The Protection of Women 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)

Application of the Act – whether retrospective?

The Hon’ble Supreme Court in the case of V.D. Bhanot v Savita Bhanot, 2012
clarified that even if a wife, who has shared a household in the past, but, was no
longer doing so when the Act came into force, would still be entitled to the
protection of the DV Act.
The Act’s goal was to safeguard women from domestic violence; hence it
should be read in favour of the women who are victims of domestic abuse. The
legislature’s intention was to cover women who have been victims of domestic
abuse prior to the Act’s enactment. The Act is a civil remedy; hence enforcing
the Act retrospectively does not violate Article 20(1) of The Constitution.

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.

2. Section 2(f) “domestic relationship”

-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.

• Interpretation of “relationship in the nature of marriage” – The Hon’ble

Supreme Court in the matter of Veluswamy v. Patchaiammal, 2010 SC
considered a relationship in the nature of marriage akin to common law
marriages. Court laid down the essentials of a common law marriage as
follows -
1. The couple must hold themselves out to society as being akin to
spouses;
2. They must of legal age to marry;
3. They must be otherwise qualified to enter into a legal marriage,
including being unmarried; and
4. They must have voluntarily cohabited and held themselves out to the
world as being akin to spouses for significant period of time.
 Therefore, every live in relationship may not be necessarily a relationship
in the nature of marriage.

3. Section 2(q) “respondent”

means any adult male person who is, or has been, in a domestic relationship
with the aggrieved person and against whom the aggrieved person has sought
any relief under this Act.
Provided that an aggrieved wife or female living in a relationship in the nature
of marriage may also file a complaint against a relative of the husband or the
male partner.

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.

4. Section 2(s) “shared household”

means a household where the person aggrieved lives or at any stage has lived in
a domestic relationship either singly or along with the respondent and includes
such a household whether owned or tenanted either jointly by the aggrieved
person and the respondent, or owned or tenanted by either of them in respect of
which either the aggrieved person or the respondent or both jointly or singly
have any right, title, interest or equity and includes such a household which may
belong to the joint family of which the respondent is a member, irrespective of
whether the respondent or the aggrieved person has any right, title or interest in
the shared household;

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.

2. Satish Chander Ahuja v. Sneha Ahuja, 2020 SC – The Hon’ble Supreme

Court while overruling the law laid down in Batra case (supra) held that the
definition of shared household given in Section 2(s) cannot be read to mean that
shared household can only be that household which is household of the joint
family of which husband is a member or in which husband of the aggrieved
person has a share but has a wider scope or interpretation.
The court grated relief to the victim under the Act to reside in the property
which was owned by her father in law. The Court opined that the father in law
in the domestic violence case can be treated as “respondent” as per Section 2(q)
of the 2005 Act for the purpose of determining the rights under Sections 17 and
19 read with Section 26 of the said Act of 2005.
The Court, however further clarified that the words “lives or at any stage has
lived” does not mean any place they have lived fleetingly including any
relative's residence, if the definition is broadened to this extent then that would
entirely destruct the motive of the Act and would lead to chaos. The living has
to have some form of permanency and should have the intention of the parties to
accept the premises as “shared household” property.

3. Prabha Tyagi v. Kamlesh Devi, 2022 SC -

The Hon’ble Supreme Court gave even a broader interpretation to the definition
of shared household and held that the right to reside in “shared household”
would include not only actual residence but also constructive residence in the
shared household. It is not mandatory for the aggrieved person to have actually
lived or resided with those persons against whom allegations have been made at
the time of seeking relief.
The victim of DV can enforce her right to reside in a shared household,
irrespective of whether she actually lived in shared household. Even if an
aggrieved person is not in domestic relationship in a shared household at the
time of filing of an application under section 12 but has at any time “had lived”
so or “had right to live” and has been subject to domestic violence or is later
subjected to domestic violence on account of domestic relationship, is entitled
to benefit of section 12.
The court also observed that the expression “joint family” cannot be understood
as understood under Hindu Law as the DV Act is religion neutral and covers all
the religions.

Reliefs Under DV Act -

1. Protection Orders (section 18) –

2. Residence Orders (section 19) -

In the case of Archana Goindi Khandelwal v Rajesh Balkrishnan Menon &
ors, 2022 SC, the Hon’ble SC clarified that in a dispute between the husband
and the wife under DV Act, the landlord, who otherwise is entitled to the decree
of eviction should not be made to suffer. If the wife has any grievance against
the husband, may be in respect of the alternate accommodation, the same is
required to be adjusted in the proceedings under the DV Act and/or any other
remedy which may be available to her against the husband.

3. Monetary reliefs (section 20) –

The Hon’ble Supreme Court on various occasions has clarified that the cause of
action for maintenance under section 125 crpc and that for monetary relief
under section 20 of DV Act are different and therefore both are independent
proceedings. Monetary relief under section 20 of DV Act can be in addition to
an order of maintenance under 125 of crpc or any other personal law.
However, while deciding the application for maintenance under the DV Act,
maintenance fixed under 125 crpc shall be taken into account, therefore, giving
some space to overlapping

Recently, the Hon’ble Delhi HC in the case of Jagmohan Kashyap v Govt. of

NCT of Delhi, 2022 DHC has observed that the right to claim maintenance
under the domestic Violence Act and those under Section 125 Crpc are not
mutually exclusive i.e. the aggrieved person can seek interim maintenance
before the magistrate while also seeking permanent maintenance under 125
Crpc.
The Hon’ble HC also upheld the order passed by the ASJ allowing the
application filed under section 5 of Limitation Act for condonation of a delay of
3 years and 99 days in filing an appeal against the order of MM. The court
observed that no doubt, inordinate delay would vest certain rights in the
opposite party but when it comes to the question of maintenance and welfare of
family members protected by the DV Act, there can be no vesting of such rights
that would result in the divesting of the rights assured by a special piece of
legislation.

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.

5. Compensation Orders (Section 22)

How is Order of Monetary Relief executed?

Section 20(6) provides that 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.

Criminal Provisions under DV Act-

1. Section 31 – Penalty for breach of protection order or an interim protection
order by respondent
2. Section 33 – Penalty for failure or refusal by protection officer from
discharging duty as directed by the Magistrate