Domestic Violence

Section 2(f), domestic relationship. A relationship between two persons who live or have at any point of time lived together in a shared household, related by consanguinity, marriage, or THROUGH A RELATIONSHIP IN THE NATURE OF MARRIAGE, adoption, or as family members living together as a joint family. The third limb brings unmarried partners within the Act, and it is the provision that made the Act controversial.

Section 2(q), respondent. Any ADULT MALE person who is or has been in a domestic relationship with the aggrieved person and against whom relief is sought, with a proviso that an aggrieved wife or female living in a relationship in the nature of marriage may also complain against a RELATIVE of the husband or male partner. So a mother-in-law or sister-in-law can be a respondent through the proviso.

Section 2(s), shared household. A household where the aggrieved person lives or at any stage has lived in a domestic relationship, singly or with the respondent, whether owned or tenanted jointly or by either of them, in which either has any right, title, interest or equity, and INCLUDING a household belonging to the joint family of which the respondent is a member, irrespective of whether either has any right, title or interest in it.

Sections 2(b) to 2(t), the rest. Child, compensation order, custody order, domestic incident report, dowry with the meaning in the Dowry Prohibition Act 1961, Magistrate as the Judicial Magistrate of the first class or Metropolitan Magistrate where the woman resides or the respondent resides or the violence took place, medical facility, monetary relief, notification, prescribed, Protection Officer, protection order, residence order, service provider and shelter home.

Section 3, domestic violence. Any act, omission, commission or conduct of the respondent which harms or injures or endangers the health, safety, life, limb or well-being, mental or physical, of the aggrieved person, or tends to do so, including PHYSICAL, SEXUAL, VERBAL AND EMOTIONAL and ECONOMIC abuse; or harasses her or harms her to coerce her or a person related to her to meet an unlawful demand for dowry or other property; or threatens her by such conduct; or otherwise injures or harms her.

The four explanations in section 3 are the examinable part. Physical abuse: conduct causing bodily pain, harm or danger to life, limb or health, including assault, criminal intimidation and criminal force. Sexual abuse: any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman. Verbal and emotional abuse: insults, ridicule, humiliation and name-calling, INCLUDING RIDICULE FOR NOT HAVING A CHILD OR A MALE CHILD, and repeated threats to cause physical pain to a person she is interested in. ECONOMIC ABUSE: deprivation of economic or financial resources to which she is entitled by law or custom or requires out of necessity, including household necessities, stridhan, property, rent for the shared household and maintenance; disposal of household effects or alienation of assets in which she has an interest; and prohibition or restriction of continued access to resources or facilities she is entitled to use by virtue of the domestic relationship, INCLUDING ACCESS TO THE SHARED HOUSEHOLD.

Explanation II. In determining whether any conduct constitutes domestic violence, the overall facts and circumstances shall be taken into consideration.

The machinery

Sections 4 and 5. Any person who has reason to believe that an act of domestic violence has been or is being or is likely to be committed may give information to the Protection Officer, and no liability attaches to an informant acting in good faith. A police officer, Protection Officer, service provider or Magistrate who receives a complaint shall inform the aggrieved person of her right to apply for orders, of the availability of services, of free legal services under the Legal Services Authorities Act 1987 and of her right to file a complaint under section 498A of the Penal Code, now section 85 of the Sanhita.

Sections 6 and 7. A shelter home shall provide shelter on request by the aggrieved person or the Protection Officer or a service provider on her behalf; a medical facility shall provide medical aid.

Sections 8 and 9, the Protection Officer. The State Government shall appoint such number of Protection Officers in each district as it considers necessary, PREFERABLY WOMEN, with the prescribed qualifications and a minimum tenure of three years. The Officer assists the Magistrate; makes a DOMESTIC INCIDENT REPORT on receipt of a complaint and forwards copies to the police station and to the service providers; makes an application for a protection order if the woman so desires; ensures free legal aid; maintains a list of service providers, shelter homes and medical facilities; provides safe shelter and gets a medical examination done; ensures the order of monetary relief is complied with; and performs such other duties as prescribed.

Section 10, service providers. A voluntary association registered under the Societies Registration Act or a company registered under the Companies Act with the object of protecting the rights and interests of women may register as a service provider, and may record a domestic incident report, get a medical examination done and get the woman to a shelter home, and no suit or prosecution lies against it for anything done in good faith.

Section 11, duties of Government. Wide publicity through the media at regular intervals; periodical sensitisation and awareness training for judicial officers, police officers and members of the services; coordination between the Home, Law, Human Resource Development, Health and other departments; and protocols for the various ministries concerned.

Going to court

Section 12, the application. The aggrieved person, a Protection Officer, or any other person on her behalf may apply to the Magistrate for one or more reliefs. Before passing an order the Magistrate shall consider any domestic incident report. The application may include compensation or damages without prejudice to a suit, with a set-off provision. The first date of hearing shall not ordinarily be beyond THREE DAYS from receipt of the application, and the Magistrate shall endeavour to dispose of the application within SIXTY DAYS of the first hearing.

Sections 13 to 16. Service of notice within two days or such further time as the Magistrate allows; the power to direct the parties singly or jointly to undergo COUNSELLING; the assistance of a person, preferably a woman, engaged in promoting family welfare; and proceedings IN CAMERA where either party so desires and the Magistrate considers it appropriate.

Section 17, the right to reside. Notwithstanding anything in any other law, 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 it; and she shall not be evicted or excluded from it or any part of it save in accordance with the procedure established by law.

Section 17 is the heart of the Act. It is a POSSESSORY right, not an ownership right, and it answers a specific problem: Indian law recognises no community of property between spouses, so a woman who has contributed unpaid work for twenty years owns nothing and can be put on the street.

The five orders

Section 18, protection order. After hearing both sides and on being PRIMA FACIE satisfied that domestic violence has taken place or is likely to, the Magistrate may prohibit the respondent from committing or abetting domestic violence; from entering her place of employment or, if the aggrieved person is a child, its school or any place she frequents; from attempting to communicate with her in any form, personal, oral, written, electronic or telephonic; from alienating assets or operating bank lockers or accounts, including her STRIDHAN, without the Magistrate's leave; from causing violence to her dependants, relatives or anyone assisting her; and from committing any other act specified.

Section 19, residence order. The Magistrate may restrain the respondent from dispossessing or disturbing her possession of the shared household WHETHER OR NOT he has any legal or equitable interest in it; DIRECT HIM TO REMOVE HIMSELF from the shared household; restrain him or his relatives from entering the portion she occupies; restrain him from alienating, disposing of or encumbering it; restrain him from renouncing his rights in it without leave; or direct him to secure alternate accommodation of the same level or to pay rent for it. Proviso: no order to remove himself may be passed against A WOMAN. The Magistrate may impose additional conditions, direct the return of stridhan or other property, and direct the police to give protection.

Section 20, monetary relief. To meet expenses incurred and losses suffered, including loss of earnings, medical expenses, loss from destruction or removal of property, and MAINTENANCE for her and her children, in addition to or under an order of maintenance under the criminal procedure law. The relief shall be adequate, fair and reasonable and CONSISTENT WITH THE STANDARD OF LIVING to which she is accustomed, may be a lump sum or monthly, and on default the Magistrate may direct the respondent's employer or debtor to pay directly or to deposit in court.

Section 21, custody order. At any stage of the hearing, temporary custody of any child to the aggrieved person or the applicant on her behalf, with arrangements for the respondent's visits, and the Magistrate SHALL refuse a visit if it may be harmful to the child.

Section 22, compensation order. In addition to the other reliefs, compensation and damages for injuries INCLUDING MENTAL TORTURE AND EMOTIONAL DISTRESS.

Section 23. Interim and ex parte orders, on an affidavit disclosing that the respondent is committing, has committed or is likely to commit domestic violence.

Sections 24 to 28. Copies of orders free of cost to the parties, the police and any service provider; orders remain in force until the aggrieved person applies for discharge, and may be altered on a change of circumstances; relief under this Act may be sought in any other legal proceeding before a civil, family or criminal court; jurisdiction of the Magistrate where she resides temporarily or otherwise, where the respondent resides or where the cause of action arose; and the procedure of the criminal procedure law, with a power in the court to lay down its own procedure for applications under sections 12 and 23(2).

Offence, and the rest

Section 29, appeal. To the Court of Session within thirty days of service of the order.

Section 30. Protection Officers and members of service providers are deemed public servants.

Section 31, the offence. A breach of a protection order or interim protection order by the respondent is an offence, punishable with up to ONE YEAR or a fine up to twenty thousand rupees or both. It shall as far as practicable be tried by the Magistrate who passed the order, and while framing charges the Magistrate may also frame charges under section 498A of the Penal Code, now section 85 of the Sanhita, or under the Dowry Prohibition Act 1961 if the facts disclose those offences.

Section 32, cognizance and proof. The offence under section 31(1) is COGNIZABLE AND NON-BAILABLE, and upon THE SOLE TESTIMONY of the aggrieved person the court may conclude that the offence has been committed.

Sections 33 and 34. A Protection Officer who fails or refuses to discharge his duties as directed by the Magistrate without sufficient cause is punishable with up to one year or a fine up to twenty thousand rupees or both; and no court shall take cognizance of that offence except on a complaint by the Government or a Government officer, with prior sanction.

Sections 35, 36 and 37. No suit, prosecution or other legal proceeding against the Protection Officer for anything done in good faith; the Act is in addition to and not in derogation of any other law; and the Central Government may make rules, laid before Parliament.

The criticisms

The respondent must be an adult MALE. Section 2(q) says so, and only the proviso lets a woman relative be joined. A woman abused by a woman in the same household is largely outside the Act.

The right to reside is not a right to own. Section 17 gives possession; it creates no interest, and the woman is still a person with no assets after twenty years of unpaid work.

The Protection Officer is the weak link. The Act is designed around an officer whom section 8 leaves the State to appoint, and in most States the post is held additionally by an officer of the child development department with a district to cover.

The sixty-day timeline is aspirational. Section 12(5) says "shall endeavour", and the practice is a great deal longer.

And the "relationship in the nature of marriage" is contested. It gave the Act its reach beyond marriage and it is the provision most often argued about; a candidate should note that the tests applied to it are judicial rather than statutory.

A worked example

A woman lives with her husband in a house owned by her father-in-law. The husband stops giving her money, sells her jewellery, changes the lock on her room and tells her to leave. There is no assault.

Is it domestic violence with no violence? Yes. Section 3 Explanation I(iv), economic abuse: deprivation of financial resources she requires out of necessity, disposal of her STRIDHAN, and prohibition of continued access to the shared household. The verbal and emotional limb may also apply.

Is the house a shared household? Yes. Section 2(s) includes a household belonging to the joint family of which the respondent is a member, irrespective of whether either of them has any right, title or interest in it.

Who is the respondent? The husband under section 2(q); the father-in-law and mother-in-law may be joined under the proviso, as relatives of the husband.

What may she ask for? A protection order under section 18 restraining alienation of assets and her stridhan and any further exclusion; a residence order under section 19(a) restraining dispossession and under 19(f) requiring alternate accommodation or rent, and, if necessary, under 19(b) directing the HUSBAND to remove himself, though not the mother-in-law, who is a woman; monetary relief under section 20 for maintenance and the value of the jewellery, at a level consistent with the standard of living she is accustomed to; and compensation under section 22.

How fast? Section 12(4): first hearing ordinarily within three days. Section 23: an interim or ex parte order at once on affidavit.

And if he breaks the order? Section 31: up to one year or twenty thousand rupees or both; section 32: cognizable, non-bailable, and provable on her sole testimony.

What this does NOT mean

It does not mean the Act creates a criminal offence of domestic violence. The only offence is the breach of a protection order under section 31, and of a Protection Officer's duty under section 33. The rest is civil.

It does not mean it displaces the criminal law. Section 36 preserves it, and section 31(3) lets the Magistrate frame charges under the cruelty provision or the Dowry Prohibition Act on the same facts.

It does not mean the woman must be married. Section 2(f) covers a relationship in the nature of marriage, and section 2(a) covers a woman who HAS BEEN in a domestic relationship.

And it does not mean she must leave. That is the point of section 17 and section 19: the woman stays and the violence goes.

Quick revision

Act 43 of 2005, in force 26 October 2006, CIVIL. s.2(a) aggrieved person, any woman who is or HAS BEEN in a domestic relationship. s.2(f) domestic relationship, including a relationship IN THE NATURE OF MARRIAGE. s.2(q) respondent, an adult MALE, with the proviso for a relative of the husband or male partner. s.2(s) shared household, including the respondent's joint family house whether or not either has an interest. s.3 domestic violence: physical, sexual, verbal and emotional, and ECONOMIC abuse, and harassment for dowry, with four Explanations and Explanation II on overall circumstances.

ss.4 to 7 information, duties of police, service providers and Magistrate, shelter homes, medical facilities. ss.8 and 9 Protection Officers, preferably women, three-year tenure, domestic incident report. s.10 service providers. s.11 duties of Government. s.12 application, first hearing in three days, endeavour to dispose in sixty. ss.13 to 16 notice in two days, counselling, welfare expert, in camera. s.17 RIGHT TO RESIDE whether or not she has any title. s.18 protection order. s.19 residence order, including directing the respondent to remove himself, but never a woman. s.20 monetary relief consistent with her standard of living, recoverable from an employer or debtor. s.21 custody. s.22 compensation for mental torture and emotional distress. s.23 interim and ex parte. ss.24 to 28 free copies, duration and alteration, relief in other proceedings, jurisdiction, procedure. s.29 appeal to the Court of Session in thirty days. s.30 public servants. s.31 breach of a protection order, one year or twenty thousand rupees, charges may also be framed under the cruelty provision. s.32 COGNIZABLE, NON-BAILABLE, and provable on her SOLE TESTIMONY. ss.33 to 37 the Protection Officer's default, sanction, good faith, not in derogation, and rules.

Test yourself

1. Why was a civil statute needed when section 498A already existed? Because a prosecution for cruelty produces an arrest and, for the woman, no roof, no money and no order about her children. What she needs is an order: somewhere to live, maintenance, a direction that the man keep away and interim custody, none of which a criminal court trying a cruelty case can give.

2. Define economic abuse under section 3. Deprivation of economic or financial resources to which she is entitled under law or custom or which she requires out of necessity, including household necessities, stridhan, property, rent for the shared household and maintenance; disposal of household effects or alienation of assets in which she has an interest; and prohibition or restriction of continued access to resources or facilities she is entitled to use by virtue of the domestic relationship, including access to the shared household.

3. What does section 17 give, and what does it not give? It gives every woman in a domestic relationship the right to RESIDE in the shared household whether or not she has any right, title or beneficial interest in it, and forbids her eviction save in accordance with the procedure established by law. It gives possession only; it creates no ownership and no interest in the property.

4. List the five orders a Magistrate may make and their sections. Protection order, section 18; residence order, section 19; monetary relief, section 20; custody order, section 21; and compensation order, section 22, with interim and ex parte orders under section 23.

5. What is the only substantive offence in the Act, and how is it proved? The breach by the respondent of a protection order or interim protection order, under section 31, punishable with up to one year or a fine up to twenty thousand rupees or both. Under section 32 it is cognizable and non-bailable, and the court may conclude that it has been committed upon the sole testimony of the aggrieved person.