Proceedings before the Magistrate

Section 13(2) provides that a declaration of service made by the Protection Officer, in the prescribed form, shall be proof that the notice was served, unless the contrary is proved.

Both sub-sections exist to stop the commonest way of defeating an urgent application, which is to avoid service. The Protection Officer serves it, not the applicant; he has two days; and his declaration proves service unless it is disproved.

Section 14: counselling

Section 14(1) allows the Magistrate, at any stage of the proceedings, to direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with a member of a service provider possessing the prescribed qualifications and experience in counselling.

Section 14(2) provides that where such a direction is given, the Magistrate shall fix the next date of hearing within a period not exceeding two months.

Read the two sub-sections together and notice what the second is for. Counselling in a matrimonial case is a well-known way of losing a year. Sub-section (2) caps the delay at two months.

Note also "either singly or jointly". The Magistrate need not order the woman into a room with the man she says has been violent, and the section is drafted so that he does not have to.

Section 15: assistance of a welfare expert

In any proceeding the Magistrate may secure the services of any person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare, for the purpose of assisting him in discharging his functions.

A short section with a practical purpose. A Magistrate exercising criminal jurisdiction is not trained in family welfare, and section 15 lets him bring in somebody who is.

Section 16: proceedings in camera

If the Magistrate considers that the circumstances of the case so warrant, and if either party so desires, he may conduct the proceedings in camera.

Compare this with section 22 of the Hindu Marriage Act and section 33 of the Special Marriage Act, where in camera proceedings are mandatory in every case. Here it is discretionary and requires a party to ask. That difference is worth a line: this is a proceeding before a criminal court, where open justice is the norm, and the Act adjusts rather than displaces it.

Section 17: the right to reside in a shared household

This is the section the Act is remembered for.

Section 17(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.

Section 17(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.

Why this changed things

Before 2005, a woman's right to stay in the house she lived in depended on property law. If the house belonged to her husband's father, or to the joint family, or was tenanted in her husband's name, she had no interest in it and could be put out. The remedies she had, maintenance and matrimonial relief, were about money and status, not about a roof.

Section 17 detaches the right to reside from ownership entirely. It is a right that belongs to every woman in a domestic relationship, and it operates notwithstanding any other law, which means the ordinary law of property and tenancy gives way to it.

Read it with the definition of shared household in section 2(s), which expressly includes a household belonging 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 it. Between them, section 2(s) and section 17 cover the ordinary Indian household in which the daughter-in-law owns nothing and her husband may own nothing either.

The limits

It is a right to reside, not a right of ownership. Section 17 gives her no title, no share and nothing to sell or bequeath. It gives her the right to be there.

It runs against the respondent. Sub-section (2) forbids eviction or exclusion by the respondent.

"Save in accordance with the procedure established by law." She may still be removed by a lawful process. What she may not be is put out by the respondent's own act.

The house must be a shared household. She must live or at some stage have lived in it in a domestic relationship. A house she has never lived in is not a shared household, however closely connected to the family.

Section 17 and section 19

Section 17 states the right. Section 19 gives the Magistrate power to make a residence order enforcing it: restraining dispossession, directing the respondent to remove himself, restraining him or his relatives from entering the portion she occupies, restraining alienation of the household, or directing him to secure alternative accommodation of the same level or to pay rent for it. Section 19 is in the next chapter, and the two must be answered together: a question that asks about the right to reside is asking about both.

A worked example

Sunita is beaten by her husband in his parents' house, which belongs to his father. She goes to a Protection Officer, who makes a domestic incident report and applies to the Magistrate on her behalf. She wants to stay in the house and wants him restrained. She has also filed a civil suit for compensation.

Who may apply? Section 12(1): the aggrieved person, or a Protection Officer, or any other person on her behalf, may present an application to the Magistrate seeking one or more reliefs under the Act.

Must the Magistrate look at the report? Yes. Before passing any order he shall take into consideration any domestic incident report received from the Protection Officer or the service provider.

She has claimed compensation twice. Section 12(1) proviso: where she has already obtained compensation in a civil suit, the amount is to be set off against the order under the Act, so nothing is paid twice.

How fast? Section 12(4): the Magistrate shall fix the first date of hearing ordinarily within three days of receipt of the application. Section 12(5): he shall endeavour to dispose of it within sixty days of the first hearing.

How is notice served? Section 13: by the Protection Officer, within two days or such further reasonable time as the Magistrate allows, and his declaration of service is prima facie proof.

Counselling? Section 14: at any stage the Magistrate may direct the parties, singly or jointly, to undergo counselling with a service provider, and shall fix the next hearing within two months.

Any other assistance? Section 15: he may secure the assistance of a person, preferably a woman, engaged in promoting family welfare.

Is the hearing private? Section 16: proceedings may be held in camera if the Magistrate considers that the circumstances warrant it and either party so desires.

Can she be put out of the house? No. Section 17(1): every woman in a domestic relationship has the right to reside in the shared household, whether or not she has any right, title or beneficial interest in it. Section 17(2): she shall not be evicted or excluded except in accordance with the procedure established by law.

What it does NOT mean

The application is not hers alone to make. A Protection Officer or any other person on her behalf may make it.

She need not choose one relief. She may seek one or more.

Compensation is not recoverable twice. The proviso to section 12(1) requires a set-off.

The three-day and sixty-day periods are not jurisdictional. The first hearing is "ordinarily" within three days, and the Magistrate shall "endeavour" to dispose of the case within sixty.

Counselling is not compulsory before an order. It may be directed at any stage, and the Act's reliefs are not conditional on it.

In camera is not automatic. It requires both that the Magistrate thinks the circumstances warrant it and that a party desires it.

Section 17 does not give her ownership. It gives a right to reside, whatever the title, and forbids eviction except by the procedure established by law.

Quick revision

• s.12: an application by the aggrieved person, the Protection Officer or any person on her behalf, for one or more reliefs; the Magistrate must consider the domestic incident report; compensation already obtained in a civil suit is set off; the first hearing ordinarily within three days; disposal endeavoured within sixty days of it.
• s.13: service by the Protection Officer within two days, his declaration being prima facie proof.
• s.14: counselling at any stage, singly or jointly, with the next hearing within two months. s.15: assistance of a person, preferably a woman, engaged in promoting family welfare.
• s.16: proceedings in camera where the Magistrate thinks the circumstances warrant it and either party desires it.
• s.17: every woman in a domestic relationship has the right to reside in the shared household, whether or not she has any right, title or beneficial interest in it, and she shall not be evicted or excluded except in accordance with the procedure established by law.

Test yourself

1. Who may apply to the Magistrate under the Act? The aggrieved person, or a Protection Officer, or any other person on her behalf, seeking one or more reliefs under the Act.

2. What must the Magistrate consider before passing an order? Any domestic incident report received by him from the Protection Officer or the service provider.

3. What time limits does section 12 lay down? The Magistrate shall fix the first date of hearing ordinarily within three days from the date of receipt of the application, and shall endeavour to dispose of every application within sixty days of the first hearing.

4. What is the right to reside in a shared household? By section 17, every woman in a domestic relationship has the right to reside in the shared household, whether or not she has any right, title or beneficial interest in it; and she shall not be evicted or excluded from it or any part of it by the respondent except in accordance with the procedure established by law.