DOMESTIC VIOLENCE AND EVERYTHING ABOUT IT – EXPLAINED ON LAWKARO
BEST STUDY NOTES ON WHAT IS DOMESTIC VIOLENCE? DEFINITION OF DOMESTIC VIOLENCE AND PUNISHMENTS?
Domestic violence is a widespread phenomenon that has remained relatively unnoticed in the public eye. Section 498A of India's Penal Code currently makes it an offense if a woman is the victim of cruelty by her husband or relatives. However, the civil laws don't address the whole phenomenon. Domestic violence is a serious threat to development and a severe human rights problem. This was acknowledged by the Vienna Accord of 1994, the Beijing Declaration, and the platform to Action had recommended that all State Parties protect women from violence, especially within the family.
The Government of India was urged to pass a law that would provide a remedy under civil law to the victim of domestic violence. This law was consistent with the rights granted under Articles 14, 15, and 21 of the Constitution. The Domestic Violence Act of 2005 addressed the following issues: It applies to women who have been or are currently in a relationship of abuse with their abuser. It also covers relationships with family members who live together as a single-family. Women who are widows, single mothers, sisters, or live with an abuser can also be protected by the Act. The Act allows the spouse or female to file a complaint against the male partner or any other relative in a marriage relationship.
- It does not allow any female relative of the man to file a complaint against his wife or male partner.
- The definition of domestic violence includes actual abuse or threat of abuse, whether it is verbal, sexual, emotional, or economic. This definition also covers harassment by unlawful dowry demands to women or their relatives. It protects women's rights to housing. It allows a woman to live in her matrimonial or shared home, regardless of whether she holds any title or rights. The Magistrate can issue a residence order to secure this right.
- The Magistrate can issue protection orders to the aggrieved to stop the respondent from entering a workplace or other place frequently frequented by the aggrieved, trying to communicate with her, isolating assets, and causing violence towards the aggrieved, her relatives, or other people who assist her from domestic violence.
- It allows for the appointment and registration of Protection Officers as service providers to assist the victim with her medical examination, safe shelter, and legal assistance.
- It also provides more effective protection of the Constitution of India's rights of women who have been victims of domestic violence.
The 2005 Protection of Women from Domestic Violence Act gives preference to the wife over the husband. This Act is not in violation of Article 14 or 16 of the Indian Constitution. In Denmision Paulraj v. Union of India (AIR 2009 (NOC 2540 (Mad), The Protection of Women from Domestic Violence Act 2005 gives the wife a greater right. The wife acquires both a right to be kept and, consequently, a higher right of residence. Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, AIR 2008 SC 2675
DOMESTIC RELATIONSHIP UNDER DOMESTIC VIOLENCE
Section 2(f) defines 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 like marriage, adoption or are family members living together as a joint family, Where the parties have lived in a shared household though temporarily lived together. With consensual sex, the domestic relationship can be inferred. M. Palani v. Meenakshi, AIR 2008 Mad 162.
The divorced wife will fall under the category of aggrieved persons and can live with a shared household, Shahnaz Khan v. Razak Khan, 2008 (72) AIC802 (M.P.).
SECTION 2 (S) DESCRIBES A SHARED HOUSEHOLD UNDER DOMESTIC VIOLENCE
Section 2(s), "shared households," refers to a household in which the aggrieved individual lives, or has lived, at any time, in a domestic relationship with the respondent. It can be owned or rented jointly by the aggrieved and respondent or by either one of them. This includes any household that may be part of the joint family, of which the respondent is also a member. The shared household is the house in which the parties last lived. P. Babu Venkatesh v. Rani, AIR 2008 (NOC) 1772 (Mad) A house can be considered a "shared household" if the husband and wife live in a domestic relationship. Rajkumar Pandey v. Sarita Rajkumar Pandey (AIR 2009 (NOC), 1013 (Bom).
DEFINITION OF DOMESTIC VIOLENCE UNDER SECTION 3
Definition of domestic violence - For this Act, any act, omission, commission, or conduct by the respondent shall be considered domestic violence.
- Injures, harms, or threatens the health, safety, or life of the aggrieved individual or tends to do so. This includes physical, sexual, and emotional abuse, as well as economic abuse.
- Harasses, harms, or injures the aggrieved individual with a view of coercing her or any other related person to her to comply with any illegal demand for any dowry, other property, or valuable security;
- Is a threat to the aggrieved or any other person who may be related to her through any conduct mentioned under clause (a), or clause (b);
- Injures or causes injury to another person, either mental or physical.
Domestic violence can include mental harassment, verbal abuse, or emotional abuse, but also economic abuse. (Bulu Das v. Raton Das, 2010 (85) AIC 952 (Gau).
Protection officers-Section 8 provides for the appointment of "protection officers," and section 33 provides a penalty for failure to discharge duty by the protection officers. Although the Act provides a civil remedy for certain cases, it is clear that the Act's sections 19, 27, 28, and 31 to 33 indicate that certain proceedings under it are criminal. Ajay Kant and Alka Sharma (2008) Cr LJ 265 (MP).
WHAT TO DO IF SOMEONE COMMITS DOMESTIC VIOLENCE
APPLICATION TO MAGISTRATE - SECTION 12 - APPLICATION TO MAGISTRATE
Section 12 of the Act provides for Magistrate application.
- Any aggrieved individual, Protection Officer, or another person for the aggrieved may make a request to the Magistrate for one or more reliefs under the Act. However, before he orders such an application, the Magistrate will consider any domestic incident report received from him by the Protection Officer/service provider.
- A relief requested under sub-section (1) can include an order to pay compensation or damage. This is without prejudice to the aggrieved’s right to bring a suit for damages or compensation for injuries caused by domestic violence.
- Each application made under subsection (1) must be in the prescribed form and include as many details as possible.
- The Magistrate will fix the first hearing date, which must not exceed three days after the court received the application.
- Every application under sub-section (1) shall be dealt with by the Magistrate within sixty days of the first hearing. Section 12 encompasses the remedies available to the aggrieved under section 17, which grants the right to reside in a shared family. Asifa Khatoon v. Rubina, 2009 (78) AIC 879 (Cal)
Without the opportunity to present leading evidence, an application for Magistrate under section12 cannot be considered. Madhusudan Bhardwaj v. Mamta Bhardwaj, 2009 (81) AIC 423 (MP)
SECTION 12 AND JURISDICTION OF THE MAGISTRATE FOR DOMESTIC VIOLENCE CASES
Only a judicial Magistrate in First Class can be granted jurisdiction under section 12.
SECTION 17 - RIGHT TO LIVE IN A SHARED HOUSEHOLD
- Every woman in a domestic relationship has the right to reside within a shared household regardless of whether she holds any title, right or beneficial interest.
- The respondent may not expel or exclude the aggrieved from the shared household or any part thereof, except as required by law.
Only the husband can claim alternative accommodation, not his in-laws and other relatives. Only the wife is allowed to claim the right to live in a shared house. A "shared house" would be defined as a house owned or rented by a husband or a house that belongs to a joint family to which the husband is a member.
SECTION 18 - PROTECTION ORDERS AGAINST DOMESTIC VIOLENCE
After giving both the respondent and the aggrieved a chance to be heard, the Magistrate can pass a protection order for the aggrieved and prohibit the respondent.
- Committing any act of domestic violence
- Aiding or abetting domestic violence acts.
- Entering the place of employment or, if the aggrieved individual is a child or other place that the aggrieved persons frequent, the school.
- Attempting to communicate with the aggrieved in any form whatsoever, including oral, written, electronic, or telephonic.
- Obtaining the consent of the Magistrate to alienate any assets or operate bank lockers or bank account accounts that are used or enjoyed jointly by the aggrieved party and the respondent, or by the respondent alone, including her stride, or any other property owned jointly or separately by the parties;
- Inflicting violence on the dependents, other relatives, or anyone who provides domestic violence assistance to the aggrieved.
- Committing any other act that is not specifically stated in the protection order.
Only a male adult can apply for a protection order. A male adult man cannot be made the respondent. Rina Mukherjee v. State of West Bengal, AIR 2009 (NOC) 2841 (Cal)
AWARENESS OF DOMESTIC VIOLENCE
SECTION 19 PROVIDES FOR RESIDENCE ORDERS
- The Magistrate can, upon being satisfied that domestic violence occurred, approve a residence order 12 while deciding an application under subsection (1) of section.
- to restrain the respondent from dispossessing of or in any other way disturbing the possession by the aggrieved persons from the shared households, regardless of whether the respondent has a legal and equitable interest in the shared households;
- Directing the respondent from the household to get out of it;
- To prohibit the respondent and any family members from entering any part of the shared household where the aggrieved individual resides.
- To restrain the respondent's ability to alienate or dispose of the shared household or encumbering
- To restrain the respondent from abusing his rights in the shared home except with leave of the Magistrate;
- Directing the respondent to provide the aggrieved with the same level of alternative accommodation as she has in her shared household, or to rent the same, if necessary.
Except that clause (b), no order shall be passed against a woman.
- The Magistrate can impose additional conditions or give any other direction he deems necessary to ensure the safety of the aggrieved individual or their children.
- A Magistrate can require that the respondent execute a bond with or without sureties to prevent the commission of domestic violence.
- A sub-section (3) order shall be considered an order under Chapter VIII of Code of Criminal Procedure 1973 (2 of 1974) and shall be treated accordingly.
- The court can also make an order to direct the nearest officer-in-charge to provide protection for the aggrieved or assist her in implementing the order.
- The Magistrate can make an order under subsection (1) and impose obligations on the respondent relating to rent or other payments. This is subject to the financial resources and needs of the parties.
- The Magistrate can direct the officer in charge of the police station under whose jurisdiction the Magistrate was approached to help execute the protection order.
- The Magistrate can direct the respondent's return to the aggrieved individual her stridhan and any other property, valuable security to which they are entitled.
For a short time, the daughter-in-law lived in a father-in-law's building. Under section 19 of Act I.S., the building must be considered a shared household. Prabhakaran V. State of Kerala (AIR 2009 (NOC 1017 (Ker).
SECTION 20 PROVIDES MONETARY RELIEF FOR VICTIM OF DOMESTIC VIOLENCE
- The Magistrate can direct the respondent, upon deciding an application under section (1) of section 12, to pay monetary relief to cover the expenses and losses suffered and incurred by the aggrieved individual and any child of the aggrieved persons as a consequence of domestic violence. Such relief may include but is not limited to:
- Loss of earnings
- Medical expenses
- Loss due to destruction, damage, or removal of property under the control of the aggrieved party;
- Maintenance for the aggrieved individual and her children, if any. This could include an order of maintenance under or in addition order of maintenance under section125 of the Code of Criminal Procedure 1973 (2 of 1974) or any other law at the time.
- The amount of monetary relief provided under this section shall not be excessive, unfair, unreasonable, or inconsistent with the level of living that the aggrieved individual is used to.
- The Magistrate has the power to make a lump sum payment or monthly maintenance payments, depending on the facts of the case.
- A copy of the order of monetary relief under sub-section (1) shall be sent by the Magistrate to all parties and the in charge of the police station located within the local boundaries of the jurisdiction where the respondent resides.
- Within the time specified by the order under subsection (1), the respondent must pay the monetary relief to the aggrieved party.
- The Magistrate can direct an employer or debtor to pay the respondent if the respondent fails to pay by subsection (1). This amount may be added to the monetary relief due to the respondent.
According to section 20 of the Act, the court can award maintenance to the aggrieved individual and their child. Rajesh Kure v. Safurabai, AIR 2009 813 (Chh)
SECTION 21 OF THE ACT COVERS CUSTODY OF CHILD
The Magistrate should allow a father to have a reasonable opportunity to seek the appropriate forum under the law to continue custody of a child in his custody.
ORDERS FOR COMPENSATION IN THE CASES OF DOMESTIC VIOLENCE
Section 22 of the Act covers compensation orders. Upon application by the aggrieved, the Magistrate can issue an order directing that the respondent pay damages and compensation for injuries including mental torture or emotional distress, resulting from the domestic violence acts committed by him.
The property at issue belonged to the in-laws. The wife was the one who filed the civil suit for a permanent order. The husband and his in-laws were placed under a restraint order by the trial court. The High Court ruled that the Act did not allow for the trial court to issue an order. It directed the High Court to the trial judge to dispose of the property and determine its distribution. Sonia Mann State, 2009 (11) AIC 719 (Del).
BEST LAWYERS FOR DOMESTIC VIOLENCE IN DELHI-NCR
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