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Mr. R. Singgaravelan, M. L., Designated Senior Advocate, -Report on the Protection of Women from Domestic Violence Act, 2005 (Central Act 43 of 2005) and March of Law

by Sekar Reporter · Published May 22, 2021 · Updated May 23, 2021

Mr. R. Singgaravelan, M. L.,
Designated Senior Advocate,
No. 108/64, Catholic Centre,
1st Floor, Armenian Street,
Chennai – 600 001.
_______________________________________________________________________________________

Report on the Protection of Women from Domestic Violence Act, 2005 (Central Act 43 of 2005) and March of Law

I. PRELUDE:–

1. When Covid chases all of us to breathe for our life. I had an occasion to go through the Judgment of the Hon’ble Mr. Justice S.M.Subramaniam who beautifully and thoughtfully penned down a public interest oriented judgment on Domestic Violence Act, 2005 holding reasonably that the Act is intended for the welfare of women and hence any proceedings under the Act cannot be sought to be transferred to Matrimonial Court or Civil Court under Article 227 of the Constitution of India on analysation of the entire scheme of the Act and the scope of Article 227 of the Constitution of India. I have also gone through the judgement of Hon’ble Mr. Justice N. Anandh Venkatesh in a Batch of Criminal Original Petitions under Section 482 Cr. P. C. very cautiously knocking at the vexatious and very casual approach of the parties invoking section 482 of the Cr. P. C. to stall the proceedings of the DV Act, 2005 by dismissing all such petitions and while doing so he very diplomatically put the hurdle very difficult to jump over to invoke Article 227 of the Constitution of India at para 52 xiv of his judgment.

2. Those thought provoking judgments have driven me to find out one of the earliest judgments of our Madras High Court rendered by Hon’ble M. Justice V.Rama Subramaniam now adorning the Supreme Court Bench who has in his usual way of exhibition of knowledge clinically dissected the Act, 2005 and given a wider meaning to the definition of “shared household in the interest of women by taking note of the object of the Act in Vandhana –Vs- T.Srikanth and Krishnamachari reported in 2007 (5) CTC 679.

3. In one of the cases conducted by me though not under the DV Act, 2005 before the Hon’ble Judge Mr.Justic K.Chandru of versatile knowledge against the punishment order passed against one S. Chitra of Fire Service Department for her objections against the Sexual Harassment caused to her in her office in WP. No. 37598/2009 the Hon’ble Judge set aside the punishment order passed against her by his order dated 30.09.2009 by summoning the original file and finding out the truth by his short but sharp order refering to the judgment of Vishaka reported in (1997) 6 SCC 241 followed in D S. Grewal Vs. Vimmi Joshi reported in 2009 (2) SCC 210 boosting the energy of all hepless and hapless working women.

4. Then came the judgment of the Hon’ble 3 Judges Bench Judgment of Apex Court headed by Hon’ble Mr. Justice Ashok Bhushan with Hon’ble Justice R.Subhash Reddy and Hon’ble Mr. Justice M.R.Shah in Satish Chandira Ahuja –Vs- reported in (2021) 1 SCC 414, which is a milestone judgment not only for the Act but especially for the way in which it was written with 167 paragraphs protecting and safeguarding the interest of women by taking note of almost all the earlier judgments under the Act and other similar Acts and Rules.

5. Normally and wantonly I avoided to deal with matter concerned with the matrimonial proceedings particularly the Domestic Violence Act, 2005 being afraid of the definition of ‘domestic violence’ given under the Act and ‘cruelty’ explained in various decisions of the court as I honestly feel some of my acts fall under the definition of above words though my wife also is very well capable of returning the same with penal interest as said to have been faced by all of my Law College classmates also on my verification and sharing of my problems with them.

6. Though just to ease the occasion I have written above the plight of women in the society constrains me to pen down the Report on the Domestic Violence Act and the Rules by referring to the above judgments and other judgments referred to inside with a small tribute to begin atleast to satisfy my wife with a fear of facing severe criticism and threat from my own friends.
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“Even before
A Female Child
Takes her
First Breath
On this Earth
Indifference Starts-
Preferring Male Child!
And then
With her kith and kin
Criticising her colour
And Figure!
Days Grow-
She also grows.
Her Education
And her placement
Are left to the
Sweet Will of God!
She grows and grows
And along with her
The problems also grow-
Faster and Faster!
With a Psychosis Fear
Of her Parents
Praying for her
Safe Life
She grows faster
And Faster!

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In Every Walk of life
The World teaches her
Disgust, Discrimination, Disquisition,
Diversion, Differential Treatment and Humiliation!.

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With or without
Physical, Sexual Verbal and Emotional Abuse –
She silently grows
And grows:-
Being afraid
Of the Society
And her
Family Dignity!

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For a licensd
Torture
Now she is
Made Ready
As a housewife!

*********************************************************************************
No one needs to worry.
She is a Woman
She will manage.
Even
She is planted
In a Desert
She will grow!

*********************************************************************************
Years roll on
And on!
Now,
Her daughter
Is a Graduate!

*********************************************************************************
She now is ready
To Return
To her Daughter
What all were
Thrust upon her
By The Society!

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Oh!
My Grandma, Ma,
Sister and My Wife
When and where
Do you live
For Yourself
In Peace
Enjoying
The Cool Breeze
Atleast
For a while!

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II. THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 (ACT NO.43 OF 2005) AND THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006.

1. Before entering into the moot question raised before various courts as to whether the proceedings under the Domestic Violence Act, 2005 are civil or criminal in nature and under which provision either under Sec.482 of Criminal Procedure Code or Article 227 they can be sought to be quashed or transferred to civil or matrimonial court where more or less similar reliefs are sought by the aggrieved person or respondent, the following thought provoking pinching and clinching observations of the Hon’ble Apex Court in Sathish Chander Ahuja –Vs- Sneha Ahuja (2021) 1 SCC 414 are unavoidable to be quoted and accordingly, it is quoted below:-

“32. The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had marked the step towards the transformation of the status of the women in this country.”

“35. The enactment of Act, 2005 is a milestone for protection of women in this country. The Statement of Objects and Reasons of the Protection of Women from Domestic Violence Bill, 2005 marks the objective which was sought to be achieved by the enactment.”
In view of that the Statement of Object and Reasons is reproduced below:-
“An Act 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.
Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:”
STATEMENT OF OBJECTS AND REASONS
“Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

2. Thus, the above Act seeks to provide for the Protection of Women from the Domestic Violence and the Harassment by way of unlawful Dowry Demands to the women or her relatives. The Act provides for the rights of the women to secure housing and resides in her matrimonial home or shared household, whether or not she has any title or rights in such home or household by enabling the jurisdictional Magistrate to pass a residence order or any other protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence.

3. In one of the earliest cases, Hon’ble Justice V.Ramasubramanian J now adorning the Apex Court Bench in Vandhana –Vs- T.Srikanth and Krishnamachari reported in 2007 (5) CTC 679, in his usual and casual way of expression of his knowledge has clinically dissected the entire Act and the object behind that Act while interpreting “domestic relationship” and “shared household” phrases used in the Act by referring to the Statement of Objects and Reasons and International Conventions and held in favour of the woman by beautifully describing the sufferings of a woman in distress at paras 19 and 20 of the said Judgment reproduced below:-
“19………………….. As seen from the historical background of the Act, the Act was enacted with a view to implement the United Nations Convention, ratified by India way back in 1993 As observed by the Supreme Court in Githa Hariharan and Another v. Reserve Bank of India and another, 1999 (1) CTC 481, any interpretation to a statutory provision should be in conformity with the International Conventions. In paragraph-14 of the said judgment, the Supreme Court held as follows:

“14. The message of international instruments. Convention on the Elimination of All Forms of Discrimination Against Women. 1979 (CEDAW) and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear India is a signatory to CEDAW having accepted and ratified in June. 1993. The interpretation that we have placed on Section 6(a)(supra) gives effect to the principles contained in these instruments. The domestic Courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws when there is no inconsistency between them.”

20. In a society like ours, there are very many situations, in which a woman may not enter into her matrimonial home immediately after marriage. A couple leaving for honeymoon immediately after the marriage and whose relationship gets strained even during honeymoon, resulting in the wife returning to her parental home straight away, may not stand the test of the definition of domestic relationship under Section 2(1) of the Act, if it is strictly construed. A woman in such a case, may not live or at any point of time lived either singly or together with the husband in the shared household”, despite a legally valid marriage followed even by its consummation. It is not uncommon in our society. For a woman in marriage to be sent to her parental home even before consummation of marriage, on account of certain traditional beliefs, say for example, the intervention of the month of Aadi, If such a woman is held to not entitled to the benefit of Section 17 of the Act, on account of a strict interpretation to Section 2(1) of the Act that she did not either live or at any point of time lived together in the shared household, such a woman will be left remediless despite a valid marriage. One can think of innumerable instances of the same aforesaid nature, where the woman might not live at the time of institution of the proceedings or might not have lived together with the husband even for a single day in the shared household A narrow interpretation to Sections 2(1), 2(s) and 17 of the Act, would leave many a woman in distress, without a remedy. Therefore, in my considered view a healthy and correct interpretation to Sections 20) and 2(s) would be that the words “live” or “have at any point of time lived” would include within their purview “the right to live”. In other words, it is not necessary for a woman to establish her physical act of living in the shared household, either at the time of institution of the proceedings or as a thing of the past. If there is a relationship which has legal sanction, a woman in that relationship gets a right to live in the shared household Therefore, she would be entitled to protection under Section 17 of the Act, even if she did not live in the shared household at the time of institution of the proceedings or had never lived in the shared household at any point of time in the past. Her right to protection under Section 17 of the Act, co-exists with her right to live in the shared household and it does not depend upon whether she had marked her physical presence in the shared household or not. A marriage which is valid and subsisting on the relevant date, automatically confers a right upon the wife to live in the shared household as an equal partner in the joint venture of running a family. If she has a right to live in the shared household on account of a valid and subsisting marriage, she is definitely in domestic relationship” within the meaning of Section 2(f) of the Act and her bodily presence or absence from the shared household cannot belittle her relationship as anything other than a domestic relationship. Therefore, irrespective of the fact whether the applicant/plaintiff in this case ever lived in the house of the first respondent/first defendant after 7.2.2007 or not, her marriage to the first respondent/first defendant on 7.2.2007 has conferred a right upon her to live in the shared household. Therefore, the question as to whether the applicant/ plaintiff ever lived in the shared household at any point of time during the period from 7.2.2007 to 13.6.2007 or not, is of little significance.”

4. The above passages of the Hon’ble Judge now adorning the Bench of the Apex Court are quoted here to enable the readers to understand the seriousness and the noble object of protecting the aggrieved woman behind the Act, through the Magistrate though some of the remedies are civil in nature.

5. After the lapse of 9 years from the above meaningful and workable interpretation given in the above case, the Honble Apex Court also in the same line in Kunapareddy –Vs- Kunapareddy Swarna Kuamri (2016) 11SCC 774 gave a wider interpretation to the Act and held that though there is no specific power of amendment not given under the Act whether the proceedings are civil or criminal in nature, amendment power is available to the Magistrate under the Domestic Violence Act. The following passages of the judgment are relevant to be quoted and hence they are quoted;-
“12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind. especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality.”

“16. We understood in this backdrop, it cannot be said that the court dealing with the application under the DV Act has no power and/or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events (escalation of prices in the instant case) or to avoid multiplicity of litigation, court will have the power to permit such an amendment. It is said that procedure is the handmaid of justice and is to come to the aid of the justice rather than defeating it.”

17. What we are emphasising is that even in criminal cases governed by the Code, the court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated.

6. Thus, the proceedings under the Act and the Rules are meant for the remedies to an aggrieved woman on amalgamation of both civil rights and the right to protect themselves against the serious criminal offences.

7. In yet another case called Krishna Bhattarcharjee –Vs- Sarathi Choudhury reported in (2016) 2 SCC 705, the Hon’ble Apex Court gave wider meaning to the phrases “domestic relationship” and “aggrieved person” and held that divorce is different from “judicial separation” when the former severes the matrimonial relationship the latter does not severe and it is more or less a suspension of relationship for a temporary period.

8. Then on the question of limitation the Hon’ble Apex Court while dealing with the application preferred by the wife claiming to get back her stridhan has considered the meaning of “continuing cause of action” and
“continuing offence” and held that the application is within the limitation so far the stridhan is retained by the husband in the following words:-

“32. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realisation of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the of “agr aggrieved the 2005 Act came into force. In the 2005 Act, the definition person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Econotaic abuse” as it has been defined in Section 3(ev) of the said Act has a lar a large canvass Section 12, relevant portion of which has been reproduced hereinbefore. provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal that Section 468 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because the decree of dissolution of marriage. The concept “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.”

9. Paras 2 and 3 of the above judgment clearly depict the role of the Courts in interpretation of the Act and hence they are also reproduced below:-

“2. Prior to the narration of facts which are essential for adjudication of this appeal, we may state that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the 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. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the words “economic abuse”, as the provision would show, has many a facet.”

“3. Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts whereunder the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless “aggrieved person” under the 2005 Act approaches the court under the compelling circumstances. It is the duty of the respondent to nullify the grievance of the aggrieved person is really legally a sound and correct. The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice i done. Before throwing a petition at the threshold. it is obligatory to see that the person aggrieved under such a legislation is not is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.”

10. The Domestic Violence is defined under Sec.3 of the Domestic Violence Act, 2005 as follows:-

“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.”

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 or development of the aggrieved person and includes assault, criminal intimidation and criminal force,

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes:-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) 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

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.”

11. From the definition it is clear that all the instances mentioned under Sec.3 would not only amount to domestic violence but also serious offences under various provisions of the Indian Penal Code, particularly under Sections 319 to 331, 334 to 338 of Indian Penal Code which deal with hurt, Section 339 to 348 dealing with wrongful restraint and wrongful confinement, Sections 349 to 358 dealing with criminal force and assault, Sections 415 to 420 dealing with cheating, Section 421 to 424 dealing with fraudulent deeds and dispositions of property, Section 463 to 465, 467 to 471 dealing with forgery, Section 493 to 498A of Indian Penal Code dealing with the offences related to marriage.
12. Sections 354, 354A, 354B and 354C speak about sexual harassment and assault of use of all criminal force against a Woman.
13. That is the reason as to why the Police Officer under the proviso to Sec.5 is cautioned to proceed with the registration of the criminal case too if serious offence is committed under the Act and the aggrieved person can get the assistance of the Police Officer or Protection Officer and the Service Provider.
14. The Hon’ble Apex Court in Santhosh Bakshi –vs- State of Punjab reported in (2014) 13 SCC 25 at para 13 reminds the duty of the Police Officer under Domestic Violence Act as follows:-
“13. The complaint, if made, by any woman alleging offence under the Protection of Women from Domestic Violence Act, 2005 committed by any member of the family, the matter is to be looked upon seriously. The police without proper verification and investigation cannot submit a report that no case is made out. The investigating agency is required to make proper enquiry not only from the members of the family but also from neighbours, friends and others. After such enquiry, the investigating agency may form a definite opinion and file report but it is for the court to decide finally whether to take cognizance for any offence under any of the provisions of the Act.”

15. The proviso to Section 5 also cautions the possibility of the commission of serious offences by the respondent against the aggrieved persons and for our convenience it is reproduced below:-
“Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.”

16. Sections 8 and 9 speak about the appointment of the Protection Officers and their Duties and Functions.
17. Section 10 speaks about the Service Providers and Section 11 of the Act places a heavy burden on the Central Government and State Government in the following words:-
“Section-10. Service providers.—

(1) Subject to such rules as may be made in this behalf, 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.”

“Section -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 concerned Ministries and Departments dealing with law, affairs including law and order, health and human address issues of domestic violence is established and review of the same is conducted;

(d) protocols for the various Ministries concerned with the of services to women under this Act including the prepared and put in place.”

18. A cursory glance at the above Sections would reveal clearly as to how the Act intends to protect the aggrieved women under the Act.

19. Section 2(a) of the Act defines the aggrieved person in the following words:-

“2. Definitions:- In this Act, unless the context otherwise requires

(a) “aggrieved person” means 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”.

20. That apart Sub Clauses (b) and (g) of Section 9(1) are very relevant to be quoted to find out the nature of the provisions under the Act and the seriousness involved in implementing the Object of the Act.

Sec.9(1) (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”

Sec.9(1) (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”

21. From the above provisions it is clear that the Act is intended to protect the aggrieved person from the bodily injuries and other serious injuries mentioned in the above provisions through the Police Officer of the concerned Police Station.
22. Section 9(1)(f) also is more relevant as it is intended to provide immediate shelter to the aggrieved person in the shelter home in following words:-
Sec.9(1)(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:”

23. Sec.12 (1) speaks about the procedure for obtaining Orders of Reliefs and Sub Clauses (i) and (ii) of Sec.12 are relevant for the issue in the hand and hence they are reproduced below:-

“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 the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.”

24. Sub Clause 1 of Section 12 is General in nature and it speaks about the Power of the Magistrate to grant one or more reliefs under the Act subject to the consideration of any domestic incident report received either from the Protection Officer or the Service Provider. Sub-Clause (2) of Section 12 clearly indicates the nature of the proceedings under the Domestic Violence Act by giving liberty to institute a suit for compensation or damages for the injuries caused by the act of domestic violence committed by the respondent and laying down the procedure for ‘set-off’ notwithstanding anything contained in the Code of Civil Procedure, 1908.

25. In view of two distinct and distinguishable remedies for the aggrieved persons provided under the Sub Clauses 1 and 2 separately the respondent cannot be allowed to contend the nature of proceeding under the Act is purely civil in nature and not criminal warranting severe action by the concerned Magistrate under the respective criminal laws in force, as evidenced from Sections 31 and 32 of the Act read with from I – Column 8. Further, that is the reason as to why Section 28(1) of the Act specifically mentions that the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 where the specific instances of domestic violence are enumerated under those sections apart from Sec.3 are governed by the Code of Criminal Procedure, 1973.

26. The liberty given to the Magistrate under sub-clause (2) of Section 26 to follow his own procedure is meant only for Sec.12 and 23 (2) of the Act and not for the proceedings under other provisions of the Act mentioned in sub-clause (1) of Section 28. Moreover on the basis of such a liberty the Magistrate cannot adopt any procedure as he likes other than the procedure prescribed by the code of Criminal Procedure, 1973 or more vulnerable to protect the interest and right of the victim woman. This is further made clear from Rule 12 of the Domestic Violence Rules, 2006.
27. Further, Section 26 (2) clearly points out the importance of the Act and the machineries provided under the Act by declaring that the relief available under Sections 18 to 22 may also be sought in any legal forum before a Civil Court, Family Court or a Criminal Court in addition to what is provided under the Domestic Violence Act. Sub-Section (2) of Section 26 thus clears the maze that the proceedings under Act are neither civil nor matrimonial nor criminal and they are special amalgamating both civil and criminal under the common roof to provide a speedy to an aggrieved person.

28. Rule 9 of the Domestic Violence Rules, 2006 makes the proceedings under the Domestic Violence Act super special by providing one more effective and speedy remedy than that of civil or criminal or matrimonial remedy and the same is reproduced below:-
“Rule 9:- Action to be taken in cases of emergency.—If the Protection Officer or a service provider receives reliable information through e-mail or a telephone call or the like either from the aggrieved person or from any person who has reason to believe that an act of domestic violence is being or is likely to be committed and in a such an emergency situation, the Protection Officer or the service provider, as the case may be, shall seek immediate assistance of the police who shall accompany the Protection Officer or the service provider, as the case may be, to the place of occurrence and record the domestic incident report and present the same to the Magistrate without any delay for seeking appropriate orders under the Act.”

29. That apart, Rule 10(1) (f) of the Domestic Violence Rules, 2006 authorizes the Protection Officers to take the assistance of the Police, if required to confiscate any weapon involved in the alleged domestic violence.

30. Rule 15 lays down a detailed procedure for the violation of the Protection or Interim Protection Order and such a procedure empowers the Magistrate to sentence the respondent for the violation of such order to the extent of 1 year or fine or both under Section 31 of the Act and the Rule 15 is reproduced below to find out the nature of the proceedings:-

“Rule 15:- Breach of Protection Orders.—
(1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.

(2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.

(3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.

(4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the Police, if she so chooses.

(5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.

(6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 (2 of 1974).

(7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.

(8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.

(9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include—

(a) an order restraining the accused from threatening to commit or committing an act of domestic violence;

(b) an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;

(c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;

(d) an order prohibiting the possession or use of firearm or any other dangerous weapon;

(e) an order prohibiting the consumption of alcohol or other drugs;

(f) any other order required for protection, safety and adequate relief to the aggrieved person.”

31. Sections 18 and 19 speak about the power of the Magistrate to pass Protection Orders (Section 18) and Residence Order (Section 19) and the nature and manner of those orders as mentioned under the above two sections would clearly demonstrate that the nature of proceedings under the Act are not at all the civil proceedings.

32. For our convenience both the Sections are reproduced below:-
“Section- 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.

“Section. 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—

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”

33. Rule 10 of the Domestic Violence Rules, 2006 precribes the duties of the Protection Officers in the following words which would clearly indicate the nature of the proceedings under the Domestic Violence Act:-
“Rule-10. Certain other duties of the Protection Officers.—

(1) The Protection Officer, if directed to do so in writing, by the Magistrate shall—

(a) conduct a home visit of the shared household premises and make preliminary enquiry if the court requires clarification, in regard to granting ex-parte interim relief to the aggrieved person under the Act and pass an order for such home visit;

(b) after making appropriate inquiry, file a report on the emoluments, assets, bank accounts or any other documents as may be directed by the court;

(c) restore the possession of the personal effects including gifts and jewellery of the aggrieved person and the shared household to the aggrieved person;

(d) assist the aggrieved person to regain custody of children and secure rights to visit them under his supervision as may be directed by the court;

(e) assist the court in enforcement of orders in the proceedings under the Act in the manner directed by the Magistrate, including orders under section 12, section 18, section 19, section 20, section 21 or section 23 in such manner as may be directed by the court;

(f) take the assistance of the police, if required, in confiscating any weapon involved in the alleged domestic violence.

(2) The Protection Officer shall also perform such other duties as may be assigned to him by the State Government or the Magistrate in giving effect to the provisions of the Act and these rules from time to time.

(3) The Magistrate may, in addition to the orders for effective relief in any case, also issue directions relating general practice for better handling of the cases, to the Protection Officers within his jurisdiction and the Protection Officers shall be bound to carry out the same.”

34. Thus, the whole object of the Act and the Rules is to protect the poor, hapless and hopeless women from the domestic violence and sections 18 and 19 of the Domestic Violence Act clearly demonstrate the nature of the powers conferred on the Magistrate to act quickly and save the women from the various acts of domestic violence which on perusal would make us to understand that they all are criminal in nature.
“Section- 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.

“Section- 19. Residence orders.—