Protection of Women from Domestic Violence | Know your rights

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  • Post published:January 27, 2021
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PART – I: Protection of Women from Domestic Violence Act, 2005

From basic to deeper understanding of the rights provided under the Act.

Scheme of the Act:
Section 2(a) defines “aggrieved person” which 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 “domestic relationship” which 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 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

(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 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. 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.

Section 8(1) empowers the State Government to appoint such number of Protection Officers in each district as it may consider necessary and also to notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under the 2005 Act. The provision, as is manifest, is mandatory and the State Government is under the legal obligation to appoint such Protection Officers. 

Section 12 deals with application to Magistrate. Sub-sections (1) and (2) being relevant are reproduced below:-

Section 12. Application to Magistrate: –

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 into consideration any domestic incident report received by him from the Protection Officer or the service provider.

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.

Section 18 deals with passing of protection orders by the Magistrate. Section 19 deals with the residence orders and Section 20 deals with monetary reliefs. Section 28 deals with procedure and stipulates that all proceedings under Sections 121819202122 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Section 36 lays down that the provisions of the 2005 Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

Limitation period for filing complaint under Section 12 of the DV Act

Krishna Bhatacharjee V. Sarathi Choudhury and Anr 2016 (2) SCC 705

An aggrieved person is permitted to present an application to the Magistrate seeking one or more reliefs under this Act and the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer also. Section 12 of the Domestic Violence Act is enabling provision to file an application, whereas Sections 18 to 22 of the Domestic Violence Act provide for rights of the aggrieved person to seek different reliefs like protection, residence, monetary relief, custody of minor and compensation. No limitation has been prescribed for seeking any such relief. Penal provisions under Section 31 of the Domestic Violence Act would get attracted on a breach of a protection order.

It is only in a situation when there is a breach of any protection order on an application under 4 of 5 Section 12 or on any of the reliefs under Sections 18 to 22 of the Domestic Violence Act, then and then only, an application under Section 31 of the Domestic Violence Act is to be filed within one year from the date of such breach and not thereafter. Therefore, the court is of the opinion that there is no limitation prescribed to institute a claim seeking relief under Sections 17 to 22 of the Domestic Violence Act.

The Abovetitled case has been referred to by the Punjab and Haryana Court at Chandigarh in a case titled Alok Vs Sunita wherein the same question had arisen.

Shared Household and its connected issues:

Section 2(s) defines Shared household: –

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.

Section 17: Right to reside in a shared household: –

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.

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 17 provides right to an aggrieved person to claim right to reside in a Share Household and thus it is important to understand the definition in light of the judgment of the Hon’ble Supreme Court.

Interpretation of definition of Shared Household by the Supreme Court in a case titled S.R. Batra vs Taruna Batra:

It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in the all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

It is well settled that any interpretation which leads to absurdity should not be accepted.

Learned counsel for the respondent Smt Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives.

As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a `shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a `shared household’.

However, it may be noted, that the above interpretation of the definition of a Shared Household was not accepted by the Supreme Court in a case titled SATISH CHANDER AHUJA VERSUS SNEHA AHUJA 
Relevant para of the judgment with regard to the definition of Shared Household is as under;

Para 64. In paragraph 29 of the judgment, this Court in S.R.Batra Vs. Taruna Batra (supra) held that wife is only entitled to claim a right to residence in a  shared household and a  shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a  member.   The definition of a shared household as noticed in Section 2(s) does not indicate that a shared household shall be one that belongs to or taken on rent by the husband.  We have noticed the definition of “respondent” under the Act.   The respondent in a proceeding under the Domestic Violence Act can be any relative of the husband. In the event, the shared household belongs to any relative of the husband with whom in  a  domestic relationship the woman has lived,  the conditions mentioned  in  Section  2(s)  are satisfied  and  the  said  house  will  become  a  shared household. 

We are of the view that this court in S.R.Batra  Vs.  Taruna  Batra  (supra) although  noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is  no  such  requirement  that  the  house  may  be  owned singly or jointly by the husband or taken on rent by the husband.

The observation of this Court in S.R. Batra Vs. Taruna Batra (supra) that definition of shared household in Section 2(s) is not very happily worded and it has to be interpreted, which is sensible and does not lead to chaos in the society also does not commend us.   The definition of shared household is clear and exhaustive definition as observed by us.  The object and purpose of the Act was to grant the aggrieved person a right of residence in the shared household. 

The  interpretation  which  is  put  by  this Court in S.R. Batra Vs. Taruna Batra(supra) if accepted shall clearly frustrate the object and purpose of the Act.   We, thus, are of the opinion that the interpretation of definition of shared household as put by this Court in S.R. Batra Vs. Taruna Batra (supra) is not correct interpretation and the said judgment does not lay down the correct law.

(Note: The judgment of the Supreme Court in case titled SATISH CHANDER AHUJA VERSUS SNEHA AHUJA has considered various provisions of the Act, 2005 and for which it is recommended to read the full judgment once for better understanding.)

Objections that are usually taken against the Complainant:

Deed of disinheritance

Most of the time, parents, in order to be on the safer side, execute a deed of disinheritance against their sons in order to save themselves in case their daughter-in-law approached the court and seeks her right to reside in the shared household provided under the Act. The exercise can be proved fruitful or not, depends upon the facts and circumstances of each case.

However, a similar situation was arisen in a petition filed before the J&K High Court at Jammu wherein the Court while dismissing the petition held that the ground of the petitioner regarding the execution of deed of disinheritance against respondents, is not tenable because it is a fact to be decided as to whether the deed has been executed with bona fide intention or it has been executed only to deprive the respondent No.1 from his legitimate right. Mohal Lal Raina vs Indu Raina and Anr. CRMC No.273/2015 IA No.1/2015 Read the full Judgment here.

The quest is to touch each and every provision of this act in light of the judgments.
To be continued…