The Five Orders the Magistrate Can Pass

The proviso is examinable and often missed: no order under clause (b) shall be passed against any person who is a woman. So a Magistrate may order the husband out of the house; he may not order the mother-in-law out.

The rest of section 19

Sub-section (2). The Magistrate may impose any additional conditions or pass any other direction reasonably necessary to protect or provide for the safety of the aggrieved person or any child of hers.

Sub-sections (3) and (4). He may require the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence; and such an order is deemed to be an order under Chapter VIII of the Code of Criminal Procedure 1973 and dealt with accordingly.

Sub-section (5). While passing an order under sub-sections (1), (2) or (3), the court may direct the officer in charge of the nearest police station to give her protection, or to assist her or the person applying on her behalf in implementing the order.

Sub-section (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.

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

Sub-section (8). He may direct the respondent to return to her possession her stridhan, or any other property or valuable security to which she is entitled.

Sub-section (8) is a small provision that answers a large practical problem. A woman who leaves usually leaves her jewellery behind, and recovering stridhan by an ordinary suit takes years. Here the Magistrate can simply order it returned.

Section 20: monetary reliefs

Section 20(1) provides that while disposing of an application the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of hers as a result of the domestic violence, and such relief may include, but is not limited to:

(a) the loss of earnings; (b) the medical expenses; (c) the loss caused by the destruction, damage or removal of any property from her control; and (d) the maintenance for her and her children, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973 or any other law.

Sub-section (2). The relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

Sub-section (3). The Magistrate may order an appropriate lump sum payment or monthly payments of maintenance.

Sub-section (4). He shall send a copy of the order to the parties and to the officer in charge of the police station where the respondent resides.

Sub-section (5). The respondent shall pay within the period specified in the order.

Sub-section (6). On failure to pay, the Magistrate may direct the employer or a debtor of the respondent to pay directly to the aggrieved person, or to deposit with the court, a portion of the wages, salary or debt due to the respondent, to be adjusted against the monetary relief.

Two points earn marks. The standard in sub-section (2) is not subsistence but the standard of living she is accustomed to, which is a higher and quite deliberate test. And sub-section (6) is attachment of wages at source, which is the most effective enforcement provision in the whole Act, and should be read with the Protection Officer's duty in section 9(1)(h) to see that the order is executed.

Note also that clause (d) allows an order in addition to maintenance under the criminal remedy, so this Act does not displace that jurisdiction.

Section 21: custody orders

Notwithstanding anything contained in any other law, the Magistrate may, at any stage of the hearing of an application for a protection order or for any other relief under the Act, grant temporary custody of any child to the aggrieved person or to the person applying on her behalf, and specify, if necessary, the arrangements for visits by the respondent.

The proviso provides that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child, he shall refuse to allow such a visit.

Three things to say about it.

It is temporary custody only. Permanent custody is for the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Magistrate here is holding the position while the violence is dealt with.

It may be granted at any stage, including before the main application is decided.

The proviso is mandatory. Where visits would harm the child, the Magistrate has no discretion: he shall refuse.

Section 22: compensation orders

In addition to other reliefs, the Magistrate may, on an application by the aggrieved person, direct the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence.

Section 20 and section 22 distinguished

This is a favourite examination point and the distinction is clean.

Put shortly, section 20 covers what the violence cost her, and section 22 covers what it did to her.

Section 23: interim and ex parte orders

Sub-section (1). In any proceeding before him under the Act, the Magistrate may pass such interim order as he deems just and proper.

Sub-section (2). If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed, an act of domestic violence, or that there is a likelihood that he may commit one, he may grant an ex parte order on the basis of the affidavit of the aggrieved person, in the prescribed form, under section 18, section 19, section 20, section 21 or section 22.

Section 23 is what makes the other five sections useful. A woman applying for a residence order because she is about to be put out of the house cannot wait for the respondent to be served, to appear and to file a reply. On her affidavit alone, and on a prima facie disclosure, the Magistrate may make any of the five orders at once and without notice.

The five orders in one table

A worked example

Rekha lives with her husband and his parents in a house owned by her father-in-law. Her husband beats her, has taken her jewellery, has stopped paying anything for her and their daughter, and has told her to get out. She goes to the Magistrate. She is afraid he will act before the hearing.

Can she get an order before he is heard? Section 23(2): if the Magistrate is satisfied on an affidavit in the prescribed form that the respondent is committing, has committed or is likely to commit an act of domestic violence, he may grant an ex parte order under sections 18 to 22.

Stopping the violence. Section 18: a protection order prohibiting him from committing domestic violence, from entering her place of employment, from attempting to communicate with her, and from alienating any assets, including her stridhan and joint bank lockers or accounts.

Staying in the house. Section 19: a residence order restraining him from dispossessing or disturbing her possession of the shared household, "whether or not he has any legal or equitable interest" in it. It is a shared household even though her father-in-law owns it, because it belongs to the joint family of which the respondent is a member.

Can he be sent out instead? Yes: the Magistrate may direct the respondent to remove himself from the shared household. But by the proviso no such order may be passed against any woman, so her mother-in-law cannot be ordered out.

Money. Section 20: monetary relief for loss of earnings, medical expenses, loss caused by destruction, damage or removal of property, and maintenance, which must be adequate, fair and reasonable and consistent with the standard of living to which she is accustomed. If he does not pay, the Magistrate may direct his employer or a debtor to pay her directly.

The daughter. Section 21: temporary custody, with visiting arrangements, and the Magistrate shall refuse a visit if he is of opinion that it may be harmful to the child.

And for what she has suffered. Section 22: compensation and damages for the injuries, including mental torture and emotional distress.

Must she choose between these? No. Section 12 lets her seek one or more of the reliefs, and the Magistrate may grant them together.

What it does NOT mean

The five reliefs are not alternatives. They may be granted together, and section 12 lets her seek one or more.

A protection order does not require violence to have happened. It may be made where the Magistrate is satisfied that domestic violence has taken place or is likely to take place.

A residence order does not turn on ownership. She may be kept in the shared household whether or not he owns it.

And it cannot be made against a woman. The proviso to section 19(1) forbids an order directing any woman to remove herself from the shared household.

Monetary relief is not confined to maintenance. It covers loss of earnings, medical expenses, loss caused by destruction, damage or removal of property, and maintenance, and it must be adequate, fair and reasonable and consistent with the standard of living to which she is accustomed.

A custody order under section 21 is not permanent custody. It is temporary, at any stage of the hearing.

Compensation under section 22 is not the same as monetary relief. It is damages for injuries, including mental torture and emotional distress.

An ex parte order is not made on suspicion. It is made on an affidavit in the prescribed form disclosing that the respondent is committing or has committed or is likely to commit domestic violence.

Quick revision

• s.18, protection order: prohibiting the respondent from committing domestic violence, aiding or abetting it, entering her place of employment or, if she is a child, her school, attempting to communicate with her, alienating any assets including her stridhan or joint bank lockers or accounts, causing violence to her dependants or relatives, or committing any other act specified. It may be made where violence has taken place or is likely to.
• s.19, residence order: restraining dispossession; directing the respondent to remove himself, but never a woman; restraining him or his relatives from entering her portion; restraining alienation or renunciation of the shared household; restraining him from giving up rights in it; or directing him to secure alternative accommodation or pay rent. The court may impose additional conditions, order police protection, require a bond, and direct the return of her stridhan.
• s.20, monetary relief: loss of earnings, medical expenses, loss from destruction, damage or removal of property, and maintenance, adequate, fair, reasonable and consistent with her standard of living, as a lump sum or monthly; failing payment, the Magistrate may direct her employer or debtor to pay her directly.
• s.21, custody order: temporary custody of children, with visiting arrangements, and a harmful visit refused.
• s.22, compensation order: damages for injuries, including mental torture and emotional distress.
• s.23: interim orders as the Magistrate thinks just, and ex parte orders on an affidavit.

Test yourself

1. Name the five reliefs the Magistrate may grant. A protection order under section 18; a residence order under section 19; monetary relief under section 20; a custody order under section 21; and a compensation order under section 22. More than one may be granted.

2. What can a residence order do, and what can it never do? It may restrain the respondent from dispossessing or disturbing her possession of the shared household; direct him to remove himself from it; restrain him or his relatives from entering the portion she occupies; restrain alienation or renunciation of the household; restrain him from giving up his rights in it; or direct him to secure alternative accommodation or pay rent for it. It can never direct a woman to remove herself from the shared household.

3. What may monetary relief cover? The loss of earnings, medical expenses, loss caused by the destruction, damage or removal of property from her control, and maintenance for her and her children, which must be adequate, fair and reasonable and consistent with the standard of living to which she is accustomed. It may be a lump sum or a monthly payment, and on default the Magistrate may direct her employer or a debtor of the respondent to pay her directly.

4. May the Magistrate act before hearing the respondent? Yes. Under section 23 he may pass such interim order as he deems just and proper, and, if satisfied on an affidavit in the prescribed form that the respondent is committing, has committed or is likely to commit an act of domestic violence, may grant an ex parte order under sections 18, 19, 20, 21 or 22.