Stanley R. D’Costa(B.Com., LL.B) is current Christian Marriage Registrar for D.K.(Appt. Govt. of Karnataka), Notary Public for D.K. (Appt. Govt. of India), Legal Advisor – Bereau of Indian Standards, Director of Rotary Club Mangalore Mid Town and Legal Advisor for M.C.C. Bank.
He has previously held various positions including Treasurer of Rotary Club Mangalore Mid Town, Secretary of Catholic Club Sodality of BVM, Lions Club Zonal President District 324-D4, President of Lions Club Milagres, President of Rotaract Club Mid Town Zone, President of Catholic Movement Zone, and NCC Cadet Captain.
He also writes legal articles on various magazines like ?Kutam’ weekly, “Dirven” weekly, ?Amso Sandesh’ monthly and ?Sevak’ monthly. He is practicing as an Advocate in Civil, Criminal, Revenue, Land etc.
He can be contacted at: Mallikatta Centre Building, I Floor, Mallikatta, Kankanady Post, Mangalore-575002. Phone: 2410365, 4270365 (Office) or 9886311251 (Mobile).
Introduction – Domestic Violence Act 2005
The moment a domestic event takes place in a domestic violence case, the aggrieved woman may report the event to the Magistrate who refers the matter to the Protection Officer attached to that court. She can also approach the service provider or the protection officer for help. They both can provide the aggrieved woman immediate medical help and residence to live in a shelter home. The protection officer/service provider shall file ?Domestic Incident Report? before Magistrate, who if the medical help and residence are not already provided, may direct the Protection Officer to arrange for the aggrieved woman those facilities.
The Magistrate receiving the Domestic Incident Report which is equivalent to FIR may take up enquiry into the case which is hereafter called the ?Domestic Violence Case? and issue a notice to the respondent who is the perpetrator of violence to be served within two days and fix the third day as the date to hearing. Meanwhile if the Magistrate deems it fit may issue ex parte interim orders against the Respondent. Such orders may be passed even after the appearance of the Respondent as well pending issuance of relieves prayed for by the aggrieved woman.
The relieves the Magistrate can grant are (1) Protection Orders; (2) Maintenance orders; (3) Custody orders; and (4) Compensation Orders. Protection orders include orders of Injunction restraining the Respondent not to continue the acts of domestic violence against the aggrieved woman. Maintenance Orders include grant of maintenance to the aggrieved woman and her children if any. The Custody orders are made retaining the custody of children if they are with her or for restoration of children if they are not in her custody. Compensation orders are orders directing the Respondent to pay for all the damages the aggrieved woman suffered physically and mentally by reason of domestic violence.
Magistrate conducting the trial of the domestic violence case tries it in a summary manner and he shall conclude the case within six months. As far as this case is concerned, it runs as a civil case and in the manner the cases of maintenance under Section 125 of Criminal Procedure Code or in the manner in which security proceedings are held by the magistrate under provisions of Criminal Procedure Code. The Magistrate though the Protection Officer will see to it that the orders of the Magistrate are duly complied with by the Respondent if necessary through the help of the police. It is only when the Respondent fails to comply with the orders of the Magistrate, the Responddent becomes liable to be prosecuted for defying the orders of the Magistrate.
The orders of the Magistrate are executed by the Magistrate himself and in the manner in which all such orders of the Magistrate are executed. If the orders are prohibitory orders, the Respondent is directed not to interfere with the freedom of the aggrieved woman. If the order is for maintenance, the same is executed by attachment of the movable properties of the Respondent. If it still remains unfulfilled the order of maintenance may be sent to the District Collector for the recovery of the amount due as if it is an arrear of land revenue, in which proceedings the Collector may attach the immovable properties of the Respondent. If the order is for custody of children the Magistrate with the assistance of the police recovers their custody from the Respondent and hands them over to the aggrieved woman.
All orders of the Magistrate are appealable to the Sessions Court which disposes of the appeal as though it is criminal appeal filed under Criminal Procedure Code. There is no revision to the Sessions Court or the High Court against the orders of the Magistrate. The order of the Sessions Court not being appealable the High Court may entertain revision against the orders of the Sessions Court.
The Act has created two novel agencies to help the implementation of its several provisions. The first one is, the post of a Protection Officer and the other is, an institution called Service Provider. They are both bound in duty to help the aggrieved woman right from the moment they learn of the occurrence of domestic event. The functions of the Service Provider end with the filing of Domestic Incident Report with the Magistrate. The functions of the Protection Officer are widespread. He should not only continue to help the aggrieved woman in all manners possible but also carry out all the directions the Magistrate may give him from time to time. He is in addition, charged with the responsibility of securing that all the facilities and benefits the Act confers on her reach her in full measure. The Act thus having made him responsible for fulfilling what all the aggrieved woman can seek holds him also liable to be prosecuted if he commits a breach in complying with any specific instructions of the Magistrate.
The Act by itself does not punish the perpetrator of domestic violence against the woman aggrieved. But, if the case discloses any offences punishable under Penal Code or any other Penal law, or under the Dowry Prohibition Act or under Section 498A of the Criminal Procedure Code, the Magistrate may frame appropriate charges against the Respondent and try the case by himself or commit it to the Sessions Court as the case may be.
The Act as designed serves the purposes for which it is enacted viz., Protection of Women from Domestic Violence both explicit and dormant as widespread evil in several families. The victims may be wives, sister and mothers or any other female relative living in the shared-household in domestic relationship. The Respondents are males and may also be female relatives of the Respondent when the complaining woman is the wife or a person living in married relationship with the respondent. While, woman only can complain, it is open to a male child to carry complaint under this Act provided he does so along with his mother.
The Act is a Central enactment, the enactment, of which is entrusted to the State Government which appoints the Protection Officers, recognizes the Service Providers and authorizes the Medical Facility and Shelter-home to receive the aggrieved woman. The Magistrate and the Protection Officers are the active agents who enforce the provisions of this Act.
There are a few oddities in this enactment. The Magistrate who takes cognizance of the case is also invested with the responsibility of executing his own orders even without being moved for their execution, in the interests of the aggrieved woman in whose favour he issues them.
Another oddity is that the Protection Officer appointed under this Act apparently looks like a person to render voluntary public service without anybody approaching him with a complaint, he is made liable for prosecution if he commits any breach of his duties entrusted to him by the Magistrate. The third oddity is, that in cases where there is no evidence except that of the aggrieved woman her testimony shall be relied upon by the Magistrate in deciding the existence or otherwise of the domestic violence. Fourth, the Magistrate trying the case of domestic violence is required to take not the individual incidence of violence but the overall circumstances. These exceptions to the normal rules of evidence are justified in that the domestic violence mainly occurs in a private domestic environment beyond the public gaze.
The Protection of Women from Domestic Violence Act is passed by the Parliament in response to a worldwide demand for such legislation and it is hoped that this legislation will act as a deterrent to the occurrences of domestic violence and assures the families peaceful co-existence among their member.
What are the objects and reasons of this Act?
Domestic violence is undoubtedly human rights issue and serious deterrent to development. Presently where a woman is subjected to cruelty by her husband or his relatives it is an offence under Section 498 A of the Indian Penal Code. This Act is enacted keeping in view the rights guaranteed under Article 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. The Bill seeks to provide the following:
i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
ii) It defines the expression ?domestic violence? to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or right in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a work place or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
v) It provides for appointment of protection Officers and registration of non-governmental organizations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.
This Act intended to effectively protect the rights of woman to a decent and dignified life in the family. The preamble emphasizes the need of the aggrieved woman to immediate reliefs, as well as compensation and for rehabilitation when it speaks of matters connected there with.
What is meant by domestic violence?
Any act, commission or conduct of the Husband or his relatives 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.
If the husband beats his wife does it come under domestic violence?
No. the offence against wife must be aimed at depriving her of all or any of the benefits she has in living within the household or in enjoyment of her own property in enjoyment of which she has a right, or coerce her to leave the shared household or subject her to any illegal and reprehensible demands including sexual overtures.
If the mother-in-law or sister-in-law exercises domestic violence, can the widowed daughter-in-law file a complaint against them?
Yes. The Magistrate can issue restraint orders against them and also compensation orders.
If the woman is just not given food will it amount to domestic violence?
Yes, provided it is intended to achieve the ultimate purpose of necking her out of the benefits of shared household.
What is meant by physical abuse?
The act complaint of may be assault, criminal intimidation or criminal force or any other threatening act which creates an apprehension in the mind of the aggrieved woman that she may be inflicted with a more serious injuries including rape.
What is the meaning of word Assault?
The acts coming within the meaning of assault are gestures and preparations which if not stopped would certainly result in the use of criminal force against her. Legally speaking, preparation to commence any offence is not an offence but in the case of assault, gestures and threats which amount only to preparations for committing criminal force are made punishable under Indian Penal Code.
What is meant by criminal force?
Criminal force under the criminal law means doing such acts as would cause injury or annoyance to the person to whom the force is applied. It means touching or forcing the movement of any person or thing or animal to change the place. It implies that the person applying the criminal force and the person against whom criminal force is applied must be face to face at the same time to be punishable. Such force must have been applied with a view to or with an intention to commit an offence or causes injury or fear or annoyance to the person to whom it is applied.
What is meant by sexual abuse?
Any indecent gesture aimed towards securing sexual contact, and all such gestures which otherwise humiliates, denigrates or violates the dignity of woman amount to sexual abuse. Tapping delicate parts of women constitute sexual abuse.
What is meant by verbal and emotional abuse?
Use of cheap language and gestures aimed at insulting or ridiculing the woman and their associates and their children with a view to see her out of the common household. Repeated acts of intimidation her for depriving her of the benefits of shared household will also come under verbal and emotional abuse.
Who is the aggrieved person under this Act?
?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 her husband.
What is meant by domestic relationship?
?Domestic Relationship? means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
What is meant by consanguinity?
Consanguinity is a blood relationship where those related by consanguinity shall have a common ancestor. Sister?s son of an individual is related to the grand-daughter of his brother because the grandfather of the sister?s son and great-grandfather of the brother?s grand-daughter here have a common ancestor who is the individual.
What is meant by relationship marriage?
When a widow is having a common household with a relation of her husband, the relationship between the widow and the other person is a relationship by marriage. If she is subjected to domestic violence, the widow can file a complaint under the Act before the Magistrate or file a report before the Protection Officer or present statement before the Service Provider.
What is meant by relationship by adoption?
Relationship here is that which arises after adoption. Wife and children of the adoptee are related to the mother by adoption. The other relatives of the adoptee including his natural parents also become relatives to his mother for the purpose of the Act.
What is meant by relationship in the nature of marriage?
There may be cases where persons might be living without a marriage having taken place or there may be cases where celebration of marriage itself cannot be proved. In order to cover such circumstances, the Act included women residing with her husband?s family are enabled to claim relief under the Act.
Is a step-daughter an aggrieved person in relation to her step-mother?
No, she can only complain against her father alleging that he failed to prevent the exercise of domestic violence against daughter by his wife.
Is the widow an aggrieved person in relation to her husband?s father or bother or his sisters?
Yes. When the relationship is traced through her late husband, the widow is an aggrieved person who can complain against both his male and female relatives.
Is a distant unmarried relative who traces her relationship through her father person aggrieved in relation to the surviving females in the family?
No. unless the relationship is traced through marriage, woman complaining of domestic violence cannot seek relief under the Act against any female members of the family.
How to prove the relationship in the nature of marriage?
First, there should be oral evidence about her living with the male partner. Secondly, any correspondence or documents which show that the woman is living in the household of her husband. Third – ration cards, voters list and nominations in bank accounts and service registers may furnish evidence as to her residence with her husband in domestic relationship. Even where such persons are living separate, still the woman can complain against her husband and her relatives if they are raiding her house and subjecting her to domestic violence.
What is meant by monetary relief?
“Monetary Relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;
Can the aggrieved woman be a child?
Yes. The use of the word woman is indicative of sex. She need not necessarily be an adult person. Therefore a female child can file a complaint under this Act. No doubt such complaint should be on her behalf by somebody who is an adult or the Protection Officer.
A child can be an adopted step or foster child.
Can Magistrate grant compensation?
Yes. Compensation order is an additional relief the Magistrate can grant to the aggrieved woman. While or after making several orders called prohibition orders which relate to granting to the aggrieved woman a place to live and maintenance orders or meeting her daily needs, the Magistrate has power to order a fixed sum as damages for the physical inconvenience and mental agony caused to her in the course of domestic violence, to be paid by the respondent to the aggrieved woman. The order of compensation made by the Magistrate can be executed in the same manner as recovery of fine.
Whether this Act is a criminal enactment?
No. The offending respondent under this Act is not an accused. The Magistrate dealing with this case is akin to Magistrate taking security proceedings. He is not prosecuting anybody. The Magistrate is granting several reliefs to the aggrieved woman and issuing directions to the respondent to comply with the same and also to make provision to the aggrieved woman for an immediate place to reside and granting subsistence and maintenance. Therefore this Act is no substitute for the Dowry Prohibition Act. The proceedings in both the cases will be perused. What happens in either proceedings is of no concern to the other. Even if the respondent in the criminal cases is convicted under Dowry Prohibition Act, the proceedings under this Act will not lapse.
ii) All the directions which may be issued under this Act to the respondent are personal to him. If the respondent is sent to jail on conviction in Dowry prohibition case, there cannot be anything to be done against him in the proceedings under this Act. In such cases what is the purpose in pursuing this case against a person of protecting the life of the aggrieved woman
Who is a Protection Officer?
The Act has created a machinery to which the aggrieved woman living in the shared household may be redressed. The Act is only a protective measure and not a punishing legislation. Therefore the Act created an Officer called Protection Officer. The Act also created by designation two other institutions namely, Shelter Home and an institution called Medical Facility.
Protection Officer is a Key person in the working of this Act. It is he to whom the aggrieved woman may approach for assistance. Since in many cases the aggrieved woman may not be able to approach the Court directly the office of the Protection Officer is conceived so as to act as medium through whom the cases of oppression of woman may be brought to light and necessary help is rendered to them. The Protection Officer can act only on behalf of the oppressed woman and in no case proceed to act independently. The appointment of Protection Officer is made under Section 8 of the Act. Appointment shall be made by notification published in the Gazette of India.. If the Protection Officer fails or refuses to discharge his duties or fails to discharge his duties as may be entrusted with by the Magistrate, he is liable to be prosecuted and punished. .
Can the informant file a FIR about domestic violence before the Magistrate directly?
No. The informant is given protection under this Act by providing immunity from any liability, civil or criminal. Unless such protection is given to the informers, public spirited and socially conscious persons may not involve themselves in giving information about domestic violence to the Protection Officer. . The informant is just a link between the aggrieved woman and the Protection Officer. His role ends with giving the information to the Protection Officer and nothing more.
What is the content of the immunity given to the informer?
Where the informer bona fide believes in the happening of certain domestic incident which would have gone otherwise unnoticed and report it to Protection Officer, he shall not be made a victim of any civil or criminal action by the respondent if for any reason the report given by him happens to be incorrect.
Is the informer bound to appear in any enquiry that may take palce on the information given by him? Or tender any evidence on the report given by him?
No. Though the information furnished by him would be given the due consideration by the Protection Officer, the informer shall not be liable to justify the information or justify it in any manner.
Will the Protection Officer disclose the name of the informant to the public?
No. He would not disclose the source of information.
Duties of police officers, service providers and Magistrate:
A Police officer, service provider or magistrate who has received a complaint of domestic violence or is otherwise present at the place of any incident of domestic violence or when the incident of domestic violence is reported to him shall inform the aggrieved person-
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act,
(e) of her right to file a complaint under Section 498A of the Indian Penal Code
What is meant by Dowry?
Dowry means any property or valuable security given or agreed to be given either directly or indirectly
a) by one party to a marriage to the other party to the marriage or
b) by the parents of either party to a marriage or by any other person to either party to the marriage or any other person at or before or any time after the marriage in connection with the marriage of the said parties but does not include ?dower? or ?Mehr? in the case of a person to whom Muslim Personal law (Shariat) applies.
The demand for dowry is a conduct which amounts to domestic violence even if it is made long after the marriage. Throwing away the woman to her parents house for medical treatment, having failed to secure funds from the in-laws amounts to demanding dowry. After the marriage when it is the responsibility of the husband to meet wife?s maintenance and medical expenses to demand such amounts from the parents-in-law amounts to domestic violence.
All that is prohibited under the dowry Prohibition Act is treated under this Act as an oppressive conduct for which Magistrate may direct the respondent to desist from doing so and also direct the respondent to pay compensation to the wife for causing injuries to her mind.
When an event of domestic violence comes to the knowledge of the Police Officer or the Protection Officer or Service Provider or the Magistrate or any of them witnesses the event of domestic violence, their first duty is to contact the women aggrieved and inform her about the existence of the Protection of women from Domestic Violence Act of 2005 and acquaint her with the several benefits she has under the Act and steps she may take to secure them. She should be informed that she can apply to the Magistrate for protection order, order for monetary relief order relating to custody of children, if any and order for providing her with residence and order for payment of compensation for injuries she suffered. She must also be informed of the assistance she may get from the Protection Officer and the Service Provider and also of her right to free medical treatment at Medical Facility. She must be told that if she desires, she can seek and obtain free legal aid from the Legal Services Authority. If she is so interested she may be advised to file a complaint under Section 498-A, if the facts of the case come within the purview of the section of the Criminal Procedure code. So far are the obligations cast on the above Officers. But that dose not relieve the Police Officer or the Magistrate from their duty to take such action as is permissible under law against an accused in relation to the cognizable offences committed in the course of domestic violence.
Is it correct to say that none of the civil reliefs the aggrieved woman can obtain under the Act can be secured for her without her consent?
Yes. This does not however mean that the aggrieved woman is left to fend herself and to her future since all the acts of domestic violence come under one or the other offences specified in Penal Code or other enactments. The police should interfere notwithstanding the reluctance of the aggrieved woman..
If the Protection Officer has not taken or refused to take notice of domestic event can the Service Provider take notice of the same and file a Domestic Incident Report before the Magistrate?
Yes. Even in a case where Protection Officer failed to take notice of the incidence of domestic violence, the Service Provider may take up the case and proceed further in securing the reliefs to the aggrieved woman.
Can the Medical Facility refuse to render medical aid if the woman aggrieved come direct and without Protection Officer or Service Provider?
No. Medical Facility is bound to render medical aid free even if the aggrieved woman requests for aid without any prior recommendation either from the Protection Officer or the Service Provider. The obligations cast on Protection Officer, Service Provider and the Medical Facility, are independent and they do not depend one on the other.
What are the services which the legal Services Authorities can provide to the aggrieved woman?
The Legal Services Authorities will in the first instance appoint an advocate for the aggrieved woman. The Legal Services Authority will pay all legal expenses as may be required including the fee payable to the advocate to the extent of the civil reliefs which can be granted under the Act. If any criminal proceedings are initiated by the police the Public prosecutor will take over the responsibility of meeting all expenses. Legal Services Authority will pay for all such expenses as may be required for the enforcement of several orders which may be made by the Magistrate. The expenses the Legal Services Authority pays include the expenses the aggrieved woman may incur in appeals and revisions and also the excuses she may personally incur in pursuing the cases.
What is the meaning of Shelter Homes ?
If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.
Can the aggrieved woman directly approach the Shelter Home for boarding and lodging?
Yes. Provided she can prove that she comes within the definition of the aggrieved woman under the Act. It is better if such woman approaches the Shelter Home through the Protection Officer or through Service Providers It may be noted her that the statutory obligation to entertain is confined to aggrieved woman only and not to any woman in distress.
What are the Duties of Protection Officer?
It shall be the duty of the Protection Officer-
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such from 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;
(c) to make an application in such from and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and make available free of cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counseling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(d) 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;
(e) 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;
What are the steps the Magistrate will immediately take for purposes of protecting the life of the aggrieved woman?
He may immediately get her examined and direct the recognized Medical Facility to provide her medical treatment. The Magistrate may, if the aggrieved woman is thrown out of her house, provide her with accommodation in the recognized shelter home. The Magistrate at the outset shall inform the aggrieved woman of the several facilities she may obtain under this Act while informing her of her rights. He may advise her about the availability of free legal service from legal services Authority. If so required through an application the Magistrate may grant her interim maintenance and custody of her children and also any order compensation for the injuries suffered by her. The Magistrate has the power and authority to execute all the above orders as if they are made by a competent Criminal court.
Who is the Service Providers under this Act?
Any voluntary association registered under the Societies Registration Act or a company registered under the Companies shall register itself with the State Government as a Service Provider for the purposes of this Act.
What are the Power of Service Providers
(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.
What are the Duties of Government?
The Central Government and every State Government, shall take all measures to ensure that:
(a) the provision 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 by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and periodical review of the same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to women under this Act including the courts are prepared and put place
What is meant by counseling?
Counseling here means counseling with any member of the service provider who possess qualifications and experience in counseling as may be prescribed
Is counseling mandatory?
Yes. In all cases where such step appears to be advisable. When the parties appear to be not in logger heads, there may not be any purpose in wasting time by counseling. It is not, however, without significance. That the Act provided counseling and assistance of experts as means to be adopted before any order for protection, monetary reliefs, custody of children and compensation are finally made. There may be cases for reconciliation even in hard and impossible cases. Moreover, it shall be the endeavor of the Magistrate to bring about reconciliation among parties wherever possible.
What is the role of the welfare expert?
A clear difference must be drawn between the Protection Officer and Service Provider on one side and the welfare expert on the other. The Protection Officer himself may advise suitably the warring parties. Next come the Service Providers who are also competent to bring out peace among the parties. Thus when the matter reaches the Magistrate he may attempt reconciliation through counseling by the Service Provider. After their efforts are over, if the Magistrate has any doubt about the need to proceed further he may seek the service of the welfare expert to advise him.
When the conditions in the family are normal can a woman secure order of injunction against her husband on the ground that the later is proposing to sell away her Stridhana properties?
No. Unless the overall circumstances of the case establish a case of domestic violence, she cannot move the Magistrate under the Act. Her remedy lies in Civil Court.
What order a Magistrate can pass when he is satisfied that domestic violence has taken place?
(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 relative 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;
(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.
What is the meaning of the word ?child??
The child may be of either sex but below the age of 18 completed years.
If the child is an adult above the age of 12 years or of the age above 8 by which time could have attained the powers of discretion, is it necessary for the Magistrate to take the opinion of the child into consideration while passing the orders of custody of the child?
Yes. If such child prefers to remain with the aggrieved woman the Magistrate must confirm its possession or restore the child to her possession if she is not in possession. If such child prefers to go with the respondent the Magistrate if he thinks proper for the respondent to retain the possession of the child, he may order so. What the Magistrate is mainly concerned with is the safety of the child and its welfare and not with any legal rights of the parties.
If such weighty questions are raised, the Magistrate may direct the parties to approach the civil court for guardianing and custody subject to what the other courts of competent jurisdiction in matter relating guardianship may decide.
Is the act of threatening a child studying in school to coerce the woman to agree for unauthorized acts of the respondent, amounts subjecting her to Domestic Violence?
Yes. The respondent may be ordered not to see the child in school and enforce it through police, if necessary.
If the Magistrate grants custody of the child to aggrieved woman and the competent Civil Court orders custody of child to the respondent, which order will prevail?
The order of the competent Civil Court overrides the order of the Magistrate. The custody of the child should be transferred to the respondent.
What is meant by mental torture?
Mental torture is a continuous course by which the woman is oppressed by words and deeds. It means treating the woman with angry expression or ill-will, and contempt as through the perpetrator appears to suffer from an allergy to the very presence or existence of woman. Mental torture of a woman is a part of domestic violence. It includes subtle contemptuous behavior causing woman pain and agony.
What is meant by emotional distress?
Emotional distress is what one suffers as a consequence of mental torture. Mental torture is what the other person inflicts and emotional distress is one which a person suffers.
What is meant by ?interim order??
The expression ?interim order? is an order made pending final decision of the court on a matter brought before it. This order will be in operation till it is modified by the court suo motu or on after hearing the respondent. The interim order is effective as the final order. There is no difference between the interim order and the final order as far as its effect is concerned. The obligation to comply with the directions of the interim order if it is made ex parte is not in any manner affected after the respondent makes his appearance. It may be the Magistrate who may insist upon the compliance of the terms of interim order as condition precedent for hearing him if the circumstance so warrant.
Can the aggrieved woman withdraw herself from the proceedings?
No. She has to make an application for discharge of the orders made by the Magistrate.
If the husband files an application for divorce and the aggrieved woman has filed an application for maintenance pendent lite, can the aggrieved woman file an application under this Act for maintenance or for medical expenses?
Prima facie the situation in the context of the above events they must have been residing separately and not living in the common household. In such case, an application under this Act may not be permissible. However, if the case, can be brought within the scope of domestic violence the aggrieved woman can certainly file an application for meeting the immediate reliefs towards maintenance and medical expenses. It is all the more justified in the case of medical expenses for such relief is not available in the other proceedings.
If the aggrieved woman has filed an application for restitution of conjugal rights and has also filed an application pendent lite for maintenance, can she file an application for any of the monetary reliefs in the proceedings under this Act?
Yes. Provided the application made here can be brought within the scope of domestic violence and provided the family court has not made any orders for interim maintenance, or such order if made is not been implemented by the respondent.
Can Magistrate direct service of notice on the respondent through any other person or police office?
No. The service of notice shall be through Protection Officer only. It is only on the statement made by the Protection Officer as regards due service, the Magistrate will proceed further.
Author: Stanley DCosta- Mangalore