Domestic Violence Cases

Since the time immemorial, women have been subjected to various types of violence in domestic relationship. It includes physical violence, mental torture, emotional or verbal abuse, cruelty in any form, i.e., physical or mental, etc. For the protection of women from such violence, a uniform piece of legislation is passed by the Parliament of India on 13th September, 2005 which has its applicability on all women irrespective of their religion, caste, race, class or age. This piece of legislation is The Protection of Women from Domestic Violence Act, 2005 which came into force on 26th October, 2006.  

Key Definitions

Aggrieved person is defined under Section 2(a) of the Act as “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”.

Domestic relationship is defined under Section 2(f) as “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.”

Domestic Violence is defined under Section 3 as “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it

  1. 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
  2. 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
  3. 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
  4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

Grounds of Filing a Case in Court under DV Act, 2005

Following are the grounds of filing a case in court under The Protection of Women from Domestic Violence Act, 2005:

  1. Physical Abuse – It includes 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
  2. Sexual Abuse – It includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
  3. Verbal and Emotional Abuse – It includes insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
  4. Economic Abuse – It includes­
  5. deprivation of all or any economic or financial resources to which the aggrieved person is entitled
  6. 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
  7. prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy.

 

Procedure to File a Case in Court under DV Act, 2005

An aggrieved woman can file a complaint of domestic violence to a Protection Officer or Service Provider or Directly approach the Magistrate or the police station to register the complaint.

In addition to all these above-mentioned approaches of filing a complaint, Section 5(e) of the Act provides that it is the duty of the police officer to proceed according to the law i.e., to register an FIR in case he receives an information of commission of a cognisable offence i.e., commission of domestic violence.

 

Which Court has Jurisdiction to Decide a Case under DV Act, 2005

Section 27 of the DV Act provides that a first-class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offences under the Act within the local limits of which

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen.

 

Relief Available to Aggrieved Person under DV Act, 2005

Section 12 of the Act provides that 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 The relief sought 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

The relief available under the DV Act as provided from Section 18 to 23 for the aggrieved person are as follows:

  1. Protection Order (Section 18)
  2. Residence Order (Section 19)
  3. Monetary Relief (Section 20)
  4. Custody Order (Section 21)
  5. Compensation Order (Section 22)
  6. Power to Grant interim and ex parte Order (Section 23)

Section 12(5) of DV Act provides that The Magistrate shall dispose of every application within a period of sixty days from the date of its first hearing.

 

Appeal Provision

Section 29 of the Act contains appeal provision and states that “There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later”

Child Custody under Domestic Violence Act

Children are vulnerable and war between parents can harm them in a substantial manner. The Indian judiciary has always made efforts to mitigate this harm by settling disputes in such a manner that the children remain unharmed. To ensure this, the protection of women from domestic violence act, 2005 was enacted, the act protects women and also includes children. The act allows a person to approach the court and request temporary custody of the child.

Section 21 of the act provides-

“Section 21. Custody orders.Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act 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:

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”

This provision under the act talks about temporary custody of the child. A magistrate can grant temporary custody to the aggrieved party while the hearing of the application is in process and if it deems fit, may make arrangements for visit by the respondent. In cases, where the magistrate feels that the visits by respondent may harm the child, it can refuse to allow them.

Nature of such order

Section 21 allows temporary custody. The magistrate can allow interim custody while the application is in process. The interim custody ends when a final order is reached. To put it simply, no orders for permanent custody can be passed under the act.

“Welfare principle”

The primary focus of the courts while deciding ‘child custody’ matters is the welfare of the children involved. A child needs the love and care of both mother and father. The process not only deprives a child of one of his parents but also causes immense trauma. Therefore, when spouses approach the court with requests of custody, it takes into consideration the best interest of the child. The court can deny custody to the mother if it deems her unfit for raising the child. The courts have pointed out that the interest and welfare of children is important, not the rights of parents under acts.  Any decisions which can hurt the child are avoided.

Rights of Father

The provision under section 21 allows the magistrate to grant visitation rights to the respondent. It also specifies that, if the magistrate is of the opinion that such visits can harm the child in any manner then it can deny such visits.

The Bar Council of India does not permit advertisement or solicitation by advocates in any form or manner. By accessing this website, http://abbasilegal.com/, you acknowledge and confirm that you are seeking information relating to Abbasi & Associates of your own accord and that there has been no form of solicitation, advertisement or inducement by Abbasi & Associates or its members.
I Agree