FAMILY LAW

Understanding Domestic Violence Act

Qs. What are important legislations for Protection of Women?

1. Protection of Women from Domestic Violence, 2005.

The object of enacting D.V. Act was to provide a remedy under the civil law to women who are sisters, widows, mothers, single woman in addition to a wife or a female living in a relationship in the nature of marriage. However, ‘the protection order’ could be obtained only against a person who was in domestic relationship with the person aggrieved.

2. The Code of Criminal Procedure Code, 1973

3. The personal laws like Hindu Marriage Act, 1955, Indian Divorce Act, Hindu Adoption and Maintenance Act, The Christian Marriage Act, The Special Marriage Act.

Qs. What is Domestic Relationship?

“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.

Qs. What is a shared household?

The "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.

The shared household as envisaged under Section 2(s) of the DV Act is a house where the aggrieved person stayed as a member of the family or a joint family. It will not include the casual visits of a daughter-in-law to the house of her father-in-law or brother-in-law. In Harbans Lal Malik & Ors. v. Payal Malik, 2010(3) LRC 177(DEL), a coordinate Bench of this Court while dealing with the definition of domestic relationship held as under:

"12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and 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. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship.

Qs. What is Domestic Violence?

Under section 3 of the DV Act, ‘Domestic Violence' is defined as any act of physical, mental or sexual violence and any attempt of such violence, as well as the forcible restriction of individual freedom and of privacy, carried out against individuals who have or had family or kinship ties or cohabit or dwell in the same house. It infringes the basic right to feel comfortable within the confines one's house to all domestic violence victims is not a home. A home is a place where one can live without any fear or insecurity. It is with this in mind, the new Protection of Women from Domestic Violence Act was passed. Thus, simply because the Petitioner returned to India either temporarily or permanently is not enough to disentitle her to invoke the provisions of the D.V. Act if she has a case on merits.

The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there.

Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one roof. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband.

In Vijay Verma v. State (NCT of Delhi), 2010(3) LRC 291(DEL), another coordinate Bench of this Court held that casual visits of a daughter-in-law to the house of father-in-law will not amount to living or lived together in a shared household for the purpose of domestic relationship. It was further observed that only the violence committed by the person while living in the shared house can constitute domestic violence for the purpose of D.V. Act.

"6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or 'at any point of time'. The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time" cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the Crl. M.C.3273/2011  Page 12 of 15 house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in- law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase 'at any point of time', say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job 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. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end.

This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence."

Qs. How is the jurisdiction decided in cases of domestic violence?

Under section 27 of the DV Act, the Jurisdiction is of the court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, 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, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.

Further, any order made under this Act shall be enforceable throughout India.

Thus, the Court of Judicial Magistrate of the First Class or the 'MM' within the local limits of which the aggrieved person permanently or temporarily resides or carries on business is competent to entertain the complaint under the provisions of D.V. Act.

Qs. What is the procedure to be followed under the DV Act?

The procedure is provided under section 28 of the Act where in it states that save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). However, despite this courts are free from laying down its own procedure for disposal of an application under section 12 or under sub- section (2) of section 23.

Qs. What is the penalty for breach of protection orders?

A protection order can be obtained only against a person who is in domestic relationship with the aggrieved person.

The penalty for breach of protection order by respondent is provided under section 31 of the DV Act. A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. The offence for breach of protection order is tried by a magistrate and as far as practicable by the magistrate who had passed the order. While framing charges  for breach of protection orders, the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860 ) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961 ), as the case may be, if the facts disclose the commission of an offence under those provisions.

Qs. What are the ingredients of complaint to be filed before women cell?

·      All the members against whom domestic violence is alleged should have resided jointly under one roof.

·      The act of the respondent should be strong enough to go back to your parents after having lost the courage and perseverance to confront the unsurmountable conflicts.

·      Place where shared household was, domestic relationship and where domestic violence was conducted is important to examine the jurisdiction.

Qs. What is the process of appeal in DV Act, 2005?

The appeal lies to the court of session under section 29 of the DV Act, the appeal shall lie within thirty days from the date on which the order is made by the Magistrate and is served on the aggrieved person or the respondent whichever is of the two is later, as the case may be. 

This law blog intends to educate our readers about important aspect of Domestic Violence. This blog is compilation of Jyoti S. who is a partner of LI and looks after the family matter as well as other litigations, and corporate advisory work for Legal Imperials. The firm has recently co-authored a book on “ One person Company” for Wolter Kluwers.