Violence with Domestic Violence Act 2005

Hari Kishan*

The domestic violence Act came in Statute book on 13 Sept 2005 with a stated objective 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.

Before this Act, the only remedy available in Indian law was criminal liability of accused

husband or his family members under Sec 498 A of Indian Penal Code 1860. Under referred

law of IPC, husband or other members of husband family for any act of domestic violence

against woman could be prosecuted. But other than criminal prosecution there was no

alternative civil remedy to aggrieved woman except the paltry compensation under Sec 357

Crpc of1973 after a long procedure. That was the reason that Domestic Violence Act came in

force as civil remedy to women affected by domestic violence.

But unfortunately, a few of definitions under this Act are so poorly drafted that it leads to

conflicts among jurist while interpreting the real objective of statute. One of such definition is

“ Shared House hold” under section 2(s) of the Act.

(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.

So if literal interpretation is applied, which is the thumb rule of interpretation, then this

definition can accommodate any kind of house in which the husband and wife( including such

couple which are in relation of marriage like relation) lives or lived at any point of time.

But this definition is restricted by the word ‘domestic relationship’, meaning thereby, the

husband and wife should be or should have lived in domestic relation in the shared house.

Now sec 2(f) of this Act defines domestic relation which read as:

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.

From the definition under sec 2(f), it is very clear that two persons are said to live or have

lived in domestic relation if they are related with each other by way of:

(i) Con sanguinity, i.e. by blood like sister, brother etc.

(ii) Marriage

(iii) Relation like nature of marriage (Very vague term)

(iv) Adoption
(v) Family members living in joint family.

From the definition mentioned above, it is clear that the respondent and aggrieved person

should be related to each other by any of the above mentioned relation to establish domestic

relationship.

The essential pre condition to fall within the definition of share house hold under sec 2(s) is

that the respondent and aggrieved person must be in any of relationship defined in sec 2(f) of

domestic violence Act.

Now, again coming back on definition of Share house hold, after reading in conjunction with

sec 2(f) (Domestic relationship) following necessary ingredients follows:

1) The definition starts with ‘Means’, which indicate that definition under 2(s) is complete and

exhaustive, but it has two ‘includes’ inside it which further enhance the scope of this

definition.

2) The term house hold is not further defined. What is house hold? Does it include informal

houses like in case of nomadic people or it is to be construed strictly only to well built kucha

or pucca house. Is it necessary to have some sort of building? For example, if a wife is victim

of domestic violence of a nomadic husband and she wants residence order against husband

under sec 19 of DV Act , then what remedies she have? So the definition is lacking to

accommodate all household. The word ‘place of living’ could have been better option to make

the definition more inclusive.

3) The one more condition for any aggrieved person to fall under sec 2(s) is that she should

have been living or has lived with respondent at any stage. ‘At any stage’ is again very loose

term. If it is to be construed in stricter sense then word ‘Any’ means any time throughout the

life in past and present after aggrieved person came in domestic relation with respondent. Now

the time for which aggrieved person stayed in shared house hold is not defined. Is one day is

sufficient or some more longer and fixed time period is required? This was again not defined

by legislature and was left open to be decided by judiciary.

Now, it is relevant here to discuss that it is essential to define the word ‘ shared household’

because of the fact that the further procedures and orders under this Act ( eg. residence order

under Sec 17 of Act) can only be issued once the basic ingredients of mischief are well defined

or settled.

Honourable Supreme Court found various occasions to interpret the term ‘shared household’

and to what extent an aggrieved person can claim in share household.

In the case of S.R. Batra VsTaruna Batra 1 the Supreme Court with reference to definition

of shared household under Section 2(s) of the Domestic Violence Act stated that the

definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and

appears to be the result of clumsy drafting requires to be interpreted in a sensible manner.

The Court held that under Section 17(1) of the Act 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. In the case, the property in question neither belonged to the
husband nor was it taken on rent by him nor was it a joint family property of which the

husband was a member. It was the exclusive property of mother of husband and not a shared

household.

Court categorically denied that a house acquired and owned by mother under the

circumstances mentioned herein before cannot be a shared household under DV Act 2005 and

aggrieved person cannot claim residence order in such property of her mother in law.

Further in the case of GA Ferris Vs Svetlana Alexandrovna2, Court held that property in

question which is exclusively in the name of mother in law is her absolute property. Such

house cannot be claimed by petitioner wife as shared household. Wife is only entitle to claim

right to residence in shared household and shared household would mean only the house

belonging to or taken on rent by the husband or house which

belongs to joint family of which husband is a member.

Going a step further, in 2010 Delhi High Court in the case of Vijay Verma Vs St (NCT

Delhi) 3, ruled that casual visit of a daughter in law to the house of father in law will not

amount to living or live together in a shared household for the purpose of domestic relation.

Only the violence committed by a person while living in the shared household can constitute

Domestic Violence.

Court further held that where a male or a female attains self sufficiency after education

or otherwise and takes up a job and lives in some other city or country, enjoys life there,

settles home there, he cannot be said to have domestic relationship with the persons whom he
 left behind.

In the case of Anukriti Dubey Vs Partha Kansabanik and anr.4, the issue before Delhi

High Court was whether a husband and wife living in a rented house will amount to a shared

household in domestic relation when husband left house after expiry of tenancy. Court held

that house does not remained shared household. Wife not entitled to live in the house and

landlord entitled to evict her. Further, domestic relation would not exist between persons

who are not related by consanguinity marriage or through relationship in nature of marriage

adoption or are not family members living together as joint family. A deserted wife in

occupation tenanted premises cannot be placed in a position which is different from her

husband if he had contested suit for eviction.

Status of live -in Relationship in Light of Domestic Violence Act 2005.

Under section 2(f) of domestic violence Act, domestic relationship includes relation

between aggrieved person and respondent ‘through a relationship in the nature of

marriage’’, is technically obscure. In the society like India, where marriage among Hindu

is sacrament and among Muslim is a kind of contract, existence of new kind of relationship

which is purely not of marriage is surprising. But probably, the legislative policy behind

insertion of this kind of relationship is to cover all women living with respondent in any

short term or long term relation. Law is not static because social norms and standards are

not static.

The evolving Indian society has borrowed the concept of live in relationship from western
world. Indian jurisprudence has recognized this kind of relationship and as an effect the

legislation was forced to recognize such relationship.

In the case of D. Veluswamy v. D. Patchaiammal5, Supreme Court verdict, a wider meaning

to an “aggrieved person” under Section 2(a) of the Domestic Violence Act was conferred by

the Supreme Court, wherein the Court enumerated five ingredients of a live in relationship as

follows:

1. Both the parties must behave as husband and wife and are recognized as husband and

wife in front of society

2. They must be of a valid legal age of marriage

3. They should qualify to enter into marriage eg. None of the partner should have a

spouse living at the time of entering into relationship.

4. They must have voluntarily cohabited for a significant period of time

5. They must have lived together in a shared household

The Supreme Court also observed that not all live-in-relationships will amount to a

relationship in the nature of marriage to get the benefit of Domestic Violence Act. To get

such benefit the conditions mentioned above shall be fulfilled and this has to be proved by

evidence.
Status of a Keep- The Court in the case further stated that if a man has a ‘keep’ whom he

maintains financially and uses mainly for sexual purpose and/or a servant it would not be a

relationship in the nature of marriage.

In this case, the Court also referred to the term “palimony” which means grant of

maintenance to a woman who has lived for a substantial period of time with a man without

marrying and is then deserted by him.

In the case of Lalita Toppo v. State of Jharkhand & anr. 6, the Supreme Court has

categorically held that maintenance can be claimed under the provisions of the Protection of

Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is

not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125

of Code of Criminal Procedure.

The Bench explained that the provisions contained in Section 3(a) of the Domestic Violence

Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as

domestic violence. The Court further opined that under the provisions of the Domestic

Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief

than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.

Conclusion: The objective with which the Act was enacted, by and large is successful on all

parameters. But the loosely drafted Act always put a burden on already burdened judiciary by

sparing time and resources to interpret those parts which the legislation should have been. The
definition of share household has been restricted to certain limits and each and every

household cannot be shared household.

*Author is Law Graduate passed from Faculty of Law, University of Delhi.

Citation:

1. 2007 (1) RCR (Crl) 403 (SC)

2. 2015 (1)DMC 408 (KAR)

3. 2010 (3) LRC 291 (DEL)

4. 2016 (3) RCR (Crl) 284 (DEL)

5. (2010) 10 SCC 469

6. Cr App No 1656/2015 SC