Domestic violence proceedings

The 2005 Act is civil legislation heard by a criminal court. It does not send anyone to prison at the outset; it produces orders — protection, residence, money, custody, compensation — and only breach of those orders is an offence.

• s. 12 PWDVA 2005
• s. 18 protection
• s. 19 residence
• s. 20 monetary relief
• s. 21 custody
• s. 22 compensation
• s. 23 interim
• s. 31 breach

What the Act covers

The Protection of Women from Domestic Violence Act, 2005 defines domestic violence far more broadly than physical assault. Section 3 covers physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse — the last including deprivation of financial resources, of stridhan, of household necessities, and disposal of assets in which the aggrieved person has an interest. Harassment connected with an unlawful demand for dowry is expressly included.

Who can file, and against whom

An application under section 12 may be made by an aggrieved woman who is or has been in a domestic relationship with the respondent — a relationship of consanguinity, marriage, a relationship in the nature of marriage, adoption, or family members living together in a joint family. The Supreme Court has confirmed that a respondent under the Act is not limited to adult males; female relatives of the husband may be respondents. The remedy is available irrespective of religion, and irrespective of whether the marriage is registered.

The five reliefs

1. Protection order, section 18. Restraining the respondent from committing violence, entering the aggrieved person's workplace or school, communicating with her, alienating assets, or causing violence to her relatives.
2. Residence order, section 19. Securing the right to reside in the shared household. The court can restrain the respondent from dispossessing her, direct him to remove himself from the household, restrain the alienation of the household, or direct alternative accommodation of the same level to be provided. It cannot order a woman to be removed from the shared household.
3. Monetary relief, section 20. Loss of earnings, medical expenses, loss caused by destruction or removal of property, and maintenance — which may be in addition to maintenance ordered under any other law.
4. Custody order, section 21. Temporary custody of children, with visitation to the respondent unless that would be harmful to the child.
5. Compensation order, section 22. For injuries including mental torture and emotional distress.

How the application proceeds

1. Application under section 12 to the Judicial Magistrate, ordinarily where the aggrieved person resides, where the respondent resides, or where the cause of action arose. Residence-based jurisdiction matters: a woman who has moved back to Gurgaon can file here.
2. Domestic incident report. The Magistrate takes into consideration a report from the Protection Officer or a service provider, where one has been made. An application does not fail merely because no report exists.
3. Notice to the respondent, to be served within the period the Act contemplates.
4. Reply and evidence, including affidavits and cross-examination.
5. Counselling. The Magistrate may direct the parties, singly or jointly, to counselling.
6. Final order, granting or refusing the reliefs sought. An appeal lies to the Court of Session within thirty days under section 29.

Interim and ex parte orders

Section 23 allows the Magistrate to pass interim orders and, on an affidavit disclosing that the respondent is committing or has committed domestic violence, to pass an ex parte order granting any of the reliefs. In practice interim residence and monetary relief are what an applicant most often needs immediately, and they are sought at the first hearing rather than at the end.

Breach of an order

Section 31 makes breach of a protection order an offence punishable with imprisonment which may extend to one year, or fine, or both. This is where the Act acquires criminal consequences — not on filing, but on disobedience of an order already made.

If an application has been filed against you

A respondent has real defences and should not treat the proceeding as a formality. The matters commonly raised are that no domestic relationship exists or subsisted as defined, that the property claimed is not a shared household within the meaning of the Act, that the reliefs sought duplicate orders already made in other proceedings, that the allegations are unparticularised as to date and incident, and that the applicant's own financial disclosures are incomplete. Every one of these is a question of evidence, and the reply is the document that frames them.

Questions we are asked most often