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Posted 11-Dec-17 22:17 PM

#DomesticViolence #DV #DIVORCE #WOMEN #RIGHTS #Domestic

I am in an abusive marriage from past 22 months. I am pregnant now and my mother in law and my husband on my mother in law instigation has physically harassed and tortured me. This is ongoing from the very begining but I took all this to save the marriage but now they beat me in pregnancy. To save myself, I called police emergency and then got rescued. I gave a written letter to police about leaving from there to a relative place in the same city. I was staying with my husband in and after this I came back to my parents place which is a different state to get proper medical attention and care. I would like to know if I can file DV case and file divorce from my parents place or not. What are the timelines to do the same. It would also be helpful if someone can help me regarding Childs rights in this scenario as I do not want any compormise as it wouldn't be safe.

 

JURISDICTION TO FILE DV CASE

 

Temporary residence of aggrieved person is sufficient to invoke jurisdiction under Protection of Women from Domestic Violence Act, 2005

 

 

Orissa High Court: While dealing with the question relating to jurisdiction under Section 27 of the Protection of Women from Domestic Violence Act, 2005, the Bench  comprising of S.K. Sahoo, J., held that even if an aggrieved person is residing at a place for a temporary period of time,  she has the right to file an application and seek relief under Section 12 of the said Act, before the competent court within the local limits  of whose jurisdiction such place situates.

The widowed mother, respondent herein, was compelled to leave the house in the twilight of her life by her son and daughter-in-law, the petitioners herein. After being subjected to physical and mental cruelty, the mother was constrained to take shelter in the house of her elder daughter at Phulbani. She filed an application under Section 12 of the 2005 Act in the Court of S.D.J.M., Phulbani against the petitioners seeking reliefs under the Act. The present application sought transfer of the case to Berhampur on the ground that the Court at Phulbani had no jurisdiction to entertain the same.

The Court held that in view of Section 27, if the ‘aggrieved person’ either permanently or temporarily resides at a place, the Court of Judicial Magistrate of the First Class within the local limits of whose jurisdiction such place situates is competent to entertain an application under Section 12  and to grant protection order and other orders under the Act or try the offences under the Act. Dismissing the application,  the Court observed that ‘residence’ as defined under Section 27  includes both temporary and permanent residence of the aggrieved person. The Court further stated the meaning of the word ‘temporary’ as lasting, existing, serving for a time only which is not permanent. Thus a temporary residence is a temporary dwelling place where the aggrieved person resides, irrespective of residing there permanently or for considerable length, but for the time being. The Court stated that temporary residence does not include a place where the aggrieved person may stay or reside for the purpose of filing a case against another or a place where the aggrieved person has gone on a casual visit, a lodge or hostel or a guest house or an inn where she stays for a short period rather a place where the aggrieved person was force to reside for the time being in view of the commission of domestic violence. [Rabindra Nath Sahu  v.  Susila Sahu, 2016 SCC OnLine Ori 592, decided on September 14, 2016]

 

Domestic Violence: The term "domestic violence" includes elaborately all forms of actual abuse or threat of abuse of physical, sexual, verbal, emotional and economic nature that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person. The definition is wide enough to cover child sexual abuse, harassment caused to a woman or her relatives by unlawful dowry demands, and marital rape.

 

The kinds of abuse covered under the Act are:

  1. Physical Abuse-
    1. an act or conduct causing bodily pain, harm, or danger to life, limb, or health;
    2. an act that impairs the health or development of the aggrieved person;
    3. an act that amounts to assault, criminal intimidation and criminal force.
  2. Sexual Abuse-
    1. any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman. 
  3. Verbal and Emotional Abuse-
    1. any insult, ridicule, humiliation, name-calling;
    2. insults or ridicule for not having a child or a male child;
    3. repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
  4. Economic Abuse-
    1. depriving the aggrieved person of economic or financial resources to which she is entitled under any law or custom or which she acquires out of necessity such as household necessities, stridhan, her jointly or separately owned property, maintenance, and rental payments;
    2. disposing of household assets or alienation of movable or immovable assets;
    3. restricting continued access to resources or facilities in which she has an interest or entitlement by virtue of the domestic relationship including access to the shared household.
  5. Domestic Relationship: A domestic relationship as under the Act includes live-in relationships and other relationships arising out of membership in a family.
  6. Beneficiaries under the Act:
    1. Women: The Act covers women who have been living with the Respondent in a shared household and are related to him by blood, marriage, or adoption and includes women living as sexual partners in a relationship that is in the nature of marriage. Women in fraudulent or bigamous marriages or in marriages deemed invalid in law are also protected.
    2. Children: The Act also covers children who are below the age of 18 years and includes adopted, step or foster children who are the subjects of physical, mental, or economical torture. Any person can file a complaint on behalf of a child.
    3. Respondent: The Act defines the Respondent as any adult male person who is or has been in a domestic relationship with the aggrieved person and includes relatives of the husband or male partner.

Shared Household: A shared household is a household where the aggrieved person lives or has lived in a domestic relationship either singly or along with the Respondent. Such a household should be owned or tenanted, either jointly by both of them or by either of them, where either of them or both of them jointly or singly have any right, title, interest or equity in it. It also includes a household that may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or person aggrieved has any right, title or interest in the shared household.

 

RIGHTS GRANTED TO WOMEN

 

Right to reside in a shared household:
The Act secures a woman's right to reside in the matrimonial or shared household even if she has no title or rights in the household. A part of the house can be allotted to her for her personal use. A court can pass a residence order to secure her right of residence in the household.

 

The Supreme Court has ruled in a recent judgment that a wife's claim for alternative accommodation lie only against her husband and not against her in-laws and that her right to 'shared household' would not extend to the self-acquired property of her in-laws.

 

Right to obtain assistance and protection:
A woman who is victimized by acts of domestic violence will have the right to obtain the services and assistance of Police Officers, Protection Officers, Service Providers, Shelter Homes and medical establishments as well as the right to simultaneously file her own complaint under Section 498 A of the Indian Penal Code for matrimonial cruelty.

 

Right to issuance of Orders:
She can get the following orders issued in her favour through the courts once the offence of domestic violence is prima facie established:

  1. Protection Orders: The court can pass a protection order to prevent the accused from aiding or committing an act of domestic violence, entering the workplace, school or other places frequented by the aggrieved person, establishing any kind of communication with her, alienating any assets used by both parties, causing violence to her relatives or doing any other act specified in the Protection order.
  2. Residence Orders: This order ensures that the aggrieved person is not dispossessed, her possessions not disturbed, the shared household is not alienated or disposed off, she is provided an alternative accommodation by the Respondent if she so requires, the Respondent is removed from the shared household and he and his relatives are barred from entering the area allotted to her. However, an order to remove oneself from the shared household cannot be passed against any woman.
  3. Monetary Relief: The Respondent can be made accountable for all expenses incurred and losses suffered by the aggrieved person and her child due to the infliction of domestic violence. Such relief may include loss of earnings, medical expenses, loss or damage to property, and payments towards maintenance of the aggrieved person and her children.
  4. Custody Orders: This order grants temporary custody of any child or children to the aggrieved person or any person making an application on her behalf. It may make arrangements for visit of such child or children by the Respondent or may disallow such visit if it is harmful to the interests of the child or children.
  5. Compensation Orders: The Respondent may be directed to pay compensation and damages for injuries caused to the aggrieved person as a result of the acts of domestic violence by the Respondent. Such injuries may also include mental torture and emotional distressed caused to her.
  6. Interim and Ex parte Orders: Such orders may be passed if it is deemed just and proper upon commission of an act of domestic violence or likelihood of such commission by the Respondent. Such orders are passed on the basis of an affidavit of the aggrieved person against the Respondent.

Right to obtain relief granted by other suits and legal proceedings:

 

The aggrieved person will be entitled to obtain relief granted by other suits and legal proceedings initiated before a civil court, family court or a criminal court.

 

LIABILITIES AND RESTRICTIONS IMPOSED UPON THE RESPONDENT

  1. He can be subjected to certain restrictions as contained in the Protection and Residence order issued against him.
  2. The Respondent can be made accountable for providing monetary relief to the aggrieved person and her children and pay compensation damages as directed in the Compensation order.
  3. He has to follow the arrangements made by the court regarding the custody of the child or children of the aggrieved person as specified in the Custody order.

The Act does not permit any female relative of the husband or male partner to file a complaint against the wife or female partner.

AUTHORITIES RESPONSIBLE AND THEIR FUNCTIONS

The Act provides for appointment of Protection Officers and Service Providers by the state governments to assist the aggrieved person with respect to medical examination, legal aid, safe shelter and other assistance for accessing her rights.

 

Protection Officers: These are officers who are under the jurisdiction and control of the court and have specific duties in situations of domestic violence. They provide assistance to the court in preparing the petition filed in the magistrate's office, also called a Domestic Incident Report. It is their duty to provide necessary information to the aggrieved person on Service Providers and to ensure compliance with the orders for monetary relief.

 

Service Providers: These refer to organizations and institutions working for women's rights, which are recognized under the Companies Act or the Societies Registration Act. They must be registered with the state government to record the Domestic Incident Report and to help the aggrieved person in medical examination. It is their duty to approach and advise the aggrieved person of her rights under the law and assist her in initiating the required legal proceedings or taking appropriate protective measures to remedy the situation. The law protects them for all actions done in good faith and no legal proceedings can be initiated against them for the proper exercise of their powers under the Act.

 

Court of first class Judicial Magistrate or Metropolitan Magistrate: This shall be the competent court to deal with cases of domestic violence and within the local limits of this court, either of the parties must reside or carry on business or employment, or the cause of action must have arisen. The Magistrate is allowed to hold proceedings in camera if either party to the proceedings so desires.

 

General duties of Police Officers, Service Providers and Magistrate: Upon receiving a complaint or report of domestic violence or being present at the place of such an incident, they are under a duty to inform the aggrieved person of:

  1. her right to apply for obtaining a relief or the various orders granted under the Act;
  2. the availability of services of Service Providers and Protection Officers;
  3. her right to obtain free legal services; and
  4. her right to file a complaint under Section 498 A of the Indian Penal Code.

Counselors: The Magistrate may appoint any member of a Service Provider who possesses the prescribed qualifications and experience in counseling, for assisting the parties during the proceedings.

 

Welfare experts: The Magistrate can appoint them for assisting him in discharging his functions.

 

In charge of Shelter Homes: The person in charge of a shelter home shall provide shelter to the aggrieved person in the shelter home upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.

 

In charge of Medical Facilities: The person in charge of a medical facility shall provide medical aid to the aggrieved person upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.

 

Central and State Governments: Such governments are under a duty to ensure wide publicity of the provisions of this Act through all forms of public media at regular intervals, to provide awareness and training to all officers of the government, and to coordinate the services provided by all Ministries and various Departments.

 

PROCEDURE OF FILING COMPLAINT AND THE COURT'S DUTY

  1. The aggrieved person or any other witness of the offence on her behalf can approach a Police Officer, Protection Officer, and Service Provider or can directly file a complaint with a Magistrate for obtaining orders or reliefs under the Act. The informant who in good faith provides information relating to the offence to the relevant authorities will not have any civil or criminal liability.
  2. The court is required to take cognizance of the complaint by instituting a hearing within three days of the complaint being filed in the court.
  3. The Magistrate shall give a notice of the date of hearing to the Protection Officer to be served on the Respondent and such other persons as directed by the Magistrate, within a maximum period of 2 days or such further reasonable time as allowed by the Magistrate.
  4. The court is required to dispose of the case within 60 days of the first hearing.
  5. The court, to establish the offence by the Respondent can use the sole testimony of the aggrieved person.
  6. Upon finding the complaint genuine, the court can pass a Protection Order, which shall remain in force till the aggrieved person applies for discharge. If upon receipt of an application from the aggrieved person, the Magistrate is satisfied that the circumstances so require, he may alter, modify or revoke an order after recording the reasons in writing.
  7. A complaint can also be filed under Section 498 A of the Indian Penal Code, which defines the offence of matrimonial cruelty and prescribes the punishment for the husband of a woman or his relative who subjects her to cruelty.

PENALTY/PUNISHMENT

  1. For Respondent: The breach of Protection Order or interim protection order by the Respondent is a cognizable and non-bailable offence. It is punishable with imprisonment for a term, which may extend to one year or with fine, which may extend to twenty thousand rupees or with both. He can also be tried for offences under the Indian Penal Code and the Dowry Prohibition Act.
  2. For Protection Officer: If he fails or does not discharge his duties as directed by the Magistrate without any sufficient cause, he will be liable for having committed an offence under the Act with similar punishment. However, he cannot be penalized without the prior sanction of the state government. Moreover, the law protects him for all actions taken by him in good faith.

APPEAL

 

An appeal can be made to the Court of Session against any order passed by the Magistrate within 30 days from the date of the order being served on either of the parties.

 

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES 2005

 

The Act empowers the Central government to make rules for carrying out the provisions of the Act. In exercise of this power the Central government has issued the Protection of Women from Domestic Violence Rules 2005 relating to the following matters:

  1. the qualifications and experience to be possessed by a Protection Officer and the terms and conditions of his service;
  2. the form and manner in which a domestic incident report may be made;
  3. the form and the manner in which an application for Protection Order may be made to the Magistrate;
  4. the form in which an application for legal aid and services shall be made;
  5. the other duties to be performed by the Protection Officer;
  6. the rules regulating registration of Service Providers;
  7. the means of serving notices;
  8. the rules regarding counseling and procedure to be followed by a Counselor;
  9. the rules regarding shelter and medical assistance to the aggrieved person;
  10. the rules regarding breach of Protection Orders.

 

... Read More

Posted 03-Mar-16 16:36 PM

What is Domestic violence?

The Indian Legislation recognizes two major provisions in regard to domestic violence and the laws governing its protection.
Domestic violence is regarded as a criminal offence under section 498-A of the Indian Penal Code. This section mainly covers cruelty meted out by a husband and his family towards a married woman. IPC provides for a punishment of upto three years and a fine for the accused of such a crime. However this provision was only restricted to married women.

Recently the Government of India brought to force the 'Protection of Women from Domestic Violence Act 2005', on 26 October, 2006. This Act is exhaustive and was enacted to protect women, not only the wives or female live in partners from domestic violence at the hands of their husbands, or male live in partners or his relatives, but also sisters, widows and mothers living in the household. Domestic violence is defined by Section 3 of this Act, as any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:
1. harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
2. harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
3. has the effect of threatening the aggrieved person or any person related to her 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.

Once the magistrate is convinced that domestic violence has taken place, he has the authority to pass various orders of prohibitory nature against the abuser, which must be obeyed by him. These include:

1. Protection orders : For a victim who has faced domestic violence, personal safety is of paramount importance. Thus the court passes orders which stop the abuser from committing any further act of violence or from entering the place of work or other places visited by the abused, or attempting to connect with the abused, or her relatives. The Act also provides for the employment of Protection Officers and NGOs to provide aid to the woman regarding safe shelter, medical examination and legal aid.
2. Residence orders : Restraining the abuser from entering a portion of the shared household where the aggrieved person lives, directing him to remove himself from the shared house, or to manage alternate accommodation for the aggrieved as is enjoyed by him.
3. The Court may direct the abuser to pay monetary relief and other expenses of the victim.
4. Custody orders ensure that custody of children, if any, go to the victim.
5. Compensation orders where the court directs the abuser to pay compensation for the emotional trauma and stress undergone by the victim.

Thus laws on Domestic violence have greatly empowered women. ... Read More

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