In part I, we traced the origins of law governing domestic violence and its application by court in ensuring dignity and safety of women. In this part we shall discuss in brief, the protection and remedies available to the aggrieved woman.
Aggrieved woman, as explained in part I, can file a complaint on domestic violence with the police, a protection officer, a service provider, or directly with the Magistrate to seek relief from the court. After receiving the complaint of the aggrieved woman, a Domestic Incident Report (DIR) is made which sets the PWDVA in motion.
What is Domestic Incident Report (DIR)?
Domestic incident report (DIR) is a report that is made on receiving a complaint of domestic violence from the aggrieved woman. This report can be made at the instance of the protection officer or a service provider. DIR contains details of each incident of domestic violence with date, time and place of violence and person who caused domestic violence.
The idea underlying this format is that all allegations of domestic violence must be specific, so that the Magistrate before passing appropriate orders under the Act is apprised of the prima-facie factual matrix of the case.
DIR, in simple words, is an official record of the complaint of domestic violence which sets PWDVA in motion.
In addition to filing a case for domestic violence, the aggrieved woman can also file a criminal case against the abuser if the violence is severe to bring the case under Section 498A of the Indian Penal Code 1860. For initiating criminal action, filing of FIR with the nearest police station is mandatory.
The aggrieved woman can choose to file DIR (with the protection officer) and FIR (with the police station) both if the circumstances of the case require so. The reliefs claimed under PWDVA are in addition to and along with any other relief claimed in any criminal or civil proceeding.
Where can a woman file a complaint?
The aggrieved woman may apply before the police station and police is under an obligation to inform the aggrieved woman about legal remedies available to her. Police shall also guide her to the protection officer, service provider, shelter home, and medical facility. FIR (First Information Report) under Section 498A of the Indian Penal Code (IPC) may also be filed with the Police wherever it deems necessary.
2) Service Provider
The Aggrieved woman may approach any Service Provider i.e. any registered voluntary association working on issues of women rights and empowerment such as NGOs or support groups. Such organization shall prepare the Domestic Incident Report (DIR) and forward it to the protection officer of that district for further action.
3) Protection Officer
Protection officers are appointed in each district by the State Government and act as a link between the victim and Magistrate. The aggrieved woman may apply to the protection officer and he/she shall assist her in filing DIR and moving application for seeking reliefs under section 12 of PWDVA before the Magistrate.
The protection officer shall further arrange a shelter home for the victim, if required, and inform about free legal aid services available for her.
Protection officers are qualified social workers appointed in accordance with the rules framed under the PWDVA and their offices are in court premises (In Delhi, protection officers and public prosecutors share the same office), or, police stations (In Haryana, protection Officers have their offices in special women & children cells), or, at any other strategic location of the district. The state-wise list of Protection Officers can be accessed here.
The aggrieved person may directly file an application before the Magistrate of the nearest Mahila Court. Mahila courts are specialized courts which endeavour to provide justice to women in cases of domestic violence, dowry, molestation, maintenance, etc. Each district court complex has a Mahila Court which is presided over by an experienced woman Judicial Officer. Upon receipt of the application, the Magistrate shall issue directions to file the Domestic Incident Report (DIR)and pass appropriate orders thereafter.
5) Person-in-charge of Medical Facilities
If the aggrieved woman has approached a clinic or hospital whether private or public to seek medical help without filing DIR, the person-in-charge of the clinic or hospital is under an obligation to file a DIR and forward it to the protection officer.
The above list of authorities is not exhaustive; the aggrieved woman may also approach the nearest State Women Commission, State Human Rights Commission or District Legal Services Authority. These authorities are legally obliged to help her in filing the Domestic Incident Report through proper channels and assist in seeking other reliefs through protection officers.
What happens once a DIR is filed?
The Act requires that once a DIR is recorded, the protection officer must forward copies of the DIR to the Magistrate and the local police station. After DIR is filed, the aggrieved woman may, directly, or through the protection officer, file an application under section 12 of the PWDVA for seeking appropriate reliefs in the nature of Residence Order, Protection Order, Custody Order etc. It is mandatory for the Magistrate to resolve the complaint within 60 days of the first hearing.
What are reliefs available under the Act?
PWDVA envisages various types of reliefs for the immediate protection of victims of domestic violence. To seek relief, the aggrieved woman may in the prescribed form file an application under section 12 of PWDVA supported by affidavit before the Magistrate.
(PWDVA provides for different types of orders, in the form of reliefs, which are available to the aggrieved woman. Pic: Maitri India)
High Courts have differed in their opinion on whether filing of DIR is mandatory before moving an application under section 12 of PWDVA. While liberally interpreting the provisions of PWDVA; Delhi High Court, Jammu & Kashmir High Court and Punjab & Haryana High Court have held that filing of DIR is not mandatory before making an application under section 12 of PWDVA.
The Magistrate concerned upon considering the application supported by applicant’s affidavit, on being satisfied, can pass orders (also ex-parte orders, if the circumstances so require) under the relevant sections of the Act.
On the other hand, Madras High Court has held that filing of DIR is sine qua non for seeking relief under the Act. Hence, it is advisable to file DIR before making any application under section 12 of PWDVA.
The following reliefs can be claimed by the aggrieved woman:
Protection Order – Under section 18 of PWDVA, if the Magistrate is prima-facie satisfied that domestic violence has taken place or is likely to take place, he may pass protection orders prohibiting the abuser from committing any act of domestic violence and/or aiding or abetting all acts of domestic violence.
This protection is available within and outside the shared household; the place of employment of the woman, children’s school etc. and the abuser may be stopped from communicating with the woman, taking away her assets, and/or intimidating her family members. Such an order is passed after giving reasonable opportunity of being heard to both the parties.
The Magistrate may also pass any interim or ex-parte order that he deems necessary to thwart immediate threats to the life or limb of the woman. Non-compliance to any such order passed by the Court is a cognizable and non-bailable offence.
Residence Order – Under section 19 of PWDVA, Magistrate, on an application filed by the victim, may pass Residence Order in order to prohibit the abuser from removing the victim from the shared household. Shared household is a household where the victim lives or has lived in the past, in a domestic relationship with the abuser.
The purpose of passing such an order is to protect the rights of the victim and ensure that she is not forced into homelessness or vagrancy while the proceedings are pending. This is a double edged sword as depending upon the factual matrix of each case; directions may be passed to remove the abuser or any of his relatives from entering the shared household in which the victim resides, or order the abuser to provide an alternate accommodation for the victim to avoid future incidents of domestic violence.
In Manmohan Attavar v. Neelam Manmohan Attavar (2017), Hon’ble Apex Court explained the objective of passing residence order and said, “a reading of the provisions shows that it creates an entitlement in favor of the woman of the right of residence under the “shared household” irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.”
In another landmark case, earlier this year Supreme Court in, Satish Chander Ahuja v. Sneha Ahuja (2021) ruled that a wife is also entitled to claim right to residence in a shared household belonging to the relatives of the husband. Hence, Residence Order under section 19 can be passed in the respect of the property which belongs to the in-laws, if the woman and her husband resided there with some permanency after marriage.
Monetary relief and maintenance orders – The victim can seek monetary relief under section 20, upon filing an application for covering expenses incurred as a result of the domestic violence, for example- loss of earnings, medical expenses, maintenance for the woman and her children.
The courts have time and again clarified that interim maintenance under PWDVA and section 125 in CrPC (Code of Criminal Procedure), which deals with order of maintenance for women and children, are two separate remedies and one doesn’t preclude another. However, the court must take into consideration the maintenance already awarded and grant further maintenance accordingly. In Ajay Kumar v. Lata alias Shruti (2019), it was held that even the brother-in-law of the victim can be ordered to pay maintenance to his brother’s widow under PWDVA.
Compensation Order – In addition to monetary relief, a victim may also seek a Compensation Order under Section 22, by way of an application, in order to recover the compensation and damages for the physical injuries, mental torture and emotional distress caused to her due to the domestic violence. This is in addition to monetary relief, which only covers actual expenses related to the violence.
Custody Order – The victim can seek temporary custody of her children under Section 21 by making an application before the Magistrate to ensure that the abuser does not take her children from her. As the facts of the case permit, visitation rights may be granted to the abuser if not prejudicial to the interests of children.
It is pertinent to mention that the above mentioned reliefs can be sought under proceedings under PWDVA or/and also in any on-going legal proceedings before a civil court, family court or a criminal court between the same parties.
Note: The information contained in this article is for awareness building and should not be taken as a legal advice.
(The Writer is an Advocate and Researcher with Delhi State Legal Services Authority. She tweets at @BhawnaGandhi_)
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