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N Protection of Women From Domestic Violence Act 2005 Rahuls Ias Rediffmailcom 20221015 153258 1 22
N Protection of Women From Domestic Violence Act 2005 Rahuls Ias Rediffmailcom 20221015 153258 1 22
The
Protection of Women from Domestic Violence
Act, 20051
(Protection of Women from Domestic Violence Act, 2005)
CONTENTS
CHAPTER I
PRELIMINARY
2. Definitions
CHAPTER II
DOMESTIC VIOLENCE
CHAPTER III
CHAPTER IV
14. Counselling
27. Jurisdiction
28. Procedure
29. Appeal
CHAPTER V
MISCELLANEOUS
———
lived together for a particular period of time. Hence, application by lady, for maintenance, from man
with whom she shared a close relationship is maintainable, M. Palani v. Meenakshi, (2008) 2 CTC
117.
► Aggrieved person.—Judicial separation does not change the status of wife as an “aggrieved
person” under Section 2(a) r/w Section 12 and does not end the “domestic relationship” under
Section 2(f). Judicial separation is mere suspension of husband-wife relationship and not a
complete severance of relationship as happens in divorce, Krishna Bhattacharjee v. Sarathi
Choudhury, (2016) 2 SCC 705 : (2016) 1 SCC (Cri) 810 : (2016) 2 SCC (Civ) 223.
► Remedies under 2005 Act.—Categories of persons against whom remedies under 2005 Act
are available include women and non-adults, expression “respondent” in Section 2(q) or persons
who can be treated as perpetrators of violence against women/against whom remedies under 2005
Act are actionable, held, cannot be restricted to expression “adult male person” in Section 2(q).
Thus, held, remedies under 2005 Act available even against a female member and also against non-
adults. Restricting perpetrators of violence against women/acts actionable under 2005 Act to only
“adult male person” fails the test of reasonable classification. Firstly because, restriction of
“respondent” in Section 2(q) to “adult male person” obstructs and defeats the purpose of the
legislation, that is, protection of women from any kind of violence/abuse whether physical, sexual,
verbal, emotional or economic. Secondly, the innovative protective provisions and remedies for
protection of women against perpetrators under 2005 Act in Sections 3, 17(2), 18(6), 19 and 20
become toothless and ineffective by said restriction. Thirdly, restriction of “adult male person” in
Section 2(q) of 2005 Act, is anomalous with definition of “domestic relationship” in Section 2(f) of
2005 Act and “shared household” in Section 2(s) of 2005 Act, especially when viewed in light of
amendment to Section 6, Hindu Succession Act, 1956 (w.e.f. 9-9-2005). Fourthly, restricting
meaning of “respondent” in Section 2(q) of 2005 Act to only “adult male person” is not based on any
intelligible differentia having rational nexus with object sought to be achieved. Fifthly, Protection of
Women from Domestic Violence Bill, 2002 did have the words “adult male” in the meaning of
“respondent” in Section 2(q) but surprisingly, the 2005 Act did so - Sixthly, the words “adult male”
are also absent in the meaning of “respondent” in Section 2(m), Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 which is in pari materia with
Protection of Women from Domestic Violence Act, 2005, Hiral P. Harsora v. Kusum Narottamdas
Harsora, (2016) 10 SCC 165.
(b) “child” means any person below the age of eighteen years and includes any
adopted, step or foster child;
(c) “compensation order” means an order granted in terms of Section 22;
(d) “custody order” means an order granted in terms of Section 21;
(e) “domestic incident report” means a report made in the prescribed form on
receipt of a complaint of domestic violence from an aggrieved person;
(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;
► Relationship in the nature of marriage.—“Relationship in the nature of marriage”, is akin to
a common law marriage which inter alia requires that the parties must have voluntarily cohabited and
held themselves out to the world as being akin to spouses for a significant period of time. The parties
should also have a “shared household” as defined in Section 2(s). Merely spending weekends or
one night together does not constitute “domestic relationship” under Section 2(f). Further held, not
all live-in relationships form a relationship “in the nature of marriage” because several parameters
have to be satisfied in order to constitute relationship in the nature of marriage. Lastly, held,
relationship with “keep” whom a man uses for sexual purposes and/or as a servant, does not
constitute relationship in the nature of marriage, D. Velusamy v. D. Patchaiammal, (2010) 10 SCC
469.
Guidelines laid down by Supreme Court for testing under what circumstances live-in relationship
would fall within expression “relationship in the nature of marriage ”under Section 2(f), not
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exhaustive, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 : (2014) 6 SCC (Cri) 593 : (2014) 5
SCC (Civ) 440.
For determination as to whether particular relationship falls in category relationship in the nature
of marriage court should have commonsense/balanced approach - Close analysis of entire
relationship is required. Various factors which exist in particular relationship have to be weighed.
Individual factors cannot be isolated. Invariably, it may be a question of fact and degree as to
whether a relationship meets the tests judicially evolved to fall within “relationship in the nature of
marriage ”under Section 2(f), Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 : (2014) 6 SCC
(Cri) 593 : (2014) 5 SCC (Civ) 440.
Burden of proof is on party asserting the existence of such relationship. Party must positively
prove existence of identifying characteristics of that relationship, since legislature has used the
expression “in the nature of”, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 : (2014) 6 SCC
(Cri) 593 : (2014) 5 SCC (Civ) 440.
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 voluntary sexual
intercourse between a married person who is not one's husband or wife, cannot be said to be a
relationship in the nature of marriage, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 : (2014) 6
SCC (Cri) 593 : (2014) 5 SCC (Civ) 440.
Expression “relationship in the nature of marriage”, has not been defined in the DV Act. It means
a relationship which has some inherent or essential characteristics of a marriage though not a
marriage which is legally recognised. Expression “relationship in the nature of marriage ”cannot be
construed in abstract. It is to be taken in the context in which it appears and to be applied bearing in
mind purpose and object of DV Act as well as meaning of expression “in the nature of marriage”,
Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 : (2014) 6 SCC (Cri) 593 : (2014) 5 SCC (Civ)
440.
All live-in relationships are not relationships in the nature of marriage. Relationship to qualify as
“relationship in the nature of marriage ”should have some inherent or essential characteristics of a
marriage though not a marriage legally recognised. After noticing relevant provisions under foreign
statutes, guidelines laid down by Supreme Court for testing under what circumstances live-in
relationship would fall within expression “relationship in the nature of marriage ”under Section 2(f),
Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 : (2014) 6 SCC (Cri) 593 : (2014) 5 SCC (Civ)
440.
► Domestic relationship.—Definition of “domestic relationship ”under is exhaustive when a
definition clause is defined to “mean ”such and such, the definition is prima facie restrictive and
exhaustive, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 : (2014) 6 SCC (Cri) 593 : (2014) 5
SCC (Civ) 440.
(g) “domestic violence” has the same meaning as assigned to it in Section 3;
(h) “dowry” shall have the same meaning as assigned to it in Section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961);
(i) “Magistrate” means the Judicial Magistrate of the first class, or as the case
may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of
Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person
resides temporaily or otherwise or the respondent resides or the domestic
violence is alleged to have taken place;
(j) “medical facility” means such facility as may be notified by the State
Government to be a medical facility for the purposes of this Act;
(k) “monetary relief” means the compensation which the Magistrate may order
the respondent to pay to the aggrieved person, at any stage during the
hearing of an application seeking any relief under this Act, to meet the
expenses incurred and the losses suffered by the aggrieved person as a result
of the domestic violence;
(l) “notification” means a notification published in the Official Gazette and the
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nature of a marriage may also file a complaint against the relative of the
husband or the male partner];
► “Relative” of husband or the male partner.—“Relative” of husband or the male partner
include females. Legislature never intended to exclude female relatives from ambit of complaint that
could be made under 2005 Act. Though expression “female” is not used in provision to Section 2(q),
but no restrictive meaning can be given to expression “relative” nor has said expression been
defined to make it specific to males only, Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade,
(2011) 3 SCC 650.
(r) “service provider” means an entity registered under sub-section (1) of
Section 10;
(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;
► “Shared household”.—House which exclusively belonged to mother-in-law of the woman
wherein she only lived with her husband for some time in the past after their marriage is not a
“shared household” within the meaning of Section 2(s), hence she is not entitled to claim her right to
live therein under Section 17. In order to claim such a right, the property should belong to her
husband or it should have been taken on rent by her husband or it should have been a joint family
property in which her husband was a member, S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 :
(2007) 2 SCC (Cri) 56.
A woman to claim protection of right in “shared household” has to establish (a) that the
relationship with opposite party is “domestic relationship”, and (b) that the house in respect of which
she seeks to enforce the right is “shared household”. In Indian society there are many situations in
which a woman may not enter into her matrimonial home immediately after marriage. A woman
might not live at the time of institution of proceedings or might have lived together with the husband
even for a single day in “shared household” should not be left remediless in spite of valid marriage.
Narrow interpretation to “domestic relationship” and “shared household” would leave many a woman
in distress without remedy. Hence correct interpretation of aforesaid definition including right to live
in “shared household” would be that words “live” or “have at any point of time lived” would include
within its purview “the right to live”. Not necessary for a woman to establish her physical act of living
in “shared household” either at the time of institution of proceedings or as a thing of past. A woman
having relationship which has legal sanction gets right to live in “shared household” and would be
entitled for protection under Section 17 even if she did not live in “shared household” at the time of
institution of proceedings or had never lived in the “shared household” at any point of time in the
past, Vandhana v. T. Srikanth, (2007) 5 CTC 679.
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Right to live in shared household springs out of valid and subsisting marriage on relevant date
and such relationship of marriage automatically confers right upon the wife to live in “shared
household” as equal partner in joint venture of running family, Vandhana v. T. Srikanth, (2007) 5
CTC 679.
Flat inherited by the petitioner husband and his mother with other legal heirs can be treated as
the shared household where the respondent wife lived in a domestic relationship with the petitioner,
Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, (2009) 1 Mah LJ 466.
►Definition of “shared household” in Section 2(s).—An aggrieved woman's right to
residence in a “shared household” is irrespective of her having any legal interest in the same. A
shared household under Section 2(s) need not be owned singly by the husband. It may or may not
be jointly owned or taken on rent by the husband. The intention of the parties and the nature of
living, including the nature of the household, must be considered, to determine as to whether the
parties intended to treat the premises as a “shared household” or not. The “shared household” is the
household which is the dwelling place of the aggrieved person in present time. It does not mean all
the houses where the aggrieved person has lived in a domestic relationship along with the relatives
of the husband. There will be a number of shared households, which was never contemplated by the
legislative scheme. Mere fleeting or casual living at different places would not make it a shared
household. The right to residence under Section 19 is, not an indefeasible right, especially when a
daughter-in-law is claiming a right against aged parents-in-law. While granting relief under Section
12 of the DV Act, or in any civil proceeding, the court has to balance the rights between the
aggrieved woman and the parents-in-law. Right of residence is in addition to maintenance under
Section 125 CrPC, Rajnesh v. Neha, (2021) 2 SCC 324.
►Meaning and extent of expression “at any stage has lived”.—Expression “at any stage
has lived” refers to living of aggrieved person in a household at the time of filing of application under
S. 12 or passing of order under S. 19 or her living in recent past prior to her exclusion from
possession or on her remaining temporarily absent. Expression does not contemplate that wherever
aggrieved person lived with relatives of husband, all such houses shall become shared household.
Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414
(t) “shelter home” means any shelter home as may be notified by the State
Government to be a shelter home for the purposes of this Act.
Chapter II
DOMESTIC VIOLENCE
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.
► Adult male.—Application for obtaining any relief under the Act can be filed or proceeding
can be initiated against only adult male person, Ajay Kant Sharma v. Alka Sharma, (2007) 4 MPLJ
193.
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
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consider necessary and shall also notify the area or areas within which a Protection
Officer shall exercise the powers and perform the duties conferred on him by or under
this Act.
(2) The Protection Officers shall as far as possible be women and shall possess such
qualifications and experience as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and the other
officers subordinate to him shall be such as may be prescribed.
9. Duties and functions of Protection Officers.—(1) It shall be the duty of the
Protection Officer—
(a) to assist the Magistrate in the discharge of his functions under this Act;
(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;
(c) to make an application in such form and in such manner as may be
prescribed to the Magistrate, if the aggrieved person so desires, claiming relief
for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal
Services Authorities Act, 1987 (39 of 1987) and make available free of cost
the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling,
shelter homes and medical facilities in a local area within the jurisdiction of
the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and
forward a copy of his report of having lodged the aggrieved person in a shelter
home to the police station and the Magistrate having jurisdiction in the area
where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily
injuries and forward a copy of the medical report to the police station and the
Magistrate having jurisdiction in the area where the domestic violence is
alleged to have been taken place;
(h) to ensure that the order for monetary relief under Section 20 is complied with
and executed, in accordance with the procedure prescribed under the Code of
Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.
(2) The Protection Officer shall be under the control and supervision of the
Magistrate, and shall perform the duties imposed on him by the Magistrate and the
Government by, or under, this Act.
► Domestic incident report.—A domestic incident report is required to be prepared by a
protection officer under Section 9(1)(b) of the Protection of Women from Domestic Violence Act,
2005. This is contemplated in case of physical violence when complaint in that behalf is made or
filed. The protection officer, in such a case, functions under Section 9(1)(a) of the 2005 Act. Such
a report cannot be made in case of any application alleging domestic violence which may be other
than physical violence e.g. verbal or emotional abuse. An application made under Sections 18 and
19 of the 2005 Act may have to be considered based upon the facts of each case and not
necessarily with the aid and assistance of any protection officer or service provider. It may be
required to be considered only upon the application made to the court by the aggrieved person
herself. In such a case no domestic incident report may be filed or may be necessitated. Sabah
Sami Khan v. Adnan Sami Khan, (2011) 1 Mah LJ 427 (Bom).
10. Service providers.—(1) Subject to such rules as may be made in this behalf,
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any voluntary association registered under the Societies Registration Act, 1860 (21 of
1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any
other law for the time being in force with the objective of protecting the rights and
interests of women by any lawful means including providing of legal aid, medical,
financial or other assistance shall register itself with the State Government as a service
provider for the purposes of this Act.
(2) A service provider registered under sub-section (1) 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.
(3) No suit, prosecution or other legal proceeding shall lie against any service
provider or any member of the service provider who is, or who is deemed to be, acting
or purporting to act under this Act, for anything which is in good faith done or
intended to be done in the exercise of powers or discharge of functions under this Act
towards the prevention of the commission of domestic violence.
11. Duties of Government.—The Central Government and every State Government,
shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity through public media
including the television, radio and the print media at regular intervals;
(b) the Central Government and State Government officers including the police
officers and the members of the judicial services are given periodic
sensitization and awareness training on the issues addressed by this Act;
(c) effective co-ordination between the services provided by concerned Ministries
and Departments dealing with law, home affairs including law and order,
health and human resources to address issues of domestic violence is
established and periodical review of the same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to
women under this Act including the courts are prepared and put in place.
Chapter IV
PROCEDURE FOR OBTAINING ORDERS OF RELIEFS
► Scope.—Chapter IV is the heart and soul of the Act which provides for various reliefs that
can be granted by Magistrate to an aggrieved woman. These reliefs as available to aggrieved woman
under Sections 12(2), 18 to 22, discussed, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 :
(2014) 6 SCC (Cri) 593 : (2014) 5 SCC (Civ) 440.
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 into consideration any domestic incident report received by him from the
Protection 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
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shall be passed by them taking into consideration any domestic incident report received from the
protection officer or the service provider, then the legislature would have incorporated such proviso
as in the case of Section 12(1), even in Section 26 also. But however, no such proviso is
enumerated under Section 26 of the said Act. Section 12 contemplates the Magistrate to obtain a
report from the protection officer before passing any order. But Section 26 confers jurisdiction on
the Family Court and civil court to grant relief does not place any such embargo on the Family Court
to obtain a report from the protection officer, M. Palani v. Meenakshi, (2008) 2 CTC 117.
► Opportunity of leading evidence.—Application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 cannot be disposed of without opportunity of leading
evidence, Madhusudan Bhardwaj v. Mamta Bhardwaj, (2009) 3 MPLJ 459.
When Miscellaneous Petition filed under Section 12 is not for any offence but only for certain
reliefs such as maintenance, compensation, return of jewellery, etc. and when there is no offence
requiring framing of charge, question of discharge does not arise at all Section 28(2) contemplates
that court dealing with petition under Section 12 can evolve its own procedure to regulate and pass
final orders and not that court can discharge a person invoking said provision, V. Palaniammal v.
Thenmozhi, (2010) 1 MWN (Cri) 217 (Mad).
► Procedure for disposal of application.—Court can lay down its own procedure for disposal
of an application under Section 12, Ajay Kant Sharma v. Alka Sharma, (2007) 4 MPLJ 193.
► Report of protection officer.—It is not necessary for the Magistrate to call and consider
report of protection officer in application under Section 12, Ajay Kant Sharma v. Alka Sharma,
(2007) 4 MPLJ 193.
► Aggrieved person.—“Aggrieved person” includes divorced wife. Application under Section
12 seeking relief under Sections 18 to 23 filed by appellant Muslim wife against husband after
obtaining divorce, maintainable. If domestic violence had taken place when wife lived together in
shared household with her husband through relationship in nature of marriage, held, application
would be maintainable. Act of domestic violence once committed, subsequent decree of divorce,
would not absolve husband from his liability for offence (though in present case, the alleged divorce
not really found to have taken place), Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10
SCC 736.
► Maintainability of complaint.—Unsuccessful divorce proceedings cannot adversely affect
maintainability of application under 2005 Act since marital relationship continued and in view of
second marriage by husband cruelty to wife stood established. Such act constituted mental
domestic violence entitling wife to seek maintenance, Prakash Nagardas Dubal-Shaha v. Meena
Prakash Dubal Shah, (2016) 13 SCC 277.
► Retrospectivity.—Retrospective applicability to pre-2005 actions, Shalini v. Kishor, (2015)
11 SCC 718 : (2015) 4 SCC (Cri) 532.
► “Economic abuse”.—Income of retention of stridhan by husband or his family. Regard
being had to concept of “continuing offence” and demands made by wife, application made by
appellant wife under Section 12, 2005 Act after about 2 yrs of judicial separation, not barred by
limitation, Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705 : (2016) 1 SCC (Cri)
810 : (2016) 2 SCC (Civ) 223.
► Limitation.—Limitation under Sections 468 and 472 CrPC, held, applicable to complaint
under Section 12 of DV Act, 2005, Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC
705 : (2016) 1 SCC (Cri) 810 : (2016) 2 SCC (Civ) 223.
► Recovery of stridhan.—Appellant wife claiming stridhan 2 yrs after decree of judicial
separation, held, maintainable. Firstly, judicial separation does not change the status of wife as an
“aggrieved person” under Section 2(a) r/w Section 12 and does not end the “domestic relationship”
under Section 2(f). Judicial separation is mere suspension of husband-wife relationship and not a
complete severance of relationship as happens in divorce. And as long as status of “aggrieved
person” remains, and stridhan remains in custody of husband, wife can always put forth her claim to
stridhan under Section 12. Secondly, regard being had to concept of “continuing offence” and
demands made by wife, application made by appellant wife under Section 12, 2005 Act after about
2 yrs of judicial separation not barred by limitation, Krishna Bhattacharjee v. Sarathi Choudhury,
(2016) 2 SCC 705 : (2016) 1 SCC (Cri) 810 : (2016) 2 SCC (Civ) 223.
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► Duty of courts.—2005 Act is a beneficial and assertive legislation for more effective
protection of constitutional rights of women and to ensure that they do not become victims of any
kind of domestic violence. Ambit of definition of “domestic violence” takes within its sweep
“economic abuse” under Section 3. Economic abuse has many facets. Before nullifying grievance
of aggrieved person on ground of maintainability, court should find out whether allegations and
demands are really and legally sound and correct. Court should scrutinise facts from all angles on
merits and discuss and deliberate on issues raised. Courts should adopt a sensitive approach
towards the rights of women under 2005 Act, Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2
SCC 705 : (2016) 1 SCC (Cri) 810 : (2016) 2 SCC (Civ) 223.
13. Service of notice.—(1) A notice of the date of hearing fixed under Section 12
shall be given by the Magistrate to the Protection Officer, who shall get it served by
such means as may be prescribed on the respondent, and on any other person, as
directed by the Magistrate within a maximum period of two days or such further
reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as
may be prescribed shall be the proof that such notice was served upon the respondent
and on any other person as directed by the Magistrate unless the contrary is proved.
14. Counselling.—(1) 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 possess such
qualifications and experience in counselling as may be prescribed.
(2) Where the Magistrate has issued any direction under sub-section (1), he shall
fix the next date of hearing of the case within a period not exceeding two months.
15. Assistance of welfare expert.—In any proceeding under this Act, the Magistrate
may secure the services of such person, preferably a woman, whether related to the
aggrieved person or not, including a person engaged in promoting family welfare as he
thinks fit, for the purpose of assisting him in discharging his functions.
16. Proceedings to be held in camera.—If the Magistrate considers that the
circumstances of the case so warrant, and if either party to the proceedings so desires,
he may conduct the proceedings under this Act in camera.
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.
► Scope.—This section provide for a higher right in favour of the wife. She not only acquires a
right to be maintained but also thereunder acquires a right of residence which is a higher right.
However, said right, as per the legislation extends only to joint properties in which husband has a
share, Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649.
► Ownership rights.—The statute, expressly excludes the consideration of ownership rights as
a condition for determining whether or not a particular property is a shared household. A wife who
owns a property can even otherwise exclude any person, including her abusive or violative husband
therein under civil law. The enactment of the 2005 Act would not be required to give such a wife any
added protection by way of any injunctive relief in respect of a residential property owned by her.
The 2005 Act steps in to protect the women who were otherwise left unprotected under the general
law. There is no place for proprietary rights under the 2005 Act. The Act is an extension of the
deeper and profounder principle of women's rights as a part of human rights. The matrimonial home
or the shared household of a person does not require it to be owned or co-owned by the person
who has been violated. It could be any household whether owned or tenanted, either jointly or by
either of them as specifically set out in Section 2(s). It is the household in which the victim and the
violatory may be having rights, singly or jointly. Consequently, they may or may not have title to the
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property and hence, the victim can apply for a residence order to the court in respect of a shared
household, which includes their matrimonial home, whether or not she has any right, title or
beneficial interest therein. The very consideration of ownership rights would put materialism before
matrimony, Ishpal Singh Kahai v. Ramanjeet Kahai, (2011) 3 Mah LJ 849 (Bom).
► Residential rights.—The husband, who subjects his wife to domestic violence in a marital
relationship would require a protection as well as a residence order passed against him. The wife is
required to show the court nothing more than her residential rights to the disputed premises which is
her matrimonial home or the shared residence, Ishpal Singh Kahai v. Ramanjeet Kahai, (2011) 3
Mah LJ 849 (Bom).
► Shared household.—Section 17 creates entitlement in favour of woman of right of residence
under “shared household” irrespective of her having any legal interests in the same. The direction,
inter alia, can include an order restraining dispossession or a direction to remove himself from
shared household, on being satisfied that domestic violence had taken place, Manmohan Attavar v.
Neelam Manmohan Attavar, (2017) 8 SCC 550.
► Nature and scope of right to reside in shared household.—Scope of right to reside in the
shared household conferred under DV Act and categories of women upon whom the said right is
conferred, discussed. Wide and comprehensive scope of “domestic relationship", explained in
detail, Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90.
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;
(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.
► Conduct of parties.—Conduct of parties even prior to coming into force of 2005 Act can be
taken into consideration while passing the order for protection-cum-residence and monetary relief,
V.D. Bhanot v. Savita Bhanot, (2012) 3 SCC 183 : (2012) 2 SCC (Cri) 102 : (2012) 2 SCC (Civ)
53.
► Opportunity of hearing.—Two things are required before passing an order in favour of
aggrieved person, (i) opportunity of hearing to the parties; and (ii) on being prima facie satisfied
with regard to happening of the domestic violence or likely to happen thereof. It cannot be accepted
that only upon providing an opportunity of hearing such orders are required to be passed,
Madhusudan Bhardwaj v. Mamta Bhardwaj, (2009) 3 MPLJ 459.
► Grant of relief.—Conduct of parties even prior to commencement of DVA, 2005, reiterated,
can be taken into consideration while passing an order under Sections 18, 19 and 20, Saraswathy
v. Babu, (2014) 3 SCC 712 : (2014) 4 SCC (Cri) 688 : (2014) 2 SCC (Civ) 330.
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—
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shared residence of the parties. Sabah Sami Khan v. Adnan Sami Khan, (2011) 1 Mah LJ 427
(Bom).
► Relief under the Act.—Act contemplates two types of reliefs viz. (a) right to reside in shared
household; and (b) right to seek residence orders under Section 19 of the Act—Section 19(1) of the
Act empowers Magistrate to pass variety of residence order. Shared household would come into
picture only when relief is sought in terms of Sections 19(1)(a) to (e) of the Act. Aggrieved woman
can seek orders to enable her to continue to reside in shared household or protection order to
enable her to reside in shared household, then property, which is subject-matter, should be shared
household. Aggrieved woman can seek relief of alternate accommodation in terms of Section 19(1)
(f) of the Act and in such case concept of shared household would not be attracted. Expression
“shared household” occurring in Section 19(1)(f) of the Act is just for purpose of enabling aggrieved
woman to seek alternative accommodation, which would be on par with shared household that she
enjoyed at some point of time, M. Muruganandam v. M. Megala, (2011) 1 CTC 841 (Mad).
► Jurisdiction of Magistrate.—Jurisdiction of Magistrate has jurisdiction to direct removal of
spouse from shared household on being satisfied that domestic violence had taken place, Samir
Vidyasagar Bhardwaj v. Nandita Samir Bhardwaj, (2017) 14 SCC 583.
► “Shared household” — What is.—Where there is share of husband in property owned
entirely by deceased first wife, remedies of second wife are restricted against such share of
husband alone, Neelam Gupta v. Mahipal Sharan Gupta, (2020) 11 SCC 232.
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 is 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
sub-section (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.
► Claim of maintenance.—Claim of maintenance against brother of deceased husband, in
case of shared household in ancestral joint Hindu family property, and joint business between said
brother and deceased husband, allowed by courts below and direction for interim maintenance,
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(c) the form and manner in which a domestic incident report may be made under
clause (b) of sub-section (1) of Section 9;
(d) the form and the manner in which an application for protection order may be
made to the Magistrate under clause (c) of sub-section (1) of Section 9;
(e) the form in which a complaint is to be filed under clause (d) of sub-section
(1) of Section 9;
(f) the other duties to be performed by the Protection Officer under clause (i) of
sub-section (1) of Section 9;
(g) the rules regulating registration of service providers under sub-section (1) of
Section 10;
(h) the form in which an application under sub-section (1) of Section 12 seeking
reliefs under this Act may be made and the particulars which such application
shall contain under sub-section (3) of that section;
(i) the means of serving notices under sub-section (1) of Section 13;
(j) the form of declaration of service of notice to be made by the Protection
Officer under sub-section (2) of Section 13;
(k) the qualifications and experience in counselling which a member of the
service provider shall possess under sub-section (1) of Section 14;
(l) the form in which an affidavit may be filed by the aggrieved person under sub
-section (2) of Section 23;
(m) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if,
before the expiry of the session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter have effect
only in such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
———
1.Received the assent of the President on September 13, 2005 and published in the Gazette of India, Extra., Part
II, Section 1, dated 14th September, 2005, pp. 1-12, No. 49.
2.
The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, Ss. 95, 96 & Sch. V (w.e.f.
31-10-2019).
3.
Deleted vide Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
4.
Deleted vide Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
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