Case laws on important
provisions
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“The
Protection of Women from Domestic Violence Act, 2005” is enacted
with a specific object to protect the human rights of the women who
are abused in various manner. On the global level this phenomenon of
domestic violence was considered and the United Nations Committee on
Conventions of Eliminations of All Forms of Discrimination Against
Women (CEDAW) in its general recommendations has recommended that
State party should act to protect women against violence of any kind
especially that occurring within the family. Recognizing the fact
that, domestic violence is widely prevalent and has become universal
problem of power relationship and it is attributed not only within
the families but also on various levels wherever the women are
working or visiting for their domestic needs. The necessity to enact
the legislation for protection of women from domestic violence is
outcome of such circumstances. It is necessary to think that already
various pro-women legislations were in existence. But, due to the
lack of legal awareness rigidity in implementation, women were
subjected to domestic violence on various levels.
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2. Domestic violence is
widely prevalent, however most of the time it is invisible in the
public. Keeping in view the rights guaranteed under Articles 14,15
and 41 of the Constitution of India, to provide for a remedy under
the Civil Law which is intended to protect the woman from being
victim of domestic violence and to prevent the occurrence of domestic
violence in the society the bill was introduced.
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3. The Act defines the
expression “Domestic Violence” covering the actual abuse or
threat or abuse i.e. physical, sexual, verbal, emotional or economic,
it has also covered harassment at the hands of in-laws for the
unlawful demand of dowry. It has provided a right to a woman to
secure housing as to reside in her matrimonial home or shared
household irrespective of the fact that, she has interest or right in
such home or household. This Act has empowered Magistrates to pass
various orders for the implementation of the Scheme of this Act.
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4. The
PWDVA recognizes three important rights:
The right to be
free from violence, which is to be inferred from the definition of
domestic violence contained in section 3.
The right to
reside in the shared household is recognized in section 17.
The right to
seek remedies under this law is provided for in section 12.
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5.
Various reliefs which
can be granted under the said Act are as under:
(a)
Under Section 18, protection order can be passed in
favour of
the aggrieved person;
(b) Under Section 19,
residence order can be passed in favour of the aggrieved person;
(c)
Section 20 provides for grant of monetary relief of maintenance,
medical expenses, loss of earnings etc.;
(d)
Section 21 confers power on the learned Magistrate to pass
orders regarding custody of a child;
(e)
Section 22 confers power on the learned Magistrate to pass orders regarding compensation; and
(f)
Section 23 of the said Act confers power on the learned
Magistrate to pass ex parte orders granting ad interim relief or
interim relief in terms of the provisions of Section 18, 19, 20,
21 and 22 of the said Act.
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6. It is true that, the
reliefs were available to women under the Civil Laws but the
implementation was not speedy. Now, the aggrieved person can obtain
an injunction against dispossession, can secure maintenance for a
destitute wife and her minor children. Now, the Judges are not only
bound to provide relief to a woman under this law but, they have to
act according to the ideological framework of the enactment. The
Courts have to provide a speedy and less expensive alternative to the
aggrieved parties. Due to the new enactment the victims or aggrieved
women would be saved from the trouble of running from one Court to
other to claim her dues and enforce her right for maintenance,
dispossession from the matrimonial home and alternative residence as
under the provisions of this Act the jurisdiction for claiming all
these relief is now vested with the Magistrates.
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7. Since PWDVA is a civil
statute all stages of civil trial will have to be followed. Trial
procedures are technical and involve procedural aspects and the
parties may need lawyers at this stage even if they have not engaged
the services of a lawyer earlier.
8. Any of the parties can ask
for “closed door” or “in camera” hearing proceedings .
When we examine the
provisions of the act it is evident that the term 'aggrieved woman'
is applicable to any woman irrespective of her age. The term would
also apply to an unmarried, deserted or divorced woman and also to a
widow, as the term 'lives or at any stage has lived” suggests.
This phrase used in S 2(s) of the Act defines the term “shared
household “ as household where the person aggrieved lives or at any
stage has lived in a domestic relationship. Women within wide range
of relationships are entitled to claim reliefs under this Act against
their corresponding male relatives eg wives against their husbands,
divorce women against their ex husbands daughters against their
fathers, widows against their natal and parental family
members.mothers against their sons,etc. In addition the female
relatives of the husband/live in partner can also be added as parties
to the proceedings. The divorced women can also claim relief under
this act.
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9. Even women in past
relationships are entitled to reliefs under the PWDVA .It is observed
in Karimkhan Vs
State of Maharashtra 2011 Cri LJ 4793 Bom,
that the interpretation that furthers the object of the statute
should be adopted, rather that the one that defeats the purpose of
the statute. If a widow is thrown out of her shared household after
the death of her husband she can claim relief under the provisions of
the PWDVA .
10. To facilitate the process
of obtaining urgent reliefs under the Act, the jurisdiction is also
given to other civil or criminal courts where other proceedings are
pending or are initiated on behalf of the woman to avoid multiplicity
of proceedings as mentioned under section 26 of the Act.
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11. The procedures to be
followed under PWDVA are stipulated in section 28 of the Act. As per
the provisions, the Magistrate is to follow the procedures of
CR.P.C.but has the liberty to lay down further procedures in the
interest of justice. This provision gives some leeway to the
Magistrate and in certain situation they can avoid the strict
procedures prescribed under the Cr. P.C. and can even resort to
procedures in the CPC.
12. The quasi civil, quasi
criminal nature of the Act provides the scope to interpret the
provisions in a very wide manner to effectively protect women.
13. In criminal proceedings,
amendments to a complaint are not permitted. Under the PWDVA though
the jurisdiction is in the Magistrates court the proceedings are not
criminal but are deemed to quasi civil. Hence amendments to
pleadings can be permitted.
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14.
Raosaheb
Kamble Vs Shaila Kamble 2010 Cri L J 3596 Bom
The wife had filed under
PWDVA and later made an application for amendment. The husband had
filed his reply objecting to the same. But overruling his objections
the Magistrate passed an order in favour of the wife. The husband
appealed against this ruling . The Honble High Court dismissed the
appeal on the ground that since the Act is civil in nature
amendments to the pleadings can be allowed. The Court further held
that as per Rule 6 of the PWDVA the order under the Act must be
enforced as per S 125 Cr.P.C. which proceedings are also quasi
judicial and hence , using the said frame work , amendments must be
allowed.
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15. To enable the court to
provide speedy remedy to an aggrieved woman. the Act dispenses with
the requirement of filing a separate applications Interim Reliefs.
Since all the orders under the Act are deemed to be temporary orders
and the main purpose of the Act is to provide the woman urgent and
immediate reliefs in order to safeguard her against further domestic
violence , the Act dispenses with all such technicalities of civil
law.
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16. In Vishal
Damodar Patil vs VishakhaVishal Patil 2009 C.L.J.107,
the wife who was out of the house, filed an application under the
PWDVA and claimed for maintenance and residential orders. The Court
gave her interim reliefs through which she re-entered the house.
Aggrieved by the orders. the husband filed an appeal in the Sessions
court but the same was rejected and hence he filed a revision
application in the High Court . It was argued on behalf of the
husband that the said orders were illegal as there was no separate
interim applicaation filed by the wife. The Honble High Court after
going through the various provisions i.e. S 12,S.23(2) , Rule (6) (7)
of the PWDV Rules held that there is no need for separate application
for interim reliefs and dismissed the husbands application.
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17. Since it is a beneficial
legislation, minor technical errors in the application filed by the
wife cannot be used to hinder the course of justice. An aggrieved
woman cannot be held to be liable for the errors. These errors are
bound to occur as the Act envisages less technical approach to
justice and primarily focuses to grant speedy remedies to the woman.
The error may have been committed by a protection officer or a
service provider or a lawyer assisting her in the proceedings and
she cannot be deprived of an order in her favour due to this. Since
the Act envisages a situation where an aggrieved woman herself can
approach the courts for relief without the aid of a representative
she cannot be expected to know all the legal requirements and
technicalities and the court must take this into consideration while
granting reliefs under this Act. In this respect , when such issues
were brought to the notice of the courts , they have held that undue
importance should not be given to minor errors and these can be
overlooked in view of the urgency of the case and the needs of the
concerned woman.
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18. As per section 9(1)(b)
of the D.V.Act it is the duty of the Protection Officer to file a DIR
in the Magistrate Court every time an aggrieved person approaches
him/her and is also expected to send a copy to the local police
station where the aggrieved person resides, even when the aggrieved
personn does not wish to file a formal complaint under PWDVA with the
Magistrate.
19. The PWDVA provides for
the institution of protection officers who are mandated to an
aggrieved woman in various ways and also to help the Ld Magistrate to
implement the orders. However this remains a major drawback of the
enactment as most States have not appointed protection officers with
independent charge. The officers appointed as POS have additional
charge in addition to their existing duties . This causes delay in
filing the initial domestic incident report(DIR). But merely because
the state administration has failed in its duty, the magistrate
cannot absolve their own responsibility in providing urgent
protection to a woman .
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20. In Manoj
Changani Vs Prema Changani, MANU/MH/0087/2012
the court observed that,”
though the report is necessary, it should be left to the discretion
of the Magistrate who can call for it at the appropriate stage, the
court commented that applications drafted by lawyers on behalf of the
applicants are extensive and cover all aspects which are required in
the complaint and therefore in such cases, the report of the PO may
not be relevant. However, if the application is a badly drafted, the
court may call for the report of the PO which will help the court”.
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21. In
Nandkishor
Vinchurkar Vs Kavita Vinchurkar ANU/MH/0957/2009
, the Court
held that the report of the protection officer was not necessary at
the interim stage as the purpose of interim reliefs is to provide the
immediate respite to the aggrieved woman and not to delay the same on
the ground that the report of the protection officer had not been
received. However, if the court considers necessary, the court can
order the protection officer to submit the report at a later stage if
it is necessary for the final determination of the issues
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22. ABHIJEET
BHIKASETH AUTI VS STATE OF MAHARASHTRA 2009 CRI LJ 889
In this case two issues were
discussed by the High Court. The first was the scope of S 29 of the
PWDVA with regards to the orders under PWDVA passed by the
magistrates court an any other court.
23. The court observed that
as per S 29 all orders under PWDVA are appealable be they interim or
final. However, the appellate court while dealing with interim and
expare ad interim orders shall not usually interfere with the
discretionary powers of the Magistrate. The appellate court shall
interfere only if it is found that the discretion has been exercised
arbitrarily, capriciously, perversely or it is found that the lower
court has ignored the settled principles of law regulationg the grant
or refusal of interim relief. Further an appeal shall not be
maintenable under section 29 with regards to purely procedural orders
which do not affect the rights and liabilities of the parties.
24. The High Court further
held that there shall be no appeal under Section 29 of the PWDVA with
regards to the orders passed by any court other than the Magistrate
court exercising jurisdiction under S 26 of the PWDVA while granting
any reliefs therein.
25. Under the PWDVA, it is
mandatory for the Magistrate to furnish the order copies to the
parties as well as to the officer in charge of police station and the
service provider, free of cost. This is because the Magistrate is
expected to monitor the implementation of his orders through the
protection officer, the police officer and the designated service
provider.
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26. Whether
a statute under a criminal law can have retrospective effect- this
has been one of the main concerns when orders are passed in favour of
the wife in respect of the acts of violence committed prior to the
Act coming into force. Criminal enactments cannot have retrospective
effect and a person cannot be1212
convicted for act committed prior to the enactment. But since the
PWDVA is a civil statute this principle does not apply. Even when
the specific incidents mentioned in the complaint have occurred prio
to the enactment, the courts have passed orders in favour of the
complainant and appeal courts have upheld these orders. This can be
done by invoking the principle that denial of maintenance or
depriving a woman her right of residence in the shared house hold are
offences of a continuous nature.
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27. One of the primary
concerns of the PWDVA is to provide immediate relief to women facing
domestic violence. It is the reason the Act prescribes simple
procures and dispenses with legal technicalities. Hebe, it is
mandatory for a court functioning under its provisions to grant
women urgent orders. Minor procedural lapses cannot be allowed to be
used as dilatory measures to delay justice which would result in
grave injustice to aggrieved woman. Since it was a novel statute
there were several technical and procedural issues that need to be
clarified and streamlined. Even while doing so , the courts have
stayed clear of controversies and have not lost the focus that the
primary aim of the enactment is to protect the rights of women. The
two aspects which have been the concern of the Act is that the
provisions should be given the widest possible scope and second, the
technical impediments should not be allowed to be used as dilatory.
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