Domestic Violence , What to do ?
Remedies for a Married Women :-Divorce.
A decree
of divorce dissolving marriage, whether solemnized before or after the
commencement of the Act, may be obtained by the husband or the wife on the
grounds set out in s 13 of the Act. The grounds are:
(i)
that the other spouse has committed adultery; or
(ii)
treated the petitioner with cruelty; or
(iii)
has deserted the petitioner for a period of two years; or
(iv)
has ceased to be a Hindu by conversion to another religion; or
(v)
has been incurable of unsound mind or suffering from mental disorder as set out
and explained in that section; or
(vi)
has been suffering from a virulent and incurable form of leprosy; or
(vii)
has been suffering from venereal disease of a communicable form; or
(viii)
has renounced the world by entering any religious order; or
(ix) has not been heard of as being alive for
a period of seven years or more.
In
addition to these grounds, a wife can seek dissolution of marriage on the
following grounds:
(i)
in the case of any marriage solemnised before
the commencement of this Act, that the husband had married again before such
commencement or that any other wife of the husband, married before such
commencement, was alive at the time of the solemnisation of the marriage of the
petitioner, that in either case the other wife is alive at the time of the
presentation of the petition; or
(ii)
that the husband has since the solemnisation
of the marriage, been guilty of rape, sodomy or bestiality; or
(iii)
that a decree or order of the court has been
made against the husband awarding maintenance to the wife, notwithstanding that
she was living apart and that since the passing of such decree or order
cohabitation between the parties has not taken place for one year or upwards;
also
(iv)
dissolution of the marriage on the ground
that her marriage was solemnised before she attained the age of 15 and she
repudiated the marriage before attaining the age of 18 (even if the marriage
had been consummated).
Clause (i): Adultery. --It must be noticed that after the Amending Act of 1976, a petition for divorce can lie at the instance of the husband or the wife, if the other party has after the solemnization of the marriage committed even a single act of adultery. under this section it is not necessary now to show that the respondent is living in adultery. Adultery in matrimonial law is one of the principal grounds for relief, and has been defined as consensual sexual intercourse between a married person and another person of the opposite sex during the subsistence of the marriage. .
The High Court of Madhya Pradesh distinguishing the judgment of the Supreme Court in V. Bhagat v. D. Bhagat, and Chetandass v. Kamladevi, , and the decision of Chandralekha Trivedi has held that when alleged serious allegations about the character of the spouse were not proved and he had also not cooperated in reconciliation proceedings, no decree of divorce could be passed.
Clause (ia): Cruelty.
In Dastane v. Dastane, the Supreme
Court critically examined the matrimonial ground of cruelty and observed that
the inquiry in any case covered by that provision had to be whether the conduct
charged as cruelty is of such a character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or injurious for
the petitioner to live with the respondent. It was also pointed out that it was
not necessary, The behavioral indiscretion by way of cruelty
must be on part of the respondent. Behavior of the relatives of the respondent
cannot be termed as cruelty by the respondent.
In Shohba
Rani v. Madhukar Reddi, the Supreme Court examined the sub- s
13(1)(ia) and stated that there could be
cases where the conduct complained of itself may be 'bad enough and per se
unlawful or illegal'. Then the impact or the injurious effect on the other
spouse need not be inquired into or considered. In such cases, cruelty will be
established, if the conduct itself is proved or admitted.
Mental cruelty. --The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence, is of greater cogency in cases falling under the head of mental cruelty.
When the whole conduct of the spouse shows instances of
ill-treatment, use of abusive language and allegations which amount to casting
aspersions on the fidelity of the other spouse and in general have the effect
of demoralizing the spouse, against whom the allegations are leveled, causing
mental stress and agony, mental cruelty would be proved.
The Supreme Court has analysed the concept of cruelty and has set out some instances of what may constitute cruelty. Those instances are a representative matrix of cruelty and, as pointed at by the court itself, not exhausting. Mental cruelty on the facts of the case would be a state of mind which may exist in the psyche or mind of the wronged spouse which may produce feelings of anguish or frustration at the existing state of matrimonial relation.
Reiterating the principles of divorce on the ground of
cruelty and considering its earlier pronouncements, the Supreme Court held that
divorce on the grounds of proven conduct could be granted. In given facts, even subsequent events
posterior to the institution of proceedings can be considered.
In Jamieson v. Jamieson, Lord Merriman reviewed the law on the subject and
pointed out that actual intention to
injure was not an essential factor, and that intentional acts may amount to
cruelty even though there was no intention of being cruel. Motive, malignity or
malevolent intention, it is well-recognized, are not essential ingredients but
where they exist, they would be factors of considerable importance for facts
done with malevolence are likely to bear fruit in acts of a serious and grave
nature. In a doubtful case actual intention to hurt may even be of decisive
importance. Where there is proof of a deliberate course of conduct on the part
of one intended to hurt and humiliate the other spouse, persistence in cruelty
can easily be inferred. Studied neglect or a course of degradation may well
prove more deleterious in the circumstances of a case. As pointed out by
Lord Reid, in the case mentioned above, there
could hardly be a more grave matrimonial offence than to set out on a course of
conduct with the deliberate intention of wounding and humiliating the other
spouse. Where such course of conduct is shown, it is no answer that there was
no actual intention to treat the other spouse with cruelty.
It was held, in the case referred to above, that if the conduct complained of and its consequences were so bad that the complaining spouse must have a remedy, then it did not matter what was the state of mind of the offending spouse. The question which the court asks itself is--whether this conduct by this man, to this woman or vice versa is cruelty. Marital discord is not dependent upon the number of incidents or relentless course of events but must be judged from the impact and gravity of the conduct complained of.
Clause (ib): Desertion: Separation:.—
The expression 'desertion' in the context of matrimonial
law represents a legal conception and is only very difficult to define. The
essence of desertion is the forsaking and abandonment of one spouse by the
other without reasonable cause and without the consent or against the wish of
the other. It has been said more that once that no judge has ever attempted to
give a comprehensive definition of desertion, and that probably no judge would
ever succeed in doing so, but among the descriptions of desertion one which has
always appealed to courts trying matrimonial causes is that 'desertion' is 'a
withdrawal not from a place, but from a state of things'. The clause lays down
the rule that desertion to amount to a matrimonial offence must be for a
continuous period of not less than two years immediately preceding the
presentation of the petition.
The offence of desertion is a course of conduct which exist independently of its duration, but as a ground for...it must exist for a period of at least...years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge of the answer. Desertiondiffers from the statutory grounds on adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.”
Bipin Chander v Prabhawati,
Divorce by mutual consent.
The court
may have to pass a decree for divorce by mutual consent of the parties, as now
enacted by the Amending Act of 1976 in s 13B of the Act. This is where the
requirements of that section are satisfied and not otherwise.
The
requirements of the section are:
(i) There
must be a petition jointly presented to the court by both the parties to the
marriage.
(ii) The
grounds for dissolution of the marriage by a decree for divorce must clearly
and categorically show:
(a) that
the parties have been living separately for a period of one year or more before
the presentation of the petition;
(b) that
they have not been able to live together; and
(c) that
they have mutually agreed that the marriage should be dissolved.
The granting
of the decree in a properly presented petition as above is not a matter of
discretion with the court, but the court shall pass a decree--subject to the
provisions of the Act--and after following the procedure and in the manner
prescribed by sub-s (2). These are:
(i) Both
the parties must apply to the court not earlier than six months of the
presentation of the petition and not later than 18 months after that date that
the petition may be heard and decree dissolving the marriage may be granted;
(ii) the court
must give a hearing to the parties;
(iii) the
court may make such inquiry into the correctness of the grounds set out in
sub-s (1);
(iv) the
court must thereafter be satisfied that the marriage of the parties had been
solemnised after the Act came into force in 1955 and that the averments in the
petition are true. 595
When all
the ingredients are proved, a decree of divorce cannot be refused. The period of separation of one year is
mandatory and the statutory conditions have to be adhered to. The section is
not ultra vires the Constitution on the ground of great hardship and
inconvenience.
Ex parte Divorce.
The court
can pass an ex parte decree of divorce, given the circumstances of the case, Section 21 of this Act staes that proceedings
under this Act are regulated by the provisions of the Code of Civil Procedure
1908.
Jurisdiction of Courts
Section 19
of the Hindu Marriage Act lays down that a petition in any matrimonial cause
may be presented to the district court within the local limits of whose
Jurisdiction –
(a) The marriage was solemnized, or
(b) The respondent at the time of the presentation of
petition resided, or
(c) The parties to the marriage last resided together, or
(d)The
petitioner is residing at the tiem of the presentation of petition, in a case
where the is at that time residing outside the territories to which the act
extends or hasn’t been heard of as being alive for a period of 7 years or more.
Section 24.Maintenance pendente lite and expenses of proceedings.-
Where in
any proceeding under this Act it appears to the court that either the wife or
the husband, as the case may be, has no independent income sufficient for her
or his support and the necessary expenses of the proceeding, it may, on the
application of the wife or the husband, order the it may, on the application of
the wife or the husband, order the respondent to pay to the petitioner the
expenses of the proceeding, and monthly, during the proceeding such sum as,
having regard to the petitioner's own income and the income of the respondent,
it may seem to the court to be reasonable. [ Provided that the application for
the payment of the expenses of the proceeding and such monthly sum during the
proceeding, shall, as far as possible, be disposed of within sixty days from
the date of service of notice on the wife or the husband, as the case may be.]
Maintenance pendente lite .--The right of a wife for maintenance is an incident of
the status or estate of matrimony. In general, therefore, the husband is bound
to defray the wife's costs of any proceeding under the Act and to provide for
her maintenance and support pending the disposal of such proceeding. The
doctrine of alimony, which expression in this strict sense means allowance due
to wife from husband or separation from certain causes, has its basis in social
conditions in England under which a married woman was economically dependent
and almost in a position of tutelage to the husband and was intended to secure
justice to her, while prosecuting or defending proceedings under matrimonial
law. It is also recognised that when the wife has separate means sufficient for
her defence and subsistence, she should not be entitled to alimony nor costs
during the proceeding; and if the husband has neither property nor earning
capacity, the court would not award any interim alimony. It is on these
principles that the law relating to matrimonial causes provides for rules for
payment of maintenance pendente lite and expenses of proceedings by the husband
to the wife. This section adopts those principles and goes one radical step
further when it prescribes that any such order can be made not only in favour
of the wife but also in favour of the husband. The expressions 'respondent' and
'petitioner' in the section obviously refer to the respondent and petitioner to
the interlocutory application for alimony pendente lite and for provision for
costs, and not to the petitioner and respondent to the substantive petition.
There is no scope for doubt that the application under the section can be made
by a spouse who may be the petitioner or the respondent to the substantive
proceeding for any of the reliefs under the Act. Nevertheless, a contrary
contention seems to have been raised in some cases and discountenanced.
Hindu Adoptions and Maintenance Act , 1956.-- Section 18 of the Hindu Adoptions and Maintenance Act , 1956 lays down the rule relating to the personal legal obligation of a husband to maintain his wife. The mere fact that a wife has adopted proceedings under that section is no bar to her claiming any relief under this Act and also claiming interim maintenance under the present section. The very object and purpose of the present section is to provide immediate relief to her in any proceeding adopted by her under this Act. The position wou ld be the same if the proceeding under this section had been started by the husband. Proceedings under this section are in no way inconsistent with provisions of s 18 of the Hindu Adoptions and Maintenance Act and are not hit by s 4(b) of that Act. 205 Maintenance would include educational expenses under the Hindu Adoptions and Maintenance Act , 1956. The remedy however, is to claim such expenses under the said Act. So far as proceedings under section 20 of the Hindu Adoptions and Maintenance Act , 1956, as regards maintenance of children are concerned, it has been held that such proceedings are independent of the present section 24 of this act and have no correlation to that provision under that enactment.
Code of Criminal Procedure .--The mere fact that there is a pre-existing order for
maintenance against the husband under the Criminal Procedure Code would not bar
the court from making an order under this section in the exercise of its
discretion. Nor will the mere fact that the wife was denied maintenance in
proceedings under s 125 of the Criminal Procedure Code. The amount awarded under s 125 of the code is
adjustable against the amount awarded in proceedings under this section.
Sec 25.Permanent alimony and maintenance.-
(1) Any
court exercising jurisdiction under this Act may, at the time of passing any
decree or at any time subsequent thereto, on application made to it for the
purpose by either the wife or the husband, as the case may be, order that the
respondent shall pay to the applicant for her or his maintenance and support
such gross sum or such monthly or periodical sum for a term not exceeding the
life of the applicant as, having regard to the respondent's own income and
other property, if any, the income and other property of the applicant, the
conduct of the parties and other circumstances of the case, it may seem to the
court to be just, and any such payment may be secured, if necessary, by a
charge on the immovable property of the respondent.
(2) If the
court is satisfied that there is a change in the circumstances of either party
at any time after it has made an order under sub-section (1), it may, at the
instance of either party, vary, modify or rescind any such order in such manner
as the court may deem just.
(3) If the
court is satisfied that the party in whose favour an order has been made under
this section has remarried or, if such party is the wife, that she has not
remained chaste, or, if such party is the husband that he has had sexual
intercourse with any woman outside wedlock, it may at the instance of the other
party vary, modify or rescind any such order in such manner as the court may
deem just.
Permanent alimony and maintenance .--The section, although it recognizes the right of the
wife and the husband to be in equali jura in the matter of maintenance, when a
decree is passed granting relief in any matrimonial cause, is primarily
intended to secure maintenance and support for the wife in whose favour a
decree is made, granting any of the reliefs under the Act. In the majority of
cases that come before the court the decree is for judicial separation or for
divorce on the ground of the delinquency of the other spouse who is charged
with having committed adultery or cruelty or with desertion. The obligation of
the husband to provide for his wife's maintenance and support does not come to
an end simply on the passing of a decree for any of the reliefs which the court
is empowered to grant under the Act even when the decree is in favour of the
husband. The court is empowered to direct that the amount to be paid by one
spouse to another shall be in the form of a gross sum or in the form of monthly
or other periodical payments. The duration of such payments is limited to the
life of the applicant. The court is also empowered to vary, modify or rescind
any such order in view of change in the circumstances of any party. The order
may be rescinded upon proof of remarriage or unchastity of the party in whose
favour it has been made. It is the duty of the court to ascertain entitlement,
capacity and quantum of maintenance. Attention is invited to the observations
in the judgment herein..--The section, although it recognises the right of the
wife and the husband to be in equali jura in the matter of maintenance, when a
decree is passed granting relief in any matrimonial cause, is primarily
intended to secure maintenance and support for the wife in whose favour a decree
is made, granting any of the reliefs under the Act. In the majority of cases
that come before the court the decree is for judicial separation or for divorce
on the ground of the delinquency of the other spouse who is charged with having
committed adultery or cruelty or with desertion. The obligation of the husband
to provide for his wife's maintenance and support does not come to an end
simply on the passing of a decree for any of the reliefs which the court is
empowered to grant under the Act even when the decree is in favour of the
husband. The court is empowered to direct that the amount to be paid by one
spouse to another shall be in the form of a gross sum or in the form of monthly
or other periodical payments. The duration of such payments is limited to the
life of the applicant. The court is also empowered to vary, modify or rescind
any such order in view of change in the circumstances of any party. The order
may be rescinded upon proof of remarriage or unchastity of the party in whose
favour it has been made. It is the duty of the court to ascertain entitlement,
capacity and quantum of maintenance. Attention is invited to the observations
in the judgment herein.
Maintenance and right of residence.-- It has been accepted that a right of maintenance under matrimonial law, also includes a right of residence. There was, up to this point of time however, no judicial pronouncement of courts in India, clearly laying down the legal position, except a decision of the High Court of Calcutta in relation to s 18 of the Hindu Adoptions and Maintenance Act , 1956, which held that the right of a wife to reside in the matrimonial home ensures till the determination of matrimonial proceedings. The right of the wife to enforce her right of residence in the matrimonial home has hitherto been recognized under Shastric Hindu Law and the subsequent statutes. The wife can of course claim such a right against the property in the hands of an alienee with notice of her claim.
Sec 26.Custody of children.-
In any
proceeding under this Act, the court may, from time to time, pass such interim
orders and make such provisions in the decree as it may deem just and proper
with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, after the decree,
upon application by petition for the purpose, make from time to time, all such
orders and provisions with respect to the custody, maintenance and education of
such children as might have been made by such decree or interim orders in case
the proceeding for obtaining such decree were still pending, and the court may
also from time to time revoke, suspend or vary any such orders and provisions
previously made.
THE Hindu
Adoptions and Maintenance Act, 1956
Sec 18.Maintenance of wife.-
(1)
Subject to the provisions of this section, a Hindu wife, whether married before
or after the commencement of this Act, shall be entitled to be maintained by
her husband during her lifetime. (2) A Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to maintenance-
(a) if he
is guilty of desertion, that is to say, of abandoning her without reasonable
cause and without her consent or against her wish, or wilfully neglecting her;
(b) if he
has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of
leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house
in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he
has ceased to be a Hindu by conversion to another religion; (g) if there is any
other cause justifying her living separately.
(3) A
Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another
religion.
Jursidiction.--This act does not stipulate the territorial jurisdiction where proceedings can be initiated. In these circumstances, resort must be had to the provisions of the Code of Civil Procedure and section 19 of the Hindu Marriage Act .
Sec 20.Maintenance of children and aged
parents.-
(1)
Subject to the provisions of this section a Hindu is bound, during his or her
lifetime, to maintain his or her legitimate or illegitimate children and his or
her aged or infirm parents.
(2) A
legitimate or illegitimate child may claim maintenance from his or her father
or mother so long as the child is a minor.
(3) The obligation of a person to maintain his
or her aged or infirm parent or a daughter who is unmarried extends in so far
as the parent or the unmarried daughter, as the case may be, is unable to
maintain himself or herself out of his or her own earning or property.
A Hindu is
under a legal obligation to maintain his wife, his minor sons, his unmarried
daughters and his aged parents, whether he possesses any property or not. The
obligation to maintain these relations is personal, legal and absolute in
character, and arises from the very existence of the relationship between the
parties. The section is couched in broad
terms. Read with s 21 , this section defines the persons who are entitled to
maintenance
The
visitation right conferred on the spouse can be curtailed till the order of
maintenance is complied with. Neither of the parents can escape liability by
raising the plea that the responsibility of maintenance has been taken over by
the other parent.
Other
Remedies for Women
Criminal
Procedure Code (Cr.P.C.) :-
Sec 125.Order for maintenance of wives, children and
parents
.- (1) If
any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is by reason of any
physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the
first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father
or mother, at such monthly rate not exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the
Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if married, is not
possessed of sufficient means.
Explanation.- For the
purposes of this Chapter, -
(a) "minor"
means a person who, under the provisions of the Indian Majority Act, 1875( 9 of
1875) is deemed not to have attained his majority;
(b) "wife"
includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.
(2) Such
allowance shall be payable from the date of the order, or, if so ordered, from
the date of the application for maintenance.
(3) If any person so
ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such
person, for the whole or any part of each month's allowance
remaining unpaid after the execution of the warrant, to imprisonment for
a term which may extend to one month or until payment if sooner made:
Provided that no
warrant shall be issued for the recovery of any amount due under this section
unless application be made to the Court to levy such amount within a period of
one year from the date on which it became due:
Provided further that
if such person offers to maintain his wife on condition of her living with him,
and she refuses to live with him, such Magistrate may consider any grounds
of refusal stated by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is a just ground for
so doing.
Explanation.- If a husband
has contracted marriage with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be
entitled to receive an allowance from her husband under this section if she is
living in adultery, or if, without any sufficient reason, she refuses to live
with her husband, or if they are living separately by mutual consent.
(5) On proof
that any wife in whose favour an order has been made under this section is
living in adultery, or that without sufficient reason she refuses to live with
her husband, or that they are living separately by mutual consent, the
Magistrate shall cancel the order.
REMEDY UNDER CRIMINAL
LAW
Sec 498A IPC:- HUSBAND
OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY: Whoever, being the husband or the relative of
the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be
liable to fine.
Explanation: For the purposes of
this section, "cruelty" means
(a) Any willful conduct which is
of such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or
(b) Harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for any
property or valuable security or is on account of failure by her or any person
related to her to meet such demand.
Analysis of the section shows that this law
deals with four types of cruelty:
• Any conduct that is likely to drive a woman
to suicide,
• Any conduct which is likely to cause grave
injury to the life, limb or health of the woman,
•
Harassment with the purpose of forcing the woman or her relatives to give some
property, or
• Harassment because the woman or her
relatives are either unable to yield to the demand for more money or do not
give some share of the property.
Section 498A of the Indian Penal Code, is a
criminal offence. It is a cognizable, non-bailable, and non-compoundable
offence.
REMEDY
UNDER PROTECTION OF DOMESTIC VIOLENCE ACT
Definition
of “Domestic Violence”(Sec. 3) The
Act defines “Domestic Violence”
for the first time in Indian law. It is a comprehensive definition and captures
women’s experience of abuse and includes not only physical violence but also
other forms of violence such as emotional / verbal, sexual, and economic abuse. The Act recognizes domestic violence as a
human rights violation. It recognizes a woman’s right to live in a
violence-free home. To realize this right, the Act recognizes a woman’s right
to residence and her right to obtain protection orders under the law.
The reliefs provided in the Act are meant to
provide immediate relief in emergency situations The Act does not make any changes in the existing
personal law regime on family matters. The reliefs under the Act are in
addition to existing laws and have been recognized with the objective of
empowering a woman to tide over an emergency situation. Having obtained relief
under the law, a woman can still go for relief under other laws later.
Access to justice and the availability of
infrastructure Recognizing that a woman requires assistance with legal
procedures and other forms of support, the PWDVA allows for the appointment of
Protection Officers, and recognizes the role of Service Providers in providing
medical, shelter, legal, counseling and other kinds of support services. The
Protection Officer is the person in charge to assist women to avail of these
facilities as well as assist her in obtaining the appropriate order under the
Act.
Procedures to obtain orders, reporting of
violence and the consequence of breaching the obtained orders The Act includes provisions for making Domestic Incident
Reports which will serve as important records at the stage of evidence taking.
The manner in which the applications for orders under the Act have also been
mentioned in the Act. Finally, the Act provides that the breach of an order
obtained is a criminal offence.
PWDVA
It is a civil law for protection orders and
not meant to penalize or punish.It recognizes the right to residence of woman,
It recognizes the right of the woman to live in a violence-free home and that she should not be
facing violence It provides only temporary and emergency relief. It is a law in
response to the needs of the woman. It has certain crossovers from civil to
criminal law—so when the protection order or
Magistrate’s order is violated, criminal law will start
Procedures
involved under the PWDVA
Step 1
(Sec 4): Informing the Protection Officer: Any
person who has reason to believe that such an act has taken place or is likely
to take place can inform the Protection Officer.
Step 2(Sec
5): Aggrieved woman should be informed of her
rights under the law: A police officer, Protection Officer, Service Provider or
Magistrate who has received a complaint shall inform her of: Her right to make
an application for obtaining relief by way of protection order, an order for
monetary relief, a custody order, a residence order, a compensation order; The
availability of services of the Protection Officers, Service Providers,
including shelter homes, medical facilities, etc. Her right to free legal
services under the Legal Services Authorities Act 1987; and her right to file a complaint under section 498 A of the
Indian Penal Code.
Step 3(Sec
9): Making the Domestic Incident Report and other
responsibilities of the Protection Officer: The Protection Officer makes a
Domestic Incident Report to the Magistrate and forwards copies there of to the
Police Officer in charge. She/he ensures that:
The aggrieved person gets all the benefits
mentioned A list of all Service Providers is maintained and that the aggrieved
person has access to counseling, shelter homes and medical facilities where
required;
Step 4(sec
12): Once the matter is with the Magistrate: The
Magistrate shall fix the first date of the hearing, which shall not ordinarily
be beyond three days from the receipt of the application by the Court, and
shall endeavour to dispose every application within a period of 60 days from
the date of the first hearing.
Step 5(Sec
13): Informing the respondent of the date of
hearing: A notice of the date of hearing shall be given by the Magistrate to
the Protection Officer who shall serve it on the respondent and on any other
person as directed by the Magistrate within a maximum period of two days.
Step 6(Sec
14): Other options with the Magistrate:
·
The Magistrate may Direct either of the
parties, singly or jointly, to undergo counseling;
·
Seek assistance of a person, preferably a
woman, engaged in promotion of family welfare, for assisting him/her in discharging his/her
functions;
·
Conduct the proceedings in camera.
Step 7(Sec
17): Where does she stay in the meantime?
Aggrieved person has the right to reside in a shared household, whether or not
she has any right, title or beneficial interest in the house and shall not be
evicted.
Step 8(Sec
18)::
How is she protected in the interim? The Magistrate, after giving both parties
an opportunity of being heard, and satisfied that domestic violence has taken
place, can pass a protection order or a residence order, direct the respondent
to pay the aggrieved person monetary relief and in addition, can pass
compensation orders, custody orders and ex-parte orders. The Magistrate shall
ensure that a copy of any such order shall be given free-of-cost to the
parties.
Step 9(Sec
31):: What if the protection order is breached?
If the protection order has been breached, it shall be punished with either
imprisonment or fine or both.
Step
10(Sec 37):: Who will ensure that all this is done? The
Central and the State Government shall take measures to ensure that:
·
Provisions of this Act are given wide
publicity through media;
·
Central and State government officers
including police officers, members of the judicial services, etc., are given
periodic sensitization and awareness trainings on issues addressed by this Act;
·
There is effective coordination between the
services provided by concerned Ministries and
Departments dealing with law, home affairs, health and human resources,
and that there is a periodic review of the same.
Shelter and medical assistance to the aggrieved person
·
The
shelter homes and the medical facility are under a legal obligation to provide
shelter or medical facility to the aggrieved person.
·
Copy of medical examination report is to be
provided free of cost to the aggrieved person.
Qualifications
and appointment of Protection Officer
·
Protection Officer either to be a government
servant or a social worker working for women and child welfare, with a post
graduate degree in Humanities or Law.
·
One or more Protection Officer within the
jurisdiction of each Judicial Magistrate.
Functions
and duties of Protection Officer
·
To inform aggrieved person of her rights
under the Act
·
To
provide all forms and applications and assistance to the aggrieved person
·
Make a
safety plan and take adequate measures in view of the safety plan
·
Enforce the orders of the Court as and when
directed by the Court
Appointment
of counselors and counseling
·
The Court can direct counseling for an
amicable of the matter by the parties.
·
Counseling can be directed on admission of alleged
misconduct and undertaking not to repeat the same by the respondent.
Enforcement
of orders passed under the Act and consequences of breach of protection order.
·
The breach of orders of the court under the
Act shall amount to cognizable, non-bailable offence warranting immediate
arrest and summary trial.
Counseling
process
·
Section 14 provides that a Magistrate can, at
any stage of the proceedings, direct the aggrieved person and the respondent,
either singly or jointly, to undergo counseling. Under Section 15, a Magistrate
can requisition the services of a person engaged in “promoting family welfare”
to assist him/her in discharging his/her functions. Both these provisions did
not form part of the Draft Bill submitted to the Ministry. But since these
provisions are present in the law, it becomes imperative to lay down a
comprehensive procedure that ensures that these provisions will not be used
against women in their struggle for justice. Hence, the format and manner in
which the Rules have been formulated reflect this concern.
Safety
Plan for the aggrieved person
·
it is also stated that on an application
being moved under Section 12, the Protection Officer shall prepare a “safety
plan” which shall include measures to prevent further violence after making an
assessment of the dangers involved.
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