DOMESTIC VIOLENCE ACT, 2005 MAINS NOTES Page |1

DOMESTIC VIOLENCE ACT, 2005

Section 2 Definitions:-

(a) “Aggrieved person” means any woman who is, or has been in domestic
relationship with the respondent and who alleges to have been subjected to any
act of domestic violence by the respondent;

(e) "domestic incident report" means a report made in the prescribed form on
receipt of a complaint of domestic violence from an aggrieved person;

(f) “Domestic relationship” means a relationship between two persons who live
or have, at any point of time, lived together in a shared household, when they are
related by consanguinity, marriage, or through a relationship in the nature of
marriage, adoption or are family members living together as a joint family;

(q) “respondent” means 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 (i.e. it includes a female
relative also) of the husband or the male partner;

(r) "service provider" means an entity registered under Sub-section (1) of Section
10;

(s) "Shared household" means a household where the person aggrieved lives or
at any stage has lived in a domestic relationship either singly or along with the
respondent and includes such a household whether owned or tenanted either
jointly by the aggrieved person and the respondent, or owned or tenanted by
either of them in respect of which either the aggrieved person or the respondent
or both jointly or singly have any right, title, interest or equity and includes such a
household which may belong to the joint family of which the respondent is a
member, irrespective of whether the respondent or the aggrieved person has any
right, title or interest in the shared household;

Note:- Mother-in-law house is not a shared house hold as per Supreme Court
decision.

1) Explain domestic violence and domestic relationship?

A) Section 3 of Protection of Domestic Violence Act defines domestic violence. As

per this section any act, or commission or conduct of the respondent shall
constitute domestic violence if the following elements are present -

1. Any form of abuse causing harm or injury to the physical and / or mental
health of the aggrieved person or compromising her life and safety. (or)
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2. Any harassment for dowry or any other unlawful demands for any property.
(or)

3. Threat to cause injury or harm to the aggrieved person or to those related to

the aggrieved person by any conduct mentioned in clause (a) or clause (b). (or)

4. Otherwise injures or causes harm, whether physical or mental, to the aggrieved

person.

Explanation I:- For the purposes of this section,-

(i) "physical abuse" means any act or conduct which causes bodily pain, harm, or
danger to life, limb, or health or development of the aggrieved person and
includes assault, criminal intimidation and criminal force;

(ii) "sexual abuse" includes a conduct that abuses, humiliates, degrades or

otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes-

(a) insults, humiliation, name calling and insults or ridicule specially with
regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the
aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the

aggrieved person is entitled under any law or custom whether payable under an
order of a court or otherwise or which the aggrieved person requires out of
necessity.

(b) disposal of household effects, any alienation of assets whether movable or

immovable, valuables, shares, securities, bonds and the like or other property in
which the aggrieved person has an interest or is entitled.

(c) prohibition or restriction to continued access to resources or facilities which

the aggrieved person is entitled.

Explanation II:- For the purpose of determining whether any act, omission,
commission or conduct of the respondent constitutes "domestic violence" under
this section, the overall facts and circumstances of the case shall be taken into
consideration.

Section 2(f) defines “Domestic relationship” means a relationship between two

persons who live or have, at any point of time, lived together in a shared
household, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family members living
together as a joint family;
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PRACTICAL PROBLEMS

1. Whether wife can file a petition under the Protection of Women from
Domestic Violence Act, 2005 complaining of domestic violence occurred before
the commencement of the Act and when she was not residing with her husband
at the time of coming into force of the said Act. (8th November 2015, AP HC
paper)

A) Yes, wife can file a petition under the Protection of Women from Domestic
Violence Act, 2005 for complaining of domestic violence occurred prior to the
commencement of the Act even though she was not residing with her husband at
the time of when the Act is in force.

There is a famous case law with the above similar facts of the case i.e., In Savitha
Bhanot vs V.D. Bhanot I 2010 DMC530, Delhi High Court held that a petition
under the provisions of the Protection of Women from Domestic Violence Act,
2005 is maintainable even if the acts of domestic violence have been committed
prior to coming into force of the Act or despite her having in the past lived
together with the respondent a shared household woman is no more living with
him, at the time of coming into force of the Act.

It further stated that, It is be open for the Magistrate to pass appropriate

order under the provisions of Sections 12, 18, 19, 20, 21, 22 or 23 of the Act on a
petition filed by such a woman.

b) is deprivation of financial resources a ground for filing a petition under the

Protection of Women from Domestic Violence Act, 2005? (8th November 2015,
AP HC paper)

A) Yes, deprivation of financial resources is a ground for filing a petition under the
DVC, Act 2005.

Section 3 of Domestic Violence Act, 2005 defines domestic violence. If you

go through Section 3 Explanation (iv)(a) it clearly defines what is a economical
abuse. Under economical abuse it was clearly mentioned that deprivation of all or
any economic or financial resources to which aggrieved person is entitled then
such deprivation is called economic abuse, which shall be treated as domestic
violence.

Therefore, from the above section it is clear that deprivation of financial

resources is ground for filing a petition under the Domestic Violence Act, 2005.

Section 5 Duties of police officers, service providers and magistrate:-

A police officer or service provider or magistrate who has received the

complaint of domestic violence or who is present at the place of an incident or
where the incident of domestic violence is reported to him, then he shall inform
the aggrieved person-
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(a) of her right to make an application for obtaining a relief by way of a protection
order, an order for monetary relief, a custody order, a residence order, a
compensation order or more than one such order under this Act;

(b) of the availability of services of service providers;

(c) of the availability of services of the Protection Officers;

(d) of her right to free legal services under the Legal Services Authorities Act,
1987 (39 of 1987);

(e) of her right to file a complaint under Section 498A of the Indian Penal Code
(45 of 1860), wherever relevant:

Provided that nothing in this Act shall be construed in any manner as to

relieve a police officer from his duty to proceed in accordance with law upon
receipt of information as to the commission of a cognizable offence.

Section 9 Duties and Functions of Protection Officers:-

The following are the duties of the Protection Officer -

1. To assist the Magistrate in the discharge of his functions under this Act

2. To make a domestic incident report to the Magistrate, upon receipt of a

complaint of domestic violence and
forward copies thereof to the police officer in charge of the police station
within the local limits of whose jurisdiction domestic violence is alleged to have
been committed and to the service providers in that area;

3. To make an application to the Magistrate, for issuance of a protection order,

where the aggrieved person so desires.

4. To provide a legal aid to the aggrieved person and make available free of cost
the prescribed form in which a complaint is to be made;

5.To maintain a list of all service providers.

6. To get the aggrieved person medically examined, if she has sustained bodily
injuries and forward a copy of the medical report to the police station and the
Magistrate having jurisdiction in the area where the domestic violence is alleged
to have been taken place;

7. To ensure that the order for monetary relief under section 20 is complied with
and executed, in accordance with the procedure prescribed under the Code of
Criminal Procedure, 1973.

8. To perform such other duties as may be prescribed.

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9. The Protection Officer shall be under the control and supervision of the
Magistrate, and shall perform the duties imposed on him by the Magistrate and
the Government by, or under, this Act.

Section 10 Service Providers:-

1. Any voluntary association registered under the Societies Registration Act, 1860
or a company registered under the Companies Act, 1956 or any other law for the
time being in force with the objective of protecting the rights and interests of
women by any lawful means including providing of legal aid, medical, financial or
other assistance shall be eligible to register itself with the State Government as a
service provider for the purposes of this Act.

(2) A service provider registered under sub-section (1) shall have the power to -

(a) record the domestic incident report if the aggrieved person so desires and
forward a copy thereof to the Magistrate and the Protection Officer having
jurisdiction in that area.

(b) get the aggrieved person medically examined and forward a copy of the
medical report to the Protection Officer and the police station within the local
limits of which the domestic violence took place;

(c) ensure that the aggrieved person is provided shelter in a shelter home, if she
so requires and forward a report of the lodging of the aggrieved person in the
shelter home to the police station within the local limits of which the domestic
violence took place.

(3) No Suit, Prosecution or Other legal proceeding shall lie on the service provider
or any member of the service provider for anything done or intended to be done
in good faith under this Act.

Section 12 Application to Magistrate:-

1. An aggrieved person or a Protection Officer or any other person on behalf of

the aggrieved person may present an application to the Magistrate seeking
one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate
shall take into consideration any domestic incident report received by him from
the Protection Officer or the service provider.

2. The relief sought under Sub-section (1) includes order for payment of
compensation or damages without prejudice to the rights sustained in the act of
domestic violence committed by the respondent.

3. The amount paid or payable to the aggrieved person by an order made by the
magistrate under this Act shall be set off against the amount of decree of
compensation or damages passed by any court in favour of the aggrieved person.
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4. Such decree shall be executable for the balance amount, if left any after such
set off.

5. As per Sub-section (3) every application under Sub-section (1) shall be in such
format and contain such particulars as may be prescribed or as nearly as possible
to the format laid down by the central government by rules.

6. The magistrate shall fix the first date of hearing, which shall ordinarily be
within 3 days from the date of receipt of the application by the court.

7. The Magistrate shall endeavour to dispose of every application within a period

of sixty days from the date of its first hearing.

Section 17 Right to reside in a shared household:-

1. As per this section every woman in a domestic relationship shall have the right
to reside in the shared house hold, whether or not she has any right, title or
beneficial interest in the same.

2. The aggrieved person shall not be evicted or excluded from the share house
hold or any part of it by the respondent except in accordance with the procedure
established by law.

Briefly explain various orders that can be passed by magistrate under D.V.C Act?
Whether such orders can be modified.

Section 18 Protection Orders:-

1. As per this section Magistrate after hearing to the aggrieved person and the
respondent if he is satisfied that domestic violence has taken place or is likely to
take place, then he may pass a protection order in favour of the aggrieved person.

2. Such protection order shall prohibit the respondent from -

a) Committing any act of domestic violence.
b) Aiding or abetting in the commission of acts of domestic violence.
c) Entering the place of employment of the aggrieved person or any other
place frequented by the person aggrieved if he is a child;
d) Attempting to communicate in any form with the aggrieved person,
including personal, oral or written or electronic or telephone contact.
e) Alienating assets, operating bank lockers or bank accounts used / held /
enjoyed by both parties, either jointly or singly including her stridhan; (except
with the leave of the court)
f) Causing violence to dependants, other relatives & persons who give the
aggrieved person assistance from domestic violence.
g) Committing any other act as specified in the protection order.

Section 19 Residence Orders:-

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While disposing of an application passed under Sub-section (1) of Section

12, the Magistrate may, on being satisfied that domestic violence has taken place
he may pass a residence order -

a. Restraining the respondent from dispossessing or disturbing the possession of

the aggrieved person from the shared household in which the aggrieved person
resides;

b. Direct the Respondent to remove himself from the shared households; (This
order cannot be passed against a woman)

c. Restraining the respondent or his relatives from entering any portion of shared
household.

d. Restraining the respondent from alienating or disposing off or encumbering the

shared household. except with the leave of the court.

e. Restraining the respondent from renouncing his rights in the shared household.

f. Directing the respondent to secure an alternate accommodation for the

aggrieved person as enjoyed by her in the shared house hold or to pay rent for
the same if the circumstances so require.

2. The Magistrate may impose any additional conditions or pass any other
direction which he may deem reasonably necessary to protect the aggrieved or
any child of such aggrieved person.

3. The magistrate may demand from the respondent to execute a bond with or
without sureties, for preventing the commission of domestic violence.

4. While passing an order under Sub-section (1), sub-section (2) or Sub-section

(3), the court may also pass an order directing the officer in charge of the nearest
police station to give protection to the aggrieved person or to assist her or the
person making an application on her behalf in the implementation of the order.

5. The magistrate may direct the respondent to return to the possession of the
aggrieved person her stridhan or any other property or valuable security to which
she is entitled to.

6. An order under Sub-section (3) shall be deemed to be an order under Chapter

VIII of the Code of Criminal Procedure, 1973 and shall be dealt with accordingly.

Note: Under this law now a mother can ask for an order against her son who is
trying to/has dispossessed her, sister against brother who is being denied access
to ancestral home which is her shared household; wife against husband for
restraining him from dispossessing her, etc.

Section 20 Monetary Reliefs:-

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While disposing of an application under Sub-section (1) of Section 12, the

Magistrate may direct the respondent to pay monetary relief to meet the
expenses incurred and losses suffered by the aggrieved person as a result of the
domestic violence and such relief may include but not limited to -

a. the loss of earnings.

b. The medical expenses.

c. The loss caused due to the destruction, damage or removal of any property
from the control of the aggrieved person; and

d. The maintenance for the aggrieved person as well as her children, if any,
including an order or in addition to an order of maintenance under Section 125 of
Cr.P.C. or any other law for time being in force.

2. The monetary relief granted under this section shall be adequate fair and
reasonable.

3. The Magistrate shall have the power to order an appropriate lump sum
payment or monthly payments of maintenance, as the nature and circumstances
of the case may require.

4. The respondent shall pay the monetary relief granted to the aggrieved person
within the period specified in the order.

5. If the respondent fails to pay the monetary relief within specified time then the
Magistrate may direct the employer or a debtor of the respondent, to directly
pay to the aggrieved person or deposit with the court a portion of the wages or
salaries or debt due to or accrued to the credit of the respondent, which will be
adjusted towards the monetary relief payable by the respondent.

Section 21 Custody Orders:-

1. As per this Section the Magistrate has the power to grant temporary custody
of any child or children to the aggrieved person or the person making application
on her behalf at any stage of hearing the application for protection order or for
any other relief under this Act.

2. The Magistrate while granting the temporary custody to the aggrieved person
he may specify, if necessary to the aggrieved person about the arrangements for
visit of such child or children by the respondent.

3. However if the Magistrate is of the opinion that any visit of the respondent may
be harmful to the interests of the child or children then the Magistrate shall
refuse to allow such visit.

Section 22 Compensation Orders:-

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In addition to other reliefs granted under this Act, the magistrate may on
an application being made by the aggrieved person, pass an order directing the
respondent to pay compensation and damages for the injuries, including mental
torture and emotional distress, caused by the acts of domestic violence
committed by that respondent.

Section 23 Power to grant interim and ex parte Orders:-

1. Under this section Magistrate has the power to pass such interim order as he
deems just and proper.

2. If the magistrate is satisfied that an application prima facie includes that the
respondent is committing, or has committed an act of domestic violence or he
has a reason to believe that the respondent may commit an act of domestic
violence, he may grant ex parte order on the basis of the affidavit in such form,
as may be prescribed, of the aggrieved person under Section 18, Section 19,
Section 20, Section 21 or, as the case may be, section 22 against the respondent.

Section 25 Duration and alteration of orders:-

1. A Protection Order made under Section 18 shall be in force till the aggrieved
person applies for discharge.

2. However if there is any change in the circumstances of the case, the magistrate
may on application made by the aggrieved person or the respondent pass an
order altering, modifying or revoking any order made under this Act and he may
record the reasons in writing for passing such order, as he may deem appropriate.

Section 28 Procedure:-
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18,
19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying down its own
procedure for disposal of an application under section 12 or under sub-section
(2) of section 23.

Section 29 Appeal:-
An appeal shall lie from the order made by the magistrate to the court of
sessions within 30 days from the date on which order is served on the aggrieved
person or the respondent, as the case may be, whichever is later.

Section 31 Penalty for breach of protection order by respondent:-

1. A breach or protection order, or of an interim protection order by the
respondent is a punishable offence under this Act and he shall be punishable with
imprisonment of either description for a term which may extend to one year or
with fine which may extend to twenty thousand rupees or with both.
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2. The offence under Sub-section (1) of section 31 shall be tried by the magistrate
who had passed the order.

3. Charges under Section 498A IPC or any other provision of that code can also be
framed by the Magistrate in addition to the charges under Sub-section (1) of
section 31 of this Act.

4.The trial for the offence under Section 31 to be summary in nature.

Section 33 Penalty for not discharging duty by Protection Officer:-

As per this section if any protection officer fails or refuses to discharge his
duties as directed by the magistrate in the protection order without any sufficient
cause he shall be punished with imprisonment for term which may extend to one
year, or with fine which may extend to twenty thousand rupees, or with both.

Section 36 Act not in derogation of any other law:-

As per this section the provisions of this Act shall be in addition to, and not
in derogation (i.e., decline or depreciation etc..,) of the provisions of any other
law, for the time being in force.

Can rented accommodation be included under a ‘shared household’?

Yes, rented accommodations come under the ambit(i.e., scope) of ‘shared
household’.
A ‘shared household’ includes property that is;
- Owned or tenanted-
- Where either party has any right, interest, title, or equity in the property
- A household which may belong to the ‘joint family’

What is a DIR and how is it different from a FIR?

DIR is a ‘Domestic Incidence Report’. It is made under the PWDVA in the

simple format given under FORM I of the Act. She may file it herself or take the
assistance of Protection Officers, Service Providers or Police Officers. DIR is civil in
nature, whereas a FIR is made under criminal laws.