimately weaken the case of the prosecution
even against the real accused. In SushiiKumar Sharma (2005 AIR SCW 3569)also,
the Apex Court administered a note of caution about the complaints, which are not
bona fide and have been filed with oblique motives and directed the Courts to take
care of the situation within the existing framework to avoid a new legal terrorism.
The Supreme Court cautioned against following any strait jacket formula or casual
dealing with such allegations and the ultimate objective of the legal system should
not be lost sight of. Similarly in NeeraSingh v. State I (2007) DMC 545)also, it was
noted that exorbitant claims are being made about the amounts spent on marriage,
other ceremonies, dowry and gifts due to which the Court should insist on disclosing
the source of such funds. It was also stated that vague allegations against every
member of the family of the husband cannot be accepted at face value and the
allegations have to be scrutinized carefully by the Court before framing the charge.
The principles laid down in the three decisions relied on by Sri T. Pradyumna
Kumar Reddy should put the trial Court on guard to appreciate the allegations made
against the petitioners with reference to such factors, but no deep probe into the
acceptability and reliability of the allegations can be indulged herein, more so, in the
absence of any clinching proof either way on the material placed before the Court
herein. Refraining from expressing any opinion on merits of the rival contentions,
the matter has to be, therefore, left to be decided by the trial Court.
38. Sri Sharad Sanghi, learned counsel for the petitioners in Criminal Petition No.2539
of 2009 also referred toT. Venkateshwarlu v. State of A.P. (1998(5) ALD 426)with
reference to the question of jurisdiction. In that case, a decree of divorce was granted
in Sweden and the offence of bigamy was alleged to have been committed at Nellore
in Andhra Pradesh. The cruelty under Section 498A of the Indian Penal Code was
also not alleged to be at Hyderabad, but was alleged to be at Nellore and Sweden.
212
Consequently, it was held that the Courts or police at Hyderabad have no jurisdiction
to investigate or enquire into the alleged offences. While the question whether the
acts alleged against the petitioners amounted to cruelty within the meaning of Section
498A of the Indian Penal Code is one of fact to be probed into by the trial Court, the
complaint by Krishna Reddy, the father of the alleged victim set the criminal law in
motion and even if the alleged offence was mostly committed outside India within
the meaning of Section 188 of the Code of Criminal Procedure, on the allegations
made, certain events were claimed to have taken place at Hyderabad through
telephonic conversations between the petitioners and Krishna Reddy, through
personal meetings between Krishna Reddy and the 1st and 2nd petitioners, through
a memorandum of understanding, dated 11-05-2007 at Hyderabad, e-mails
received at Hyderabad and withdrawal of Rs.8,00,000/- within the jurisdiction of
the Courts at Hyderabad. Whether a part of the cause of action for prosecuting the
petitioners for the offences or domestic violence alleged arose at Hyderabad or
not will be a matter of conclusion at the trial and not before hand and hence, the
application of Section 179 or Section 188 of the Code of Criminal Procedure, 1973
and any consequential requirement of complying with any procedural safeguards
will depend upon the factual conclusions that will be arrived at during trial.
39. Thus, neither the domestic violence case nor the criminal case appear to be susceptible
to being quashed in exercise of the inherent powers of this Court under Section 482
of the Code of Criminal Procedure, which is a rarely exceptional remedy and without
expressing any opinion on the merits of the rival contentions, the criminal petitions
have to be negatived.
40. In the light of the above discussion, the question of non-maintainability of the
criminal petition for quashing the criminal case due to non-impleadment of Sri P.
Krishna Reddy, the father of the victim, who gave complaint to the police, needs no
further probe.
41. It should also be made clear that none of the observations made herein shall influence
the consideration of the domestic violence case or the criminal case on their own
merits by the trial Court and the entire discussion herein is purely with reference to
examining the sustainability of the request for quashing the proceedings in both the
cases.
42. Accordingly, both the criminal petitions are dismissed.
qqq
213
[2012] 190 DLT 647/ [2012] 0 Supreme(Del) 35289
High Court of Delhi
S. RAVINDRA BHAT & S.P. GARG Shambhu Prasad Singh

Versus
Manjari
CRL.M.C. 3083 OF 2011 & CRL.M.A. 10914 OF 2011
Decided on: 17-05-2012
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT : S.12
Judgment:
RAVINDRA BHAT,J.
1. This judgment answers a reference to this Division Bench, requ1nng resolution of
a conflict between the decision of two learned Single Judges of this Court on the
question whether a magistrate can act straightaway on a complaint made by an
aggrieved person, under the Protection of Woman from Domestic Violence Act,
2005 (hereafter “the Act). A learned Single Judge had considered and ruled upon
the scope and effect of different provisions in an earlier decision of this court.
Another learned Single Judge by order dated 03.05.2012 referred the present matter
to the Chief Justice for being placed before a Division Bench for consideration. In
these circumstances, the reference was assigned to this Court for its opinion. The
precise question which this Court is called upon to answer is whether calling for and
considering the report of the Protection Officer under the Act is mandatory before
the Court can issue notice to a Respondent in an application under Section 12 of the
Act.
2. The issue arose in this case, before the learned single judge in the context of a
challenge from the order dated 31st May, 2011 passed by the learned Metropolitan
Magistrate in complaint case No. 934/2003 titled as Manjari Vs. Shambhu Prasad
Singh. The magistrate (hereafter called nTrial Court”) issued notice to the Petitioner
on a complaint under Section 12 of the Protection of Women from Domestic Violence
Act, 2005 (in short •D.v. Acf’) without calling for a report from the Protection Officer;
the Petitioner’s challenge to that order was rejected by a the Learned Additional
Sessions Judge on 4th August, 2011 dismissing the appeal filed by the Petitioner. No
discussion of the factual matrix of the case is required since it is only the question of
law which has to be decided by this court.
3. Learned counsel for the petitioner contends that on an application u/s 12 of the D.V.
Act, no notice can be issued to the respondent without calling for and considering
the domestic incident report (DIR) from the Protection Officer. It is contended that
the ruling in Bhupender Singh Mehra & Anr. Vs. State of NCT of Delhi & Anr. 2010
(4) JCC 2939 has spelt out that such a procedure bind the magistrate. The relevant
portion of the said judgment is reproduced hereunder:
“Domestic Violence Act provides for obtaining domestic incident report. The domestic
incident report proforma is given in form 1 of the schedule 2 of the Domestic Violence
Rules. This proforma is in detailed analytical form where the details of each incident
of domestic violence are to be entered with date, time and place of violence and
person who caused domestic violence. The purpose is that all allegations made in
214
application must be specific and the Court should not exercise jurisdiction without
considering domestic incident report since it is necessary for the Court to know
before issuing any notice to respondent as to who was the respondent who caused
domestic violence and what was the nature of violence and when it was committed.”
4. Counsel for the Petitioner relies on the Proviso to section 12 of the D.V. Act. He cited
two judgments of the Madras High Court viz. Uma Narayan v. Mrs Priya Krishna
Prasad (Criminal Originial Petition No 9277 of 2008 decided on 01.08.2008) and
Murugan v. Kasimani (Cri.R.C. (MD) No. 1133 of 2008 decided on 19.08.2010).
Reference was also made to Rules 4, 5, 6, 8 and 9 of the Protection of Women from
Domestic Violence Rules, 2006 (in short “the Rules”).
5. On the other hand, counsel for the respondent contended that under Section 12
of the D.V. Act, the complainant herself has the right to apply to the Magistrate.
Furthermore, reliance is placed on Section 23 which permits passing of ex-parte
orders on the basis of an affidavit of the aggrieved person. It was urged that if
legislative intent was that the magistrate should first issue notice to the Protection
Officer, and then after securing the report of that officer, proceed to issue notice,
the Act would have been more forthright. It was argued that if the court were to
uphold the decision of the learned Single judge in Bhupender Singh Mehra, vital
provisions of the Act, such as Section 23 which enables the court to make ex-parte
orders, would be rendered infructuous and a dead letter. It was emphasized that
in the absence of a clear intendment, through express provision, the Court should
not fetter its discretion, as would inevitably happen, if the rule in Bhupender Singh
Mehra were to be followed. Counsel emphasized that the object of the enactment
was to provide speedy remedy to the victim of domestic violence, which included
protection orders. If the magistrate were to be constrained from issuing orders,
that are plainly permissible under the Act, on the basis of prima facie appreciation
of evidence, the remedy would be defeated, and the victim would be subjected to
further domestic violence either in the form of deprivation of a home, or subjected
to physical cruelty, or even deprived economic benefits, which rightfully belong to
her, as per definition of “domestic violence . The Court should therefore avoid such
an interpretation, and adopt one which is in harmony with the express provisions,
and furthers the intent of the enactment.
6. The respondent distinguished the ruling in Bhupender Singh Mehra from the
present case. It was contended that in the said case the DIR was necessary in order
to determine whether the respondent and the complainant were in a domestic
relationship. In that case, the father-in-law and two brothers-in-law were arrayed as
respondents giving a common address, and therefore, the observations in the said
judgment were purely contextual to the facts. Here, however, only the husband was
arrayed as respondent. Thus, the respondent contends that the ruling in Bhupender
Singh Mehra does not assist the case of the petitioners.
7. Learned counsel for the Respondent has placed reliance on the decisions reported
as Ajay Kant & Ors. v. Alka Sharma 2008 CrW 264 (MP HC) Rakesh Sachdeva & Ors. V.
State of Jharkhand & Anr 2011 CrW 158 (Jharkhand HC), Md. Basit v. State of Assam
(CrRev. P. No 175/2011) decided by Guahati High Court on 9th June 2011.
8. This Court has carefully considered the arguments of both the parties. Before
analysing the merits of the rival submissions, it is necessary to reproduce the relevant
provisions of the D.V. Act and the Rules.
215
“Section 2
(a) “aggrieved person” means any woman 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;
(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;
(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 the nature of
a marriage may also file a complaint against a relative of the husband or the male
partner.
(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 the aggrieved person
has any right, title or interest in the shared household.
9. Duties and functions of Protection Officers.-(1) It shall be the duty of the Protection
Officer- (b) to make a domestic incident report to the Magistrate, in such form and in
such manner as may be prescribed, upon receipt of a complaint of domestic violence
and forward copies thereof to the police officer in charge of the police station within
the local limits of whose jurisdiction domestic violence is alleged to have been
committed and to the service providers in that area;
“12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or
any other person on behalf of the aggrieved person may present an application to
the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take
Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of
an order for payment of compensation or damages without prejudice to the right of
such person to institute a suit for compensation or damages for the injuries caused
by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has
been passed by any court in favour of the aggrieved person, the amount, if any,
paid or payable in pursuance of the order made by the Magistrate under this Act
shall be set off against the amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908),
or any other law for the time being in force, be executable for the balance amount, if
any, left after such set off.
216
(3) Every application under sub-section (1) shall be in such form and contain such
particulars as may be prescribed or as nearly as possible thereto.
Section 17 - Right to reside in a shared household
(1) Notwithstanding anything contained in any other law for the time being in
force, every woman in a domestic relationship shall have the Right to reside
in the shared household, whether or not she has any right, title or beneficial
interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared
household or any part of it by the respondent save in accordance with the
procedure established by law.
Section 19 - Residence orders
(1) While disposing of an application under sub-section (1) of section 12, the
Magistrate may, on being satisfied that domestic violence has taken place, pass
a residence order-
(a) restraining the respondent from dispossessing or in any other manner
household, whether or not the respondent has a legal or equitable
interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any
portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared
(e) restraining the respondent from renouncing his rights in the shared
(f) directing the respondent to secure same level of alternate accommodation
Provided that no order under clause (b) shall be passed against any person who is a
woman.
(2) The Magistrate may impose any additional conditions or pass any other
direction which he may deem reasonably necessary to protect or to provide
for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or
without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter
VIII of the Code of Criminal Procedure, 1973(2 of 1974) and shall be dealt with
accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or subsection
(3), the court may also pass an order directing the officer in charge of the
nearest police station to give protection to the aggrieved person or to assist
her or the person making an application on her behalf in the implementation
of the order.
217
(6) While making an order under sub-section (1), the Magistrate may impose on the
respondent obligations relating to the discharge of rent and other payments,
having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose
jurisdiction the Magistrate has been approached to assist in the implementation
of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the
aggrieved person her stridhan or any other property or valuable security to
which she is entitled to.
23. Power to grant interim and ex parte orders.-(1) In any proceeding before him under
this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) 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,
he may grant an ex parte order on the basis of the affidavit in such fonn, as may be
prescribed, of the aggrieved person under section 18, section 19, section 20, section
21 or, as the case may be, section 22 against the respondent.”
The relevant provisions from the D.V. Rules are extracted below:
“5. Domestic incident reports.- (1) Upon receipt of a complaint of domestic violence,
the Protection Officer shall prepare a domestic incident report in Fonn 1 and submit
the same to the Magistrate and forward copies thereof to the police officer in charge
of the police station within the local limits of jurisdiction of which the domestic
violence alleged to have beem committed has taken place and to the service providers
in that area.
(2) Upon a request of any aggrieved person, a service provider may record a
domestic incident report in Form I and forward a copy thereof to the Magistrate
and the Protection Officer having jurisdiction in the area where the domestic
violence is alleged to have taken place.
6. Applications to the Magistrate.- (1) Every application of the aggrieved person
under section 12 shall be in fonn II or as nearly as possible thereto.
(2) An aggrieved person may seek the assistance of the Protection Officer in preparing
her application under sub-rule (1) and forwarding the same to the concerned
Magistrate.
16. Shelter to the aggrieved person.
(1) On a request being made by the aggrieved person, the Protection Officer or a
service provider may make a request under section 6 to the person in charge of a
shelter home in writing, clearly stating that the application is being made under
section 6.
(2) When a Protection Officer makes a request referred to in sub-rule (1), it shall be
accompanied by a copy of the domestic incident report registered, under section 9
or under section 10:
Provided that shelter home shall not refuse shelter to an aggrieved person under
the Act, for her not having lodged a domestic incident report, prior to the making of
request for shelter in the shelter home.
218
17. Medical Facility to the aggrieved person.- (1) The aggrieved person or the
Protection Officer or the service provider may make a request under section 7 to a
person in charge of a medical facility in writing, clearly stating that the application is
being made under section 7.
(2) When a Protection Officer makes such a request, it shall be accompanied by a
copy of the domestic incident report:
Provided that the medical facility shall not refuse medical assistance to an aggrieved
person under the Act, for her not having lodged a domestic incident report, prior to
making a request for medical assistance or examination to the medical facility.”
9. The basic objective in enacting the Act is to secure various rights to a woman living
in matrimony or in a relationship akin to matrimony, or any domestic relationship.
Domestic violence, is, per se, not a criminal offence but is defined extensively
and comprehensively to include various conditions. The woman exposed to such
domestic violence is given the right to move to Court for any of the reliefs outlined in
Section 12 through either a comprehensive proceeding, claiming maintenance, right
to residence, compensation etc. or even move to Court seized of any other pending
proceeding, such as divorce and maintenance etc. (Section
26). Section 17 has, for the first time, enacted a right to residence in favor of such
women. The Act being a beneficial one, the Court should adopt a construction to
its provisions which advances the parliamentary intention rather than confining it.
If the latter course is adopted the result would be to defeat the object of the law.
As noticed earlier, domestic violence is per se not an offence but its incidence or
occurrence enables a woman to approach the Court for more than one relief. The
Court is empowered to grant ex-parte relief and ensure its compliance, including by
directing the police authorities to implement the order, particularly those relating
to residence etc. If such an order is violated by the respondent (a term defined in
the widest possible terms, to include female relatives of the husband or the male
partner etc), such action would constitute a punishable offence, which can be tried
in a summary manner under Section 31 of the Act.
10. In Ajay Kant (supra) the Madhya Pradesh High Court held, turning down a
contention identical to that of the respondent (in this case) that:
“On perusal of the aforementioned proviso appended to the prov1s1on, it appears
that before passing any order on the application, it is obligatory on a Magistrate to
take into consideration any report received by him from the Protection Officer or
the service provider. Neither it is obligatory for a Magistrate to call such report nor
it is necessary that before issuance of notice to the petitioners it was obligatory for
a Magistrate to consider the report. The words before passing any order provide
that any final order on the application and not merely issuance of notice to the
respondent/the petitioners herein. The words any report also mention that a report,
if any, received by a Magistrate shall be considered. Thus, at this stage if the report
has not been called or has not been considered, it cannot be a ground or quashing
the proceeding.”
A similar view was taken by the Jharkhand High Court in Rakesh Sachdeva (supra):
“12. It would thus appear that the proviso to Section 12 would impose that before
passing any order on an application of the aggrieved person, the Magistrate shall take
219
Officer. The order contemplated in the proviso relates to the final orders, which the
Magistrate, may pass under Section 18 of the Act. The Protection orders, which the
Magistrate may pass under Section 18 of the Act, is only on being prima facie satisfied
that the domestic violence has taken place or is likely to take place. The insistence
to take into consideration the domestic incident report of the Protection Officer
would therefore, not apply at the stage of initiation of the enquiry under Section 12
of the Act. The contention of the petitioners that without considering the domestic
incident report, the very initiation of the enquiry is bad, appears to be misconceived
and therefore, not tenable.”
11. After examining both the views, the Guwahati High Court in Md. Basil (supra)
expressed a slightly different view:
“10. I partly agree and partly disagree with the views taken by the Hon’ble Madhya
Pradesh High Court and Jharkhand High Court. In my considered opinion, Section
12 does not deal with passing of final orders. Final orders are passed under Sections
18,19, 20, 21 and 22 of the Act only. Sec. 12 is akin to Sec 200 of the Criminal
Procedure Code, 1973. Section 12 only contemplates as to who can file a complaint,
what reliefs can be sought for, what should be the contents of the complaint and
how the complaint can be examined thereafter. If these preconditions are satisfied
the court can take cognizance of the complaint, subject to making out a prima facie
case on facts. Unlike Sec. 200 CrPC there is no requirement of recording preliminary
statement of the aggrieved person, filing a complaint under Sec. 12 of the DV Act, for
the purpose of taking cognizance thereof.
11. Under Section 12(1) of the DV Act, an application/complainant can be filed
before a Magistrate either by an aggrieved person or by a Protection Officer or any
other person on behalf of the aggrieved person. In this way, Section 12(1) does
not contemplate that such an application should invariably be accompanied by a
report from a Protection Officer. Proviso to Section 12(1) is in the nature of a rider,
which mandates that the Magistrate shall consider any domestic incident report, if
received by him either from a Protection Officer or Service Provider. I have already
mentioned earlier that an application under Section 12 can be independently
filed by an aggrieved person, which may not be accompanied by any report from a
Protection Officer. However, if any report from a Protection Officer is available before
the Magistrate that shall have to be taken into consideration, but, the law does not
impose a precondition for the Magistrate to call for a report from the Protection
Officer. On this point I differ with the view taken by Hon’ble M.P. High Court, wherein
it has been held that it is not obligatory for the Magistrate to consider the report.
With the same analogy, I also differ with the view taken by the Hon’ble Jharkhand
High Court wherein, it has been held that the insistence to take into consideration
the domestic incident report of the Protection Officer would therefore, not apply at
the stage of initiation of the enquiry under Section 12 of the Acf’.
12. For aforesaid reasoning, I approve the view taken by the learned Sessions Judge
that it is not obligatory for a Magistrate either to call for a report from a Protection
Officer or a Service Provider at the stage of taking cognizance of the complaint.
However, if any such report is available before the Magistrate, the same should be
taken into consideration.”
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12. This court notices that Section 23 empowers the Magistrate to pass such ex-
parte interim orders as he may deem just and proper, based only on the affidavit of
the aggrieved person. Nowhere does this provision express or imply by necessary
intendment that the consideration of the DIR is obligatory. Since an ex-parte interim
order may be granted immediately upon institution of the complaint, it is likely
that the Protection officer’s DIR may not be prepared by then. Thus, the Magistrate
is definitely empowered to exercise this power, and pass interim order(s) against
the concerned respondent. If this can be done without considering the DIR, then
certainly notice to the respondent must also be allowed to be served without first
considering the DIR.
13. It is noteworthy that Section 12(1) does not mandate that an application seeking
relief under the Act be accompanied with the DIR or even that it should be moved
by a Protection officer. Even Rule 6 which stipulates the form and manner of making
an application to the Magistrate does not require that the DIR must accompany an
application for relief made under Section 12. It is only the proviso to section 12(1)
which mandates that the Magistrate shall consider the DIR “received by him from
the Protection Officer or the service provider”. No obligation to call for the DIR has
been imposed upon the Magistrate. The plenitude of the power under Section 12,
to pass appropriate orders, upon the application by •an aggrieved person” i.e. the
victim of domestic violence is thus emphasized. A unique feature which the Court
has to keep in mind is that the opening phrase in Section 12 are wide (“An aggrieved
person or a Protection Officer or any other person on behalf of the aggrieved person
may present an application to the Magistrate seeking one or more reliefs under this
Act...” If Parliament had intended that a report of the Protection Officer is a pre-
condition for the magistrate to act upon the complaint of an aggrieved person, or
someone acting on her behalf, it would have expressed that intention more clearly.
The Court instead, is circuitously asked to interpret that provision, in the light of a
Proviso, which is contextual, rather than compulsive. In this context, it was held by
the Supreme Court, in Tribhovandas Haribhai Tamboli vs Gujarat Revenue Tribunal
And Ors:AIR 1991 SC 1538 that:
“It is a cardinal rule of interpretation that a proviso to a particular provision of a
statute only embraces the filed, which is covered by the main provision. It carves out
an exception to the main provision to which it has been enacted by the proviso and
to no other. The proper function of a proviso is to except and deal with a case which
would otherwise fall within the general language of the main enactment, and its
effect is to confine to that case. Where the language of the main enactment is explicit
and unambiguous, the proviso can have no repercussion on the interpretation of the
main enactment, so as to exclude from it, by implication what clearly falls within its
express terms. The scope of the proviso, therefore, it to carve out an exception to the
main enactment and it excludes something which otherwise would have been within
the rule. It has to operate in the same field and it the language of the main enactment
is clear, the proviso cannot be tom apart from the main enactment nor can it be used
to nullify by implication what the enactment clearly says nor set at naught the real
object of the main enactment, unless the words of the proviso are such that it is its
necessary effect.”
221
This rule of interpretation was again applied in Romesh Kumar Sharma Versus Union
of India 2006 (6) SCC 512, where it was held that:
‘’The normal function of a proviso is to except something out of the enactment or
to qualify something enacted therein which but for the proviso would be within the
purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880
(5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v.
Subhash Chandra Yograj Sinha (AIR 1961 sc 1596) and Calcutta Tramways Co. Ltd.
v. Corporation of Calcutta (AIR 1965 sc 1728); when one finds a proviso to a section
the natural presumption is that, but for the proviso, the enacting part of the section
would have included the subject matter of the proviso. The proper function of a
proviso is to except and to deal with a case which would otherwise fall within the
general language of the main enactment and its effect is confined to that case:
14. The proviso to Section 12 obliges the court to, “before passing any order on such
application.....take into consideration any domestic incident report received by him
from the Protection Officer or the service provider.” The plenitude of the jurisdiction
conferred by Section 12 is in no way affected by the proviso; all that it mandates is
that before any order is made on an application (under Section 12) the magistrate
Mshall” take into consideration “any’’ report made by the Protection Officer. It is one
thing to say that Parliamentary mandate to the court is to take into consideration, in
every case, a protection Officers’ report, as a precondition for exercise of jurisdiction
- as the petitioner contends- and entirely another to say that if “any” such report is
available, it shall be considered. This clear cut difference, in our opinion was lost
sight of by the Single Judge in Bhupender Singh Mehra’s case. If Parliament had
indeed mandated that in every case the Court was obliged to call for a Protection
Officer’s report, and thereafter proceed with the complaint, the structure of Section
12 would have been entirely different. Such intention would have been expressed in
more definitive, or imperative terms. In this context, this Court is also unpersuaded
by the Petitioner’s argument that Rule 6 and the form appended to the Rules have to
be read into Section 12, to discern the precondition urged. This Court sees no need
to do so; it would result in artificially curtailing what is otherwise a wide power.
15. In this context, this Court notices that the difference in the reasoning of the
Jharkhand and M.P. High Court, on one hand, and the Guwahati High Court, on the
other, is that while the former two held that the orders referred in the proviso to
Section 12(1) refer to only the final orders that may be passed under Sections 19-22
of the Act, the latter view declines to hold so. The Guahati High Court, in addition, held
that if the DIR is available, the same must be taken into consideration before passing
an order. This Court agree with the reasoning of the Guwahati High Court. In the
absence of any express or implied mention of any limitation as to the kinds of orders
to which the Proviso to Section 12(1) would apply, it shall be equally applicable to
interim orders as well as final orders. Thus, in all cases where the magistrate is in
receipt of the DIR, he must take the same into consideration. This applies even at
the stage of serving notice to the respondent. However, where the DIR has not been
prepared, or has not been submitted to the Magistrate, he is under no obligation to
call for the same for consideration as a precondition to exercising his power, and
making such orders as the justice and the facts of the case may warrant.
16. The obligation to submit a DIR is imposed only upon the Protection Officers
under Section 9 of the D.V. Act and upon the Service providers under Section 10
222
of the Act. The proviso to Rule 16(2) of the D.V. Rules, provides that the omission
to file the DIR by the Protection Officer or the Service provider, as the case may be,
therefore, does not deprive the aggrieved person from getting shelter at the shelter
home. Similarly, the proviso to Rule 17(2) stipulates that medical assistance from
the medical facility shall not be denied merely because the DIR has not been filed.
These provisions - contemplated under the Rules imply that Parliamentary intent
is not to make provision of relief under the Act subject to the filing of the DIR. The
initiation of proceedings by serving a notice to the respondent can still be done, even
if no DIR has yet been submitted to the Magistrate.
17. The other aspect is that the plenitude of Section 23 - which empowers the Court
to make wide ranging ex-parte orders, and Section 25 (2) -which permits the Court
to devise its own procedure, having regard to the exigencies of the case, are uniquely
suited mechanisms intended by Parliament to empower the Court to take into
consideration unique situations which might confront it, whenever relief is applied
for by an aggrieved person, or on her behalf.
18. So far as the authorities cited by the petitioner, are concerned, the observation in
Bhupinder Singh Mehra (supra) was made without properly analyzing the provisions
of the Act and the Rules, and is as such incorrect. The said view is therefore overruled.
Moreover, the facts of the case can be distinguished as firstly, therein the report had
already been submitted, but was still not considered, and secondly, in that case
there was doubt whether the named respondents were in a domestic relationship
with the aggrieved person therein. The Uma Narayan case (supra) decided by the
Madras High Court does not concern the issue at hand, and is not of any assistance
to the petitioner. In Murugan (supra), the Madurai Bench of the Madras High Court
observed as folloiNS:
“10. It is incumbent upon the trial Court to go through all the materials available
before it and to come out with a considered opinion. Section 23 of the Act does not
apply to the present case since the order challenged is not an interim order but it is
a final order. A scheme has been formulated under Section 23 of the Act to provide
interim relief to the aggrieved person. As far as Section 23 of the Act is concerned,
it deals with the relief available to the aggrieved persons in other suits and legal
proceedings. When the Judicial Magistrate Court is dealing with any application filed
b the aggrieved persons under sections 12(1) of the Act, it shall necessarily follow
and act in accordance with the Proviso viz., considering the Domestic Incident Report
from the Protection Officer or the service provider and in default, any order passed
by the Court would get vitiated.”
The observations were in the context of the Magistrate appointing a Protection
Officer, who duly filed a DIR. Thereafter the Magistrate passed his order without
considering the same. In such circumstances, the case was remitted back with the
direction that all materials available be considered. The import of the Madurai Bench
of the Madras High Court decision does not extend beyond the true effect of Proviso
to Section 12 (1) since the Court was only considering a case where the report was
received by the Magistrate, but not considered. That decision does not help the case
of the petitioner. The other provisions of the Act and the Rules referred to by the
petitioner also offer no support to his case.
19. To conclude we answer the question referred to the Court in the negative;
a Magistrate, when Petitioned under Section 12 (1) is not obliged to call for and
223
consider the DIR before issuing notice to the respondent. However, if the DIR has
already been submitted, that should be considered, in view of the proviso to Section
12 (1).
20. In view of the fact that the Court has taken a view which results affirming the
judgment of the Additional Sessions Judge as well as the concerned Metropolitan
Magistrate (who had issued notice under Section 12 without calling for a report
from the Protection Officer, and none was on the record) the petition is bereft of
merit and it is therefore dismissed.
qqq
224
COMPILATIONS OF CASE-LAWS ON THE PROTECTION

OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
I) Women as Respondents
1) Sandhya Manoj Wankhade and Ors v. Manoj Bhimrao Wankhade and ors,
Supreme Court of India [ MANU/SC/0081/2011]
II) Domestic Relationship:
A) Woman who has been in the past in the domestic relationship with the
Respondent would be entitled to invoke the provisions of the PWDVA
1) Maroti s/o Dewaji Lande V. Sau Gangubai w/o Maroti Lande and
Prashant s/o Maruti Lande, Bombay High Court [Criminal Writ petition
No. 542/2010 , MANU/MH/1763/2011]
2) Karim Khan v. State of Maharashtra through PSO and Nahid Akhtar,
Bombay High Court [ MANU/MH/0990/2011]
B) PWDVA applicable to the Divorced women:
1) Bharti Naik V. Ravi Ramnath Harlarnkar and Anr , Bombay High court [III
(2011) DMC 747 2010]
C) Relationship in the nature of marriage:
a. Women who are in relationship of cohabitation or live-in-relationshis:
1) D. Velusamy V. P. Tachaimmal, Supreme Court of India [MANU/
SC/0872/2010 ]
2) Chanmuniya v. Chanmuniya Virendra Kumar Singh Kushwala
and Anr., Supreme Court, [2011 (1) ALD (Cri) 370, MANU/
SC/0807/2010]
b. PWDVA applicable to women in annulled marriage:
1) T.K. Surendran P. Najima Bindu & Ors, Kerala High Court, [ MANU/
KE/0682/2012]
c. Women in marriages which are void or voidable in law, where all other
elements o marriage exists – Second wife have been held to be entitled to
maintenance under section 18 of HAMA
1) Narinder Pal Kaur Chawla V. Manjeet Singh Chawla , Delhi High
Court [ AIR 2008 Delhi 7]
2) Suresh Khullar V. Vijay Kumar Khullar, Delhi High Court [ AIR 2008
Delhi 1, MANU/DE/8505/2007]
3) Sau Manda R. Thaore, w/o Sh. Ramaji Ghanshyam Thaore v. Sh.
Ramaji Ghanshyam Thaore, Bombay High Court [ Criminal Revision
Application No. 317/2006, MANU/MH/0427/2010]
III) Shared household:
1) V. D. Bhanot v. Savita Bhanot, Supreme Court in Special Leave Petition (Crl) No.
3916 of 2010.
2) SR Batra v. Taruna Batra, Supreme Court, [MANU/SC/007/2007]
225
IIIA) Right to reside in the shared household
A) Where the property is in the name of the husband and the in-laws, the wife has
a right to reside
1) Jyotsana Sharda v. Gaurav Sharda, Delhi High Court [ Criminal Revision
petition No. 132 and 133/ 2009, MANU/DE/3520/2009]
B) Where the property was owned by the Husband but has subsequently been
transferred in the name of the in-laws, with intention to deny the wife’s rights,
the women has a right to reside in the shared household.
1) P. Babu Venkatesh and Ors v. Rani, Madras High Court, [ MANU/
TN/0612/2008]
C) Where the husband has a right, title or inetrest in te property for the purpose
of section 17 of PWDVA is shared household and hence the aggrieved person
has a right to reside in the household
1) Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, Bombay High Court
[ MANU/MH/1295/2008]
D) Eveneet Singh v. Prashant Choudhury and Kavita Choudhury v. Eveneet Singh
[MANU/DE/3497/2010]
IV) Residence Orders:
1) Vandana v. T. Srikanth Krishnamachari and Anr, Madras High Court [(2007) 6
MLJ 205 (Mad)
2) Ishpal Singh Kahai V. Mrs. Ramanjeet Kahai, Bombay High Court [ MANU/
MH/0385/2011]
3) YamaVs. Ankit Manubhai Patel, Gujarat High Court [ MANU/GJ/0546/2014]
V) Monetray relief
A) Sukrit Verma and Anr v. State of Rajasthan, Rajasthan High Court (Jaipur Bench)
[ MANU/RH/0337/2011
Om Prakash v. State Rajasthan, Rajasthan High Court (Jaipur Bench) [ MANU/
RH/0324/2011]
B) Payment of maintenance
1) Rajesh Kurre V. Safurabai & others, Chattisgarh High Court at Bilaspur in
Criminal Misc Petition No. 274 of 2008
C) Quantum of maintenance
1) Jasbir Kaur Sehgal v Dist. Judge Dehradun [(1997) 7 SCC 7, MANU/
SC/0835/1997]
D) Maintenance can be granted irrespective of whether she has separate income
of her own or not.
1) Anup Avinash Varadpande v. Anusha Anup Varadpande, Bombay High
Court, [ MANU/MH/0042/2010]
E) Maintenance can be granted irrespective of whether the aggrieved person is
currently living with the husband or not.
1) Om Prakash v. State of Rajasthan & Anr [MANU/RH/0324/2011]
226
VI) Domestic Incident report is not mandatory:
1) Shambhu Prasad Singh v. Manjari, Delhi High Court [ MANU/DE/0899/2012 ]
2) Nand Kishor v. Kavita and Anr, [ MANU/MH/0957/2009]
VII) Application under PWDVA
1) Milan Kumar Singh & Anr V State of Uttar Pradesh,2007 Cri LJ 4742 [ MANU/
UP/0827/2007]
VIII) Ex-parte ad interim orders:
A) Ex-parte ad interim orders on the basis of affidavit
1) Preceline George @ Antony Preceline v. State of Kerala & ors Kerala High
Court at Ernakulum in WP (C ) No. 30948 of 2009 (Q) .
2) Sri Sujoy Kumar Sanyal V. Smt Shakuntala Sanyal (Haldar) and Anr. ,
Calcutta High Court , (MANU/WB/0597/2010)
IX) Direction to the Police to implement order
1) P. Babu Venkatesh and Ors V. Rani, Madras High Court, [ MANU/TN/0612/2008]
X) Breach u/s 31 of PWDVA
Complaint u/s 31 shall be tried by same magistrate who passed the order:
1) Mrs. Pramodini Vijay Fernandes V. Vijay Fernandes, Bombay High Court, Writ
Petition No. 5252 of 2009
qqq
227
228

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FOR PRIVATE CIRCULATION ONLY

Date : 18th January, 2015 (Sunday)

STANDARD PRACTICE DIRECTIONS FOR THE

Violence against women is a manifestation of historically unequal power relations

72 Section 156, CrPC

Introducing the Protection Officer

How to Interact with the Aggrieved Person

How to Record a Domestic Incident Report

1 What is a Domestic Incident Report? 67

The definition of respondent provided in Section 2(q) of the PWDVA includes:

Illustrations of different forms of violence

• Not providing money for

How to File an Application in Court

(b) Protection Officer

(c) Any other person on behalf of the aggrieved person

28 28 Section 125 CrPC requires a person to pay monthly maintenance if:

Place: Complainant/Aggrieved person through

Duties of the Protection Officer During

Seal of the Court Signature

33 See also Section 9(1)(h)

Procedure to be adopted by the Protection officer

1 Manual for Protection officers under PWDVA, Lawyers Collective

Concern for the Dead, Condemnation for the Living

SUPREME COURT OF INDIA

SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA, JJ.

SUPREME COURT OF INDIA

Markandey Katju and T. S. Thakur, JJ.

SUPREME COURT OF INDIA

P. SATHASIVAM & RANJAN GOGOI, JJ.

DEOKI PANJHIYARA- Appellant

Supreme Court of India

K.S. RADHAKRISHNAN & PINAKI CHANDRA GHOSE, JJ.

Indra Sarma - Appellant

High Court of Delhi

THE HONOURABLE MR. JUSTICES. RAVINDRA BHAT &

Mrs. Preeti Satija

High Court of Delhi

High Court of Delhi

M.L. MEHTA Sunil Madan

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Rakesh Sachdeva - Petitioners

IN THE HIGH COURT OF JHARKHAND AT RANCHI

HIGH COURT OF ANDHRA PRADESH

A. Ashok Vardhan Reddy & Others

High Court of Delhi

S. RAVINDRA BHAT & S.P. GARG Shambhu Prasad Singh

COMPILATIONS OF CASE-LAWS ON THE PROTECTION

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