February 11, 2019
Domestic Violence has been an age-old societal concern and women at home have been tormented and tortured by her own family members since time immemorial. However, a special legislation addressing the issue was formulated by the Parliament only in the year 2005.
The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the Domestic Violence Act) drafted for women empowerment and for protection of women against acts of violence in India came into force in the year 2005. The scope of this piece of legislation has been expounded in plethora of judgments by the High Courts and the Supreme Court in India.
What is a Shared Household?
Case name: S.R. Batra vs. Smt. Taruna Batra
In this case, the Supreme Court with reference to definition of shared household under Section 2(s) of the Domestic Violence Act stated that the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting requires to be interpreted in a sensible manner.
The Court held that under Section 17(1) of the Act wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. In the case, the property in question neither belonged to the husband nor was it taken on rent by him nor was it a joint family property of which the husband was a member. It was the exclusive property of mother of husband and not a shared household.
Women in Live-in Relationships Protected under the Domestic Violence Act
Case name: D. Veluswamy v. D. Patchaiammal
In this Supreme Court verdict, a wider meaning to an “aggrieved person” under Section 2(a) of the Domestic Violence Act was conferred by the Supreme Court, wherein the Court enumerated five ingredients of a live in relationship as follows:
- Both the parties must behave as husband and wife and are recognized as husband and wife in front of society
- They must be of a valid legal age of marriage
- They should qualify to enter into marriage eg. None of the partner should have a souse living at the time of entering into relationship.
- They must have voluntarily cohabited for a significant period of time
- They must have lived together in a shared household
The Supreme Court also observed that not all live-in-relationships will amount to a relationship in the nature of marriage to get the benefit of Domestic Violence Act. To get such benefit the conditions mentioned above shall be fulfilled and this has to be proved by evidence.
Status of a Keep- The Court in the case further stated that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or a servant it would not be a relationship in the nature of marriage.
In this case, the Court also referred to the term “palimony” which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying and is then deserted by him.
Estranged Wife or Live-in-Partner can Claim Maintenance u/Domestic Violence Act- Supreme Court
Case name: Lalita Toppo v. State of Jharkhand & anr.
In this recent case, the Supreme Court has categorically held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.
The Bench explained that the provisions contained in Section 3(a) of the Domestic Violence Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as domestic violence. The Court further opined that under the provisions of the Domestic Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.
Not all Live-in-Relationships are Covered under the Domestic Violence Act- Bombay HC
Case name: Reshma Begum v. State of Maharashtra & anr.
In the case, the issue that fell for consideration before the High Court of Bombay was the interpretation of provision of Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act).
With reference to the interpretation of the term “relationship” under Section 2(f) of the Domestic Violence Act, the Court noted that the interpretation put on the definition and particularly the words ‘relationship in the nature of marriage’ by the Supreme Court in Veluswamy’s case means:
- The couple must hold themselves out to society as being akin to spouses.
- They must be of legal age of marry.
- They must be otherwise qualified to enter into a legal marriage;
- They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time
In view of the aforesaid, the High Court opined that it was abundantly clear that not all the live in relationships are covered under the provision of Section 2(f) of the Domestic Violence Act. It is only those which qualify to be the relationship in the nature of marriage are governed by that provision.
In order to constitute such relationship, a legal marriage between the two must be possible.
The entire case can be accessed here.
Against whom can the Complaint be Filed under the Domestic Violence Act?
Case name: Sandhya Wankhede vs. Manoj Bhimrao Wankhede
This issue has often remained a controversial one as Section 2(q) of the Domestic Violence Act defines “respondent” as 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 a marriage may also file a complaint against a relative of the husband or the male partner.
In view of the definition of the term respondent covering adult male person, the judiciary has time and again been confronted with the argument that an aggrieved person can file complain under the Domestic Violence Act against an adult male person only and not against the female relatives of the husband i.e. mother-in-law, sister-in-law.
However, the Supreme Court in the aforementioned case put to rest the issue by holding that the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore, complaints are not just maintainable against the adult male person but also the female relative of such adult male.
Wife cannot implicate one and all in the Family
Case name: Ashish Dixit vs. State of UP & Anr.
In this case, the Supreme Court has held that a wife cannot implicate one and all in a Domestic violence case. In this case, the complainant apart from arraying the husband and in-laws in the complaint, had also included all and sundry as parties to the case, of which the complainant didn’t even know names.
Supreme Court on Duty of Courts while deciding Cases under Domestic Violence Act
Case name: Krishna Bhatacharjee v. Sarathi Choudhury and Another
The Apex Court while elucidating on the duty of courts while deciding complaints under the Domestic Violence Act stated that:
- It is the duty of the Court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct.
- The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The Court of Law is bound to uphold the truth which sparkles when justice is done.
- Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.
Husband’s Obligation to Maintain Wife under Domestic Violence Act
Case name: Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors.
It was held in this case, that when it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoption and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother-in-law can neither be subject matter of attachment nor during the life time of husband can his personal liability to maintain his wife be directed to be enforced against such property.
Maintenance of Mother under the Domestic Violence Act
Case name: Ganesh S/o. Rajendra Kapratwar, Abhijeet Vs. The State of Maharashtra
The Bombay High Court in an application preferred by the mother for maintenance and medical expenses under the and medical expenses under the Domestic Violence Act and the Hindu Adoptions and Maintenance Act, 1956 against her son and grandsons has held that:
“Grandsons would have been liable to pay maintenance to grandmother under Sections 22(1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not been alive and not capable of paying maintenance.”
Retrospective application of the Domestic Violence Act
Case name: V.D. Bhanot Vs. Savita Bhanot
In the case, the Apex Court upheld the Delhi High Court’s view that “even a wife who had shared a household before the Domestic Violence Act came into force would be entitled to the protection of the Domestic Violence Act”.
Right of Women to Reside in her Matrimonial Home
Case name: Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari
The Bombay High Court elaborated on the right of women to reside in her matrimonial home or shared household. The Court observed that the ‘Statement of Objects and Reasons’ of the Act makes it clear that, this Domestic Violence Act is enacted to secure the right of a woman to reside in her matrimonial home or shared household, irrespective of the question ‘whether she has any right, title or interest in the said household or not’.
It is also irrelevant whether the Respondent has a legal or equitable interest in the shared household. The moment it is proved that it was a shared household, as both of them had, in their matrimonial relationship, i.e. domestic relationship, resided together there and in this case, upto the disputes arose, it follows that the Petitioner-wife gets right to reside therein and, therefore, to get the order of interim injunction, restraining Respondent-husband from dispossessing her, or, in any other manner, disturbing her possession from the said flat.
Can order be passed directing respondent to remove himself from the Shared household?
Case name: Sabita Mark Burges vs Mark Lionel Burges
Yes, under Section 19(1) (b) of Domestic Violence Act order can be passed directing the Respondent to remove himself from the shared household. Thus, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household.
In this case, the Bombay High Court held that no matter that a man may alone own a particular house, he has no right to be violent against his wife or the woman he lives with and if the Court sees any violence he must be restrained from entering upon the residence essentially to secure the wife and children against further violence and similar disputes.
Object behind enactment of Section 19 of Domestic Violence Act – In Sabita Mark Burges case, the Bombay High Court very succinctly explained the object behind residence order as-
It is common observance that the applications for grant of injunction in respect of the residence and possession of the respondent is essentially seen by Courts upon the proprietary rights of the parties. Since in most cases wives do not own matrimonial homes, they are statutorily given rights therein which were not given to them by Courts under the principles of common law so that they have a right to peaceful enjoyment of their matrimonial home. Section 19 of Domestic Violence Act came to be enacted in the first place granting essentially the wives/women peace against domestic violence in their residence, their title notwithstanding. This statutory grant is upon the sublime principle of human rights prevailing over proprietory rights. It may bear repetition to state that both are equally entitled to the said flat unless one of them is violent.
Order directing husband to remove himself from shared household to be exercised sparingly
Case name: Manju Sharma vs. Ramesh Sharma
The District Court of Delhi while substantiating on Section 19(1)(b) of Domestic Violence Act opined that the law empowers the court to direct the removal of respondent from the shared household, however, such power is to be exercised sparingly and in exceptional circumstances.
In this aforementioned case, the wife was awarded interim protection and respondent was restrained from perpetrating any kind of domestic violence on the aggrieved person during the proceedings. However, the respondent breached the said order on two occasions. He continued perpetrating domestic violence on the aggrieved person despite the protection order granted in favour of the aggrieved person. Hence, considering the facts of the case, the Court passed directed the respondent husband to remove himself from the shared household under Section 19(1)(b) of Domestic Violence Act.
Whether women members of the Family can be removed from shared household u/Section 19(1)(b) of DV Act?
Case name: Meenavathi vs Senthamarai Selvi
No, the Proviso to Section 19 clearly states that no order under Section 19(1)(b) of Domestic Violence Act can be passed against any person who is a woman.
In this case it was held that in the guise of passing an order under Section 19(1)(b) of Domestic Violence Act, such women members of the family cannot be directed to be removed from the shared household.
A similar observation was made by the High Court of Madras in the case of Uma Narayanan vs Mrs. Priya Krishna Prasad, wherein the Court observed that under Section 19(1)(b) of Domestic Violence Act, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household. While enumerating the directions that could be passed under Section 19(1)(b) of Domestic Violence Act and with particular reference to the direction that could be issued under Section 19(1)(b) of Domestic Violence Act the said proviso has been incorporated just to protect the interest of a woman member of the family who is living in such a shared household. Such a provision in the proviso has been incorporated only for the aforesaid limited purpose. In a shared household which may belong to a joint family women members may also be living and in the guise of passing an order under Section 19(1) (b) of the Act, such women members of the family cannot be directed to be removed from the shared household but such a direction can be issued only against male members.
Provision of Alternate Accommodation u/ Section 19 of Domestic Violence Act
Case name: Ajay Kumar Jain v. Baljit Kaur Jain
Section 19(1)(f) of Domestic Violence Act states that the respondent can be directed to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household.
In the aforesaid case, the Court observed that a wife cannot have right to live in a particular property and the same cannot become a clog on the property denying the right of the husband to deal with the property when he is willing to provide an alternative matrimonial home to her. It was also held that she cannot insist on residing in the suit property alone when the husband had offered a suitable alternative arrangement for her.
Residence Order u/Domestic Violence Act- If Property is Sold, Daughter-in-law is Entitled to Alternate Residence and Compensation
Case name: Shachi Mahajan vs Santosh Mahajan
In this very recent case of 2019, the Daughter-in-law had secured protection order of residence under Section 19 of Protection of Women against Domestic Violence Act, 2005 of property in her Mother-in-law’s name (hereinafter referred to as the subject property). However, in a subsequent development, the subject property was sold by the Mother-in-law to a third party by a registered sale deed. In view of the same, the Mother-in-Law contended that as the subject property was sold, the daughter-in-law could not enforce her rights of residence in the shared household.
However, the High Court of Delhi directed the Mother-in-law to provide an alternate residence to the Daughter-in-law and also pay compensation.
The Court noted that action of the Mother-in-Law in selling the subject property, though not strictly illegal, had caused loss to the Daughter- in-Law. Accordingly, one would also have balance the corresponding rights of the parties. In this context, the Court made reference to Section 19(1)(f) of the Domestic Violence Act which stipulates that the Magistrate shall secure same level of alternative accommodation for the aggrieved person as enjoyed by her in the shared household or direct payment of rent for the same, if the circumstances so require.
Can Husband Initiate Proceedings against Wife u/Domestic Violence Act?
Case name: Mohd. Zakir v. Shabana & Ors.
In this very interesting case of 2018, High Court of Karnataka held that a petition under the Domestic Violence Act by the husband or an adult male can be entertained. To arrive at its decision, the High Court placed reliance on Supreme Court’s judgment in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora, wherein the Supreme Court while striking down a portion of Section 2(a) of the Act (defining “aggrieved person”) on the ground that it is violative of Article 14 of the Constitution of India and the phrase “adult male” as appearing in Section 2(q) of the Act stood deleted.
In view of the aforesaid ruling of Apex Court, the High Court opined that If the said sub-section is read after deleting the expression ‘adult male’, it would appear that any person, whether male or female, aggrieved and alleging violation of the provisions of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint could not have been trashed on the ground that the Act does not contemplate provision for men and it could only be in respect of women.
However, the aforesaid verdict of High Court passed by Justice Anand Byrareddy was later on withdrawn by him when an Advocate opposed the verdict alleging that the Supreme Court’s verdict in the Hirala Harsora case had been wrongly interpreted by the Judge.
Not Providing Maintenance is Continuing Offence-Wife not Debarred from Seeking Maintenance u/Domestic Violence Act even after 3 Years
Case name: Anthony Jose v. State of NCT f Delhi & ors.
In a recent case, the High Court of Delhi analyzed the issue of quashing of FIR/Complaint on the grounds of limitation in matrimonial offences. The Court was of the view that in such cases the victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. Thus, courts while considering the question of limitation for an offence under Section 498-A should be careful and take into consider the interests of justice.
The High Court reiterated Supreme Court’s view in Arun Vyas Vs. Anita Vyas, wherein it was held that the essence of the offence in Section 498-A is cruelty and is a continuing offence and on each occasion on which the respondent was subjected to cruelty a new starting point of limitation arises.
In view of the aforesaid observations, the Court in the instant case refused to quash the FIR on the grounds of limitation.
Quashing of complaint under Section 12 of Domestic Violence Act
Case name: Anthony Jose v. State of NCT of Delhi
In the case, application under Section 12 of the Domestic Violence Act primarily related to grant of maintenance to respondent and the minor child. In this context, the High Court opined that non- providing of maintenance is a continuous cause of action and even if for three years the respondent did not claim the maintenance for herself or for the child, the same would not debar her from seeking maintenance under Section 12 of the Domestic Violence Act and the complaint thereon cannot be dismissed being barred by limitation.
The entire case can be accessed here.
Residence Order u/Domestic Violence Act- Magistrate can Pass Order for Property Situated Outside State
Case name: Ajay Kaul & ors. v. State of J&K
The law involved in the case pertained to Section 27 of the Domestic Violence Act which deals with the Jurisdictional power of the Magistrate and opined that according to the statutory provision only such courts are competent to entertain a complaint where the aggrieved person/respondent permanently or temporarily resides or carries on business or is employed, or where cause of action arises.
While elucidating on the expression “temporarily resides” used in Section 27, the High Court remarked that it means more than a causal stay and implies some concrete intention to stay at a particular place. The temporary residence means where an aggrieved person is compelled to take shelter or to take job or do some business, in view of domestic violence within her matrimonial home. Temporary residence so includes a place where an aggrieved person was compelled to reside in view of commission of domestic violence.
Thus, the High Court in the case held that there is nothing which debars the magistrate to pass such order with regard to property situated outside State.
The entire case can be accessed here.