Domestic Violence laws
If you, being the aggrieved person, have reason to believe that an act of domestic violence has been committed or is being committed or is likely to be committed, you may give information about it to the concerned Protection Officer. You may so inform the Protection Officer of the concerned area either orally or in writing. (See. 4). You, as an aggrieved person, may even inform Service providers. As to who are service providers, the Act provides that a registered voluntary association or a registered company, whose objective is to protect rights and interests of women by lawful means, shall be the Service providers.
Protection Officer is an Officer appointed by the State Government in each district. As far as possible, a woman is to be Protection Officer.
What Steps are to be taken on Information or Complaint of Domestic Violence
In case you or anyone on your behalf, orally informs the Protection Officer about act of domestic violence, the Protection Officer shall reduce the same into writing. Then, you or the person, who so informs the Protection Officer, is supposed to sign that information which is called a complaint.
If you are aggrieved person, whenever a Protection Officer receives a complaint of domestic violence it is the duty of the Protection Officer to inform you that you have a right to make an application for relief. This relief may be in the nature of any of the following orders:
(i) a protection order;
(ii) order for monetary relief;
(iii) custody order;
(iv) residence order;
(v) compensation order;
(vi) more than any of the aforesaid orders.
When incident of domestic violence takes place even in presence of a Protection Officer, it is his duty to apprise the aggrieved person of the aforesaid rights.
Remember, that aforesaid duty to inform the aggrieved person of the above rights is not only of Protection Officer, but also of police or service provider or Magistrate who receives a complaint of domestic violence.
Aggrieved person is also to be informed of the availability of service providers; Protection Officers; and free legal services. The aggrieved person is also to be apprised of her right to file a complaint under section 498A of the Indian Penal Code on the ground of cruelty.
What Other Steps are to be Taken by the Protection Officer or Service Provider-
When the aggrieved person informs the Protection Officer of domestic violence, the Protection Officer is to get the aggrieved person medically examined, if she has sustained bodily injuries. So. whenever you are given beatings or caused any other bodily injury, you may ask the Protection Officer that he should get you medico-legally examined or for medical facility or aid.
You, as the aggrieved person, may also ask the service provider for medical facility or medical aid.
The medical report is to be submitted by the Protection Officer to the concerned Magistrate and also to the concerned police station.
The Protection Officer is required to prepare a report about the domestic incident and submit the same to the Magistrate. Copy thereof is also required to be sent to the service provider.
Such a report can be submitted even by the service provider. Service provider is required to submit the same to the Magistrate and to the Protection Officer of the concerned area.
The Protection Officer is to apply for issuance of protection order. In this regard, application must be in the prescribed form and manner to the Magistrate. Such an application is to be filed by the Protection Officer only if the aggrieved person so desires. Protection Officer is also to ensure that free legal aid & services are made available to the aggrieved person.
Protection Officer shall forward copies of the complaint and report to the police officer in-charge of the concerned police station where incident of domestic violence took place. The Protection Officer is also to inform the service providers of the incident of domestic violence.
It is duty of the Protection Officer and Service Providers to make available to the aggrieved person a safe shelter home, if so requested by the aggrieved person. So in case you as aggrieved person need safe shelter, you may ask the Protection Officer and the Service Providers, as the case may be. A copy of report prepared by the Protection Officer or the Service Provider about lodging of the aggrieved person in the shelter home shall be sent to the Magistrate and the police station. Service Provider is to submit such a report only to the police station and not to the Magistrate.
How to Apply for Orders or Reliefs (section 12)
If you feel aggrieved on account of domestic violence, you or anyone on your behalf may present an application to the Magistrate for the appropriate relief or reliefs.
Even a Protection Officer may present an application to the Magistrate for the appropriate relief or reliefs in your favour.
Where to Apply for Orders or Reliefs (section 27)
Application for protection order or any other relief available under the Act is to be filed in the Court of Judicial Magistrate Ist Class or Metropolitan Magistrate. You, being the aggrieved person, can file such an application at any of the following places:
(a) where you, the aggrieved person, permanently or temporarily reside; or
(b) where you, the aggrieved person, carryon business; or
(c) where you, the aggrieved person, are employed; or
(d) where the opposite party resides; or
(e) where the opposite party carries on business; or
(f) where the opposite party is employed; or
(g) where the cause of action has arisen, say where the incident of domestic violence has taken place.
Procedure to be Followed by the Magistrate (section 13)
Procedure laid down under the Act is such that all the proceedings are conducted by the Magistrate expeditiously so that applications are disposed of without any kind of delay. As per procedure, on receipt of such an application, Magistrate is to fix the first date of hearing. Such a date shall not ordinarily be beyond 3 days from the date of receipt of application.
Notice of date of hearing is to be given to the Protection Officer. Protection Officer is to get the notice served, on the respondent-opposite party, in the prescribed manner. Magistrate may order service of the notice on any other person. Such order of service is to be passed within a maximum period of 2 days or such further reasonable time.
The Protection Officer entrusted with the notice is to make report about service of notice.
The Magistrate is to make endeavour for disposal of such an application within 60 days from the date of its first hearing.
Procedure to be Followed by the Magistrate (section 28)
If the Magistrate considers that the circumstances of the case so warrant he may conduct proceedings in camera. If you, the aggrieved person, or the opposite party desires, Magistrate may so order for conducting proceedings in camera. While proceedings are conducted in' camera, general public is not allowed to be present in the Court room or at the place where the proceedings are to be conducted.
Code of Criminal Procedure contains the procedure for trial of criminal cases by the Court. Section 28 provides that save as otherwise provided in the Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 are to be governed by the Code of Criminal Procedure.
It is significant to note that the Act provides that the above provision does not prevent the Court from laying down its own procedure for disposal of an application which is under section 12 or under sub-section (2) of section 23. Therefore, Court need not follow the procedure prescribed under the Code of Criminal Procedure, while entertaining your application or on receipt of application from Protection Officer or while conducting proceedings on such an application or for grant of any relief including the relief of compensation or damages.
Provision for Undergoing Counselling
Law (section 14) provides that the Magistrate may, at any stage of the proceedings under this Act, direct the parties singly or jointly, to undergo counselling with any member of a service provider.
What Material the Magistrate is to take into Consideration before Passing any Order
Before passing any order, Magistrate is to take into consideration any report regarding incident of domestic violence submitted by Protection Officer or the service provider. As already indicated above, Protection Officer or the Service provider may submit report about domestic violence on the basis of information or complaint received by them or such incident having taken place in their presence or when such an incident is reported to them.
Reliefs
What Reliefs the Magistrate may Grant to the Applicant - Aggrieved Person?
(i) Compensation or Damages for Injuries
The Act provides that you may claim relief by way of compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent. (Sub-section (2) of section 12)
(ii) Right to Reside in a Shared Household
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).
It further provides that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the opposite party save in accordance with the procedure established by law.
(iii) Protection Orders
When the Magistrate is prima facie satisfied from the material placed before him and after providing opportunity to each of the party of being heard, that domestic violence has taken place' or is likely to take place, he may pass a protection order (under section 18) in favour of the aggrieved person and thereby prohibiting the opposite party from:
(a) committing any act of domestic violence;
(b) aiding or abetting in commission of domestic violence;
(c) entering the place of employment of the aggrieved person;
(d) entering the school or other place frequented by the aggrieved child;
(e) attempting to communicate in any form with the aggrieved person (say prohibiting the opposite party from contacting the aggrieved person personally, orally or in writing or electronically or telephonic all y);
(f) Alienating any assets used or held or enjoyed jointly by both the parties; or
(g) Alienating any assets used or held or enjoyed by the aggrieved party alone;
(h) Operating bank lockers or bank accounts used or held or enjoyed by both the parties jointly:
(i) .Operating bank lockers or bank accounts used or held or enjoyed. by the aggrieved person alone;
(j) Alienating any assets, operating bank lockers or bank accounts (referred to above) or Stridhan or any other property, without leave of the Magistrate;
(k) Causing violence to the dependants or other relatives or any person who assists the aggrieved person in protecting her from domestic violence;
(1) Committing any other act to be specified in the protection order.
(iv) Residence Orders (Section 19)
Wife has a right to reside in the shared household. She cannot be expelled from there by her husband or any of his relatives. So when you being the wife feel aggrieved or apprehend expulsion from the shared household or have been expelled from the shared household, you have been provided remedy under the Act. Facts and circumstances of a case may require the aggrieved woman to live separately from the husband and his relatives. In such circumstances, order may be passed for same level of alternate accommodation for the aggrieved person or for direction to the respondent to pay rent to the aggrieved woman. This remedy is in the shape of residence order. When a Magistrate is disposing of an application under sub-section (1) of section 12, he, on being satisfied that domestic violence has taken place, may pass a residence order. A residence order would be to the following effect:
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household. Such an order can be passed if even the opposite party has or has no 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 circumstance so require:
It is noteworthy that no such order under clause (b) is to be passed against any woman.
Imposition of Additional Conditions by the Court while Granting the Above Reliefs
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.
The Magistrate may require from the opposite party to execute a bond, . with or without sureties, for preventing the commission of domestic violence. Whenever any such bond is forfeited or any condition thereof is violated by the respondent, Magistrate is empowered to impose penalty upon the respondent and also to get the order implemented.
While passing an order under sub-section (I), the Magistrate may impose on the opposite party obligations relating to payment of rent and other payments. But in this regard, Magistrate is to take into consideration the financial need and resources of both the parties. By financial need" meaning thereby that the Magistrate is to consider if the husband is suffering from financial crisis or he has to support other members of the family like old aged parents or other dependents.
How and when to Get Protection Order Implemented with Police Aid The Magistrate may direct the concerned officer in-charge of the police station to assist in the implementation of the protection order.
Return of Stridhan and Other Articles to the Aggrieved Person
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.
(v) Monetary Reliefs
Such reliefs can be granted under section 20 of the Act. While disposing of an application under sub-section (1) of section 12, 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 the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for
(i) the aggrieved person, and
{ii) her children, if any.
Such an order of maintenance includes 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 for the time being in force. The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The Magistrate shall have-the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides. The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
(vi) Custody Orders
The Act provides that notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf. Magistrate may also specify as to what arrangements are to be made for visit of such child or children by the respondent. (Section 21).
If the Magistrate is of the opinion that any visit of the respondent may be harmful to the interest of the child or children, the Magistrate shall refuse to allow such visit.
(vii) Compensation Orders
Under the Act, remedy has been provided to compensate the victim on account of domestic violence. The Act provides that in addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress caused by the acts of domestic violence committed by that respondent. So whenever you, the aggrieved woman, have been subjected to any kind of injury or mental torture or emotional distress, you shall be entitled to compensation or damages for the pain caused to you by the respondent. (Section 22).
Interim Reliefs
Interim relief is such a relief which is granted in favour of a party during pendency of the main petition or application. Such an order remains in force only during the period proceedings are pending in Court. For example, whenever any monetary relief is claimed, Magistrate may grant interim monetary relief to the aggrieved party, and the opposite party has to comply with such an interim order during pendency of the proceedings.
Ex-parte Orders (Section 23)
Ex-parte order is that order which is passed in favour of one party when the other party is not in attendance before the Court either because of non-appearance or having absented during the proceedings.
For an ex-parte order an application is to be filed before the Court. Such an application is to be supported by an affidavit of the aggrieved person.
The ex-parte order can be passed in proceedings in respect of protection order, residence order, custody order, monetary relief order, compensation order, mentioned above. (under sections 18, 19, 20, 21 or 22
of the Act.)
Satisfaction of Magistrate before Passing Ex-parte Order
Before passing an ex-parte order, under sections 18, 19, 20, 21 or 22, the Magistrate is to satisfy that the application prima facie discloses that:
(a) the opposite party is committing an act of domestic violence;
(b) the opposite party has committed an act of domestic violence;
(c) there is likelihood that the opposite party may commit an act of domestic violence.
Above Reliefts) Available under sections 18, 19, 20, 21 and 22 can be Claimed in Other Legal Proceedings as well
It is significant to note that the reliefs available under Prevention of Domestic Violence Act i.e., the relief by way of protection order, custody order, monetary relief order, compensation relief, are not claimed only under this Act. These reliefs can be claimed in the proceedings going on before Civil Court, Family Court or Criminal Court. (Section 26). For example, such a relief can be claimed even in a petition for restitution of conjugal rights, annulment of marriage, divorce, maintenance, guardianship, custody of child or civil or criminal proceedings between the parties pending before Civil Court, Family Court or Criminal Court. But if the aggrieved person has already in her favour such an order in other legal proceedings, it is her duty to inform the Magistrate about existence of such an order.
The Act provides that provisions of this Act are in addition to provisions of any other law in force. It means any relief available under any other law can be claimed by the aggrieved person from the competent Court or Authority constituted under the law. So, these provisions are not in derogation of the provisions of any other law, for the time being in force. (Section 36).
It is also important to note that such a relief under the Act can be claimed even at the time of initiating of other legal proceedings. To claim such a relief in other legal proceedings, it is not necessary that other legal proceedings should have been initiated after the commencement of this Act. It means where any proceeding has already been initiated, aggrieved woman would be at liberty to file application in those proceedings to claim any of the reliefs under the Act.
For how Long the Protection 'Order shall Remain in Force A protection order (passed under section 18) shall be in force till the aggrieved person applies for discharge of the order (section 25). So, if you are aggrieved person and a protection order has been passed in your favour, Court shall order for discharge only on your application.
At the same time, it is significant to note that the aforesaid provision does not debar you as aggrieved person or as the opposite party, from filing an application before the Magistrate for alteration, modification or revocation of any order passed under this Act.
Before allowing application for alteration, modification or revocation of any order passed under this Act, you are to satisfy the Magistrate that circumstances have changed and the same require alteration, modification or revocation of the order passed earlier.
For example, in case of order of maintenance, Court may take into consideration subsequent change in the source of income or financial-needs of the opposite party or that of the applicant so as to modify the order passed earlier.
Passing of a decree of divorce is another circumstance, which may call for modification or revocation of any order passed under this Act.
You can Challenge the Orders Passed by the Magistrate by way of Appeal
Whenever a person feels aggrieved by an order passed by the Magistrate, he or she has a right to file an appeal against the order before the Court of Sessions. Court of Sessions is presided over by Sessions Judge or Addl. Sessions Judge.
There is Time-limit to File Appeal Against the Order Passed by the Magistrate
Appeal has to be filed within 30 days from the date of service of the order sought to be challenged.
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Matrimonial laws in India:
Procedure followed in Matrimonial Petitions
Section 21 of Hindu Marriage Act provides that all proceedings under this Act shall be regulated as far as may be, by Code of Civil Procedure.
Restitution of Conjugal Rights
A husband has the right to require his wife to live with him wherever he may choose to reside. On the other hand, it is corresponding duty of the wife to live with her husband
Maintenance and Residence of Female Child
Under the Hindu Marriage Act, there is provision for permanent alimony or allowance. Under section 4 of the Prohibition of Child Marriage Act, in case of annulment of a child marriage
Hindu Marriage Act
Hindu Marriage Act of 1955, came into force on 18th of May, 1955. It has amended and codified the law relating to marriage solemnized between two Hindus.
How Can A Hindu Marry from other Religion
Marriage between two persons, who are not Hindus, it would be a case of special marriage. In this regard, reference may be made to provisions of Special Marriage Act (43 of 1954)
Judicial Separation
Section 10 of Hindu Marriage Act provides for judicial separation. It provides that either party to a marriage can file a petition before the Court for such a relief.
Maintenance for wife, children and parents - Section 125 CrPC
When any person neglects or refuses to maintain, his wife, children or parents, than they can claim maintenance by filing an application before the Magistrate under Section 12
