The Protection of Woman From Domestic Violence Act, 2005
The Protection of Woman From Domestic Violence Act, 2005
The Protection of Woman From Domestic Violence Act, 2005
Jurisprudential Essence -
1. Since the time immemorial women form the largest group of victims of
domestic violence and violence against women continue to exist even in the 21st
century. The Phenomenon of domestic violence in India is widely prevalent but
has remained invisible in the public domain. The act of domestic violence is
generally restricted within the walls of a household and therefore is not
addressed appropriately. This has created a need for introduction of a special
legislation to address the issues pertaining to domestic violence and
rehabilitation of the victims of the same.
2. Under criminal jurisprudence domestic violence is punishable under section
498A of Indian Penal Code, 1860 in form of ‘cruelty’. However, the civil law
does not address the phenomenon in its entirety; therefore, a need of a separate
enactment was felt.
3. Finally, the Act also acknowledges the commitment made by our country as
a signatory of various international conventions -
-The Vienna Accord, 1994
-Beijing Declaration and the Platform for Action, 1995
-The United Nations Committee on convention on Elimination of All Forms of
Discrimination against Women (UN-CEDAW)
It is, therefore, proposed to enact a law 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.
Nature of relief under DV Act -
The reliefs that can be granted by the final order (section 18-22) or by interim
order (section 23) under the Act are of civil nature. However, if the said order is
violated, it assumes the character of criminality (section 31). In fact, the very
purpose of enacting the DV Act was to provide a remedy which is an
amalgamation of civil rights of the aggrieved woman; therefore, the DV Act is
predominantly of civil nature. (Kunapareddy @ Nookala Shanka v.
Kunapareddy Swarna Kumari, 2016 SC)
Definition Clause –
1. Section 2(a) “aggrieved person”
means any woman who is or has been in a domestic relationship with the
respondent and who alleges to have been subject to any act of domestic violence
by the respondent.
Issue – Whether a divorced woman can seek for relief against ex-husband under
DV Act for the act of domestic violence committed against her when prior to
divorce she lived in the shared household with her ex-husband?
The Hon’ble SC in the case of Juveria Abdul Majid Patni v Atif Iqbal
Mansoori, 2014 SC clarified that an act of domestic violence once committed,
subsequent decree of divorce will not absolve the liability of the respondent
from the offence committed or to deny the benefit to which the aggrieved
person is entitled under the DV Act. Therefore, the petition under section 12 of
DV Act will be allowed even after divorce between the parties.
Issue – Whether the female relatives of the husband can be a respondent under
the DV Act?
The literal interpretation of definition of the respondent implies that respondent
can only be an “adult male”. However, the Hon’ble Supreme Court in the case
of Sandhya Manoj Wankhade v Manoj Wankhade, 2011 SC, propounded
that “respondent” includes the term “female relative”. The legislature never
intended to exclude female relatives of the husband (eg. sister, mother etc) or
the male partner from the ambit of a complaint that can be made under the
provisions of the Act.
The Hon’ble court in the case of Harsora v. Harsora, 2016 SC further clarified
that the words “adult male” in section 2(q) will stand delete as these words do
not square with Article 14 of The Constitution.
Therefore, the word “adult male” and the proviso to section 2(q) are now otiose.
The definition of shared household has come under the scrutiny of the Hon’ble
Supreme Court in various judgements.
1. S.R. Batra v Smt. Tarun Batra, 2006 SC – The court has clarified that for a
property to be a shared household, it must fulfil any of the three conditions -
-it is registered in the name of the husband,
-if the husband is the member of the HUF and the property belongs to HUF or
-the husband is the rent payer of the impugned property
The court therefore rejected the prayed of the victim for residence order as the
property was registered against the mother in law and not the husband. The
court held that the claim for alternate accommodation can only be made against
husband and not against in laws or other relatives.
4. Custody Orders (section 21) The Magistrate may grant temporary custody of
the children to the aggrieved woman or any person making an application on
her behalf. This is to prevent a woman from being separated from her children,
which itself is an abusive situation. Section 21 also states that 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 and
specify, if necessary, the arrangements for visit of such child or children by the
respondent. However, the Magistrate may refuse such visit to such child or
children, if it feels that any visit to the child or children by the respondent may
not be in the interest of the chid.