By Bhawna Gandhi
In the last three parts (Read Part I here, Part II here and Part III here) of our Domestic Violence Laws Simplified Series, the author explained the functioning of domestic violence laws in India and discussed the various types of reliefs that the victim (woman) is entitled to under the law. In this last and final part, the author shall discuss the provisions of jurisdiction and maintenance under Protection of Women from Domestic Violence Act ( PWDVA).
Jurisdiction under the PWDVA
PWDVA guarantees larger rights in favour of the victims of domestic violence by giving the option to approach either the family court or the Magistrate by the virtue of Section 27 of PWDVA. For seeking relief(s) under PWDVA, the victim of domestic violence may file petition in the court of Judicial Magistrate of the first class or the Metropolitan Magistrate, within the local limits of any of the following:
1. Place where the alleged act of domestic violence occurred;
2. Place where the respondent resides or works;
3. Place where the victim resides permanently or works;
4. Place where the victim is sheltered or temporarily staying;
The Supreme Court has made it amply clear that a petition under the PWDVA can be filed in a Court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. In cases where after the alleged acts of violence, the victim moves to her parent’s home, she can file the petition in the nearest magisterial court. Furthermore, reliefs under PWDVA can also be sought in any on-going legal proceedings before a civil court, family court or a criminal court between the same parties.
Maintenance under PWDVA
Maintenance laws have been enacted as a measure of social justice to provide financial assistance to dependent wives, parents and children to prevent them from falling into destitution and vagrancy. The maintenance provisions in favor of the wife are created under various statutes such as Cr.P.C, PWDVA and personal laws. However, it is important to note that each statute has been enacted with a specific purpose and proceedings under these statutes are independent of each other.
Under Section 20 of the PWDVA, the Magistrate may direct the respondent to pay monetary relief and maintenance to the aggrieved woman and her children. This relief is granted to meet the expenses incurred and losses suffered by the aggrieved woman which may include loss of earnings, medical expenses, expenses for destruction, damage or removal of any property.
It shall be reasonable and consistent with the standard of living of the aggrieved woman. If the circumstances of the case so require, the Magistrate is also empowered to pass interim maintenance order under Section 23 of PWDVA. The object of this provision is to provide required financial support to victims of domestic violence to maintain herself and her children during the pendency of the proceeding.
Who can be ordered to pay maintenance under PWDVA?
A woman who has been subjected to domestic violence while living in the shared household with the respondent can claim maintenance under Section 20 of PWDVA. The scope of maintenance under this provision is wide enough to cover any woman who is in a domestic relationship with the respondent and living in the same shared household. This is not just limited to wives, but may include mother, mother-in-laws, daughters, sisters and live-in-partners.
Similarly, the respondent can be any adult male member of the shared household (Part I) who is in a domestic relationship with the aggrieved woman, according to the facts and circumstances of the case. In Ajay Kumar v. Lata (2019) the Supreme Court has held that domestic relationships, under the law, could amount to any form of relationship where the two persons, at any point in time, have resided in a shared house and ordered the brother-in-law to pay maintenance to the widow victim under PWDVA.
How to file an application for maintenance under PWDVA?
To seek maintenance under PWDVA, the aggrieved woman has to file an application under Section 12 of PWDVA supported by an affidavit of disclosure of assets and liabilities before the Magistrate. The affidavit must be filed by both parties to maintenance proceedings, including in proceedings currently pending before a family, district or magistrate’s court. The template of the affidavit can be found here.
If the circumstances of the case so require, the Magistrate may also pass an interim maintenance order under Section 23 of PWDVA. Interim maintenance is awarded while the regular maintenance proceedings are pending, in order to provide financial assistance to the aggrieved woman to cover her basic expenses and litigation costs.
To seek interim maintenance, the aggrieved woman may make an application under Section 12 of PWDVA to seek relief under Section 20 read with Section 23, supported by the affidavit of disclosure, before the Magistrate. It is advisable that the aggrieved woman additionally submits an affidavit stating that the monetary reliefs are urgently required.
As per Supreme Court’s ruling in Rajneesh v. Neha (2020) the respondent shall be given 4 weeks to submit the reply, along with the affidavit of disclosure. In case the respondent fails to submit his reply or affidavit or seeks more than two adjournments to file his pleadings, the Magistrate may proceed to decide the application for maintenance on the basis of the pleadings and affidavit filed by the aggrieved woman.
To subserve the purpose of awarding interim maintenance, the Magistrate shall pass the order within four to six months of the affidavits of disclosure being filed before the court.
From which date Maintenance is awarded?
Section12 of the PWDVA does not expressly provide for the date from which the maintenance is to be awarded. However, as per the Supreme Court’s decision in Rajneesh the maintenance shall be awarded from the date of filing the application in the court.
Is Maintenance under PWDVA different from 125 CrPC?
PWDVA and CrPC are both secular in nature and available to women, irrespective of their religion, if the conditions mentioned under each statute are fulfilled. There is no bar in seeking maintenance under different laws, as each law is enacted with a specific purpose, however, the aggrieved woman must disclose the amount of maintenance passed in previous proceedings before the Magistrate in any subsequent proceedings.
Section 20(1)(d) of PWDVA provides that maintenance granted under PWDVA is in addition to an order of maintenance awarded under Section 125 of the Cr.P.C., or any other law.
The Supreme Court of India in Juveria case (2014) has categorically held that the relief under Section 20 of PWDVA is different from maintenance under CrPC, which can be in addition to an order of maintenance under Section 125 Cr.P.C. or any other law. While Section 125 Cr.P.C. talks only of maintenance, the Section 20 of PWDVA stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of aggrieved person.
The Supreme Court in Rajneesh v. Neha (2020) while balancing the rights of both the parties has held that where successive maintenance applications are made by a party under different laws, the maintenance awarded in the previous proceedings shall be adjusted or set off while determining whether any further amount is to be awarded in the subsequent proceedings.
For instance, if in the first case, the maintenance awarded is Rs. 10,000/- and in another case under PWDVA, the Magistrate orders for Rs. 15,0000 maintenance, the amount of Rs. 10,000/- passed in the previous proceeding shall be adjusted or set-off against the subsequent proceeding, depending upon the facts and circumstances of the case.
Execution of Maintenance Order under PWDVA
The purpose and object of the providing maintenance under PWDVA is to provide immediate relief to the victim. If the respondent fails to comply with the order of maintenance, the aggrieved woman shall lodge the complaint in the court which issued the order.
Some High courts have held that non-payment of maintenance allowance to the wife when she is legally entitled constitutes economic abuse under section 3 of PWDVA and is a form of domestic violence.
As per the guidelines laid down by the Apex Court in Rajneesh the maintenance order passed under PWDVA can be enforced in the same manner as laid down under Section 125(3) of the Cr. P.C. which provides that if the respondent fails without sufficient cause to comply with the order, the Magistrate is empowered to issue a warrant against the defaulter and is further empowered to sentence such person, for the whole, or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding.
The Magistrate is also empowered under Section 20(6) of the PWDVA to direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
Note: The information contained in this article is for awareness building and should not be taken as a legal advice.
(Bhawna is an Advocate and Researcher with Delhi State Legal Services Authority. She tweets at @BhawnaGandhi)
Part I – Understanding the Domestic Violence Laws in India
Part II – Understanding Domestic Violence: Discussing the protection and remedial measures for domestic violence cases
Part III – Understanding Domestic Violence: Aggrieved woman’s right to residence
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