family problem consultation
3 years ago
My dad left my mom after I was born. She is his 2nd wife. My mom tried contacting him but couldn't. Then he came back to us after 16yrs. we got back a s a family. my mom supported him financially too. of course we weren't a perfect family, they had fights sometimes. then he left us again after two and half years. we had not heard from him. tried reaching him but couldn't. then after a year I could contact him. I met him and talked about what he was doing. he said he will make everything right but never did. I meet him maybe 4 or 5 times a year. he stays with his 1st wife . I even told him to get divorced with my mom but he doesn't want that. now that he is financially stable and in a good position I want him to give my mom all the rights that his 1st wife has. need legal assistantance. what should I do?
A.Hi client,
Your father has already committed an offence by getting married for the second time, without divorcing his first wife.
It's better to sit , discuss mutually for a mutual divorce with an amount. Or Lodge a Maintainance case against him U/S 125 CRPC .
Your father has already committed an offence by getting married for the second time, without divorcing his first wife.
It's better to sit , discuss mutually for a mutual divorce with an amount. Or Lodge a Maintainance case against him U/S 125 CRPC .
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Adv. Sarika Khude
Responded 3 years ago
A.the second marriage without divorcing his first wife. If one does so, he can be booked under IPC 494 which may result in imprisonment up to 07 years with fine and second marriage will become null & void.
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Adv Nizar Abdul salam
Responded 3 years ago
A.If your mother have two options, one is to get maintenance from her husband and other one is to get divorce.
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A.Dear Sir,
Just show him sample by filing DV case through your mother.
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Section 3 of Domestic Violence Act
What constitutes Domestic Violence and are considered illegal?
3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—
(a) 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
(b) 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
(c) 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
(d) 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 is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, 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 including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(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 to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. 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.
• Harassment from Husband
Dear Madam,
There are several enactments in favor of married women. You must show heat of the litigation to your husband and mother in law otherwise you cannot sustain in such unbearable atmosphere. You can file Domestic Violence case.
Further, she can also file an application under Section 12 of Domestic Violence Act, thereby seeking compensation for mental harassment. In case she requires residence, then she can file application under Section 19 of the said Act for seeking right to residence.
In addition to aforesaid, in case she desires maintenance then she can file a case under Section 125 Cr.P.C., thereby seeking maintenance.
Domestic violence and abuse
Domestic abuse is behaviour from a family member, partner or ex-partner that:
• is controlling, coercive, threatening, violent or abusive
• happens between people aged over 16
Domestic violence and abuse can happen to men or women. It includes the following types of abuse:
• psychological
• physical
• sexual
• financial
• emotional
Domestic violence and abuse can include harassment, stalking, female genital mutilation, forced marriage and honour-based abuse. It can also include trafficking - get help if you think you've been trafficked.
If you've been affected
If you are the victim of an abusive relationship, you might want to:
• find somewhere safe to stay
• stay in your home and get the person who is harming you to leave
• report the violence to the police
• get a court order to stop your abusive partner from harming or threatening you
• take legal action
• get help from a charity or another organisation
Whatever you want to do, there are organisations that can give you advice and help.
Finding somewhere safe to stay
You may need somewhere safe to stay, either alone or with your children. You could:
• stay at home - if you think this is safe
• stay with relatives or friends
• stay in a refuge
• get emergency accommodation from the local authority under homeless persons law - this will usually mean a bed and breakfast hostel
• get privately rented accommodation.
Finding a refuge
Refuges provide somewhere safe for people and their children to stay and think about what to do next.
Staff at refuges are specialised in dealing with domestic violence, and so can give a lot of emotional and practical support, for example, advice on benefit claims, which solicitors to use and, if necessary, how to contact the police.
If you're a woman you can call the National Domestic Violence Helpline on 0808 2000 247, (see Domestic violence and abuse - organisations which give information and advice for other ways of contacting them).
Helpline staff will do their best to find you somewhere safe to stay that night even if the local refuge is full. They are also happy to talk about any questions they have about refuges.
If you're a man, you can get help from the Men’s Advice Line:
Men's Advice Line (MALE)
Calls are free from mobiles and landlines.
Going to the local authority or Housing Executive
Local authorities have a legal duty to provide help to certain people who are homeless or threatened with homelessness. You will qualify for help if you are eligible for assistance, legally homeless or threatened with homelessness and not intentionally homeless. You must also be in priority need. The local authority may also investigate whether you have a local connection with the area.
You will normally be considered to be legally homeless if it is not reasonable for you to occupy your home because of the risk or fear of domestic violence.
Local authorities, or the Housing Executive in Northern Ireland, should deal sympathetically with applications from people who are in fear of violence. You can ask for a private interview, with someone of the same sex, and can take a friend with you for support.
The local authority (Housing Executive in Northern Ireland) may have a duty to provide emergency accommodation for you while it decides whether you are legally homeless.
If it is outside of normal office hours, you should telephone the local authority's emergency out-of-hours number for help with emergency housing.
Going to privately rented accommodation
If you decide to go into privately rented accommodation you will be unlikely to be able to arrange it quickly - but it could be an option if you have time to plan your departure.
Reporting the violence to the police
Many kinds of domestic abuse are criminal offences and the police can arrest, caution or charge the perpetrator.
Most police stations have Domestic Violence Units or Community Safety Units with specially trained officers to deal with domestic violence and abuse.
You should call 999 in an emergency or 101 in a non-emergency or you can attend a police station in person to report an incident. Find information on all the UK police websites through the UK Police Service Portal at www.police.uk.
If the police arrest and charge a perpetrator, they will decide whether to keep them in custody or release them on bail.
There will usually be conditions attached to their bail to protect you from further violence and abuse. Make sure you ask for your crime reference number which you may need if you contact other agencies for help.
The Crown Prosecution Service will make the final decision on whether your abusive partner is prosecuted - you might have to go to court if they are. If you're worried about going to court, you can get free help and support from the Citizens Advice Witness Service. You can find more information on the criminal prosecution service on the Women's Aid website.
The police can also give you advice on crime prevention and getting something called a police marker on your address, so an officer can get to your home as quickly as possible.
Stopping your abusive partner harming or threatening you
Once you have found a safe place to stay short-term, you will need to think about what to do in the longer term. You will need to consider:
• whether you wish to permanently separate from your partner. You should seek legal advice, see under heading Getting help from a local domestic violence service or a solicitor
• whether you want to take action to keep the abusive partner away from you. This could include getting an injunction to protect yourself from more violent behaviour (known as a non-molestation order), or a court order to sort out who can stay in the family home, for example if you want to stop your violent partner from returning home (known as an occupation order). You can ask the court to make a non-molestation order on GOV.UK. You can find more information about injunctions on the Rights of Women website www.rightsofwomen.org.uk. If you're considering these options, it's best to seek legal advice, see under heading Getting help from a local domestic violence service or a solicitor
• housing. Your legal rights to the family home will depend upon the type of housing, the legal status of your relationship and whether or not you have children. You should get legal advice to ensure that you do everything possible to protect rights to the family home. You should seek advice about the family home even if you are leaving permanently because, if your partner sells the home, you may lose money and possessions. Find out more about what happens to your home when you separate.
• children. If you have children you will need to decide if you are taking the children with you. It may be unsafe to leave them behind. You may need to use the courts to resolve who the children should live with and with whom they should have contact. You should seek legal advice, see under heading Getting help from a local domestic violence service or a solicitor
• money. You will need to sort out your benefit entitlement and tax arrangements and whether or not to apply to court for maintenance for yourself. You may also want to apply to the Child Maintenance Service for them to arrange maintenance for your children. More about child maintenance
If you need further information and advice, you should consult an experienced adviser, for example, a solicitor, law centre or Citizens Advice. You can find your nearest Citizens Advice.
Domestic Violence Protection Notices and Orders
If you have experienced or been threatened with domestic abuse, the police can issue a Domestic Violence Protection Notice and then apply to the magistrates' court for a Domestic Violence Protection Order.
A Domestic Violence Protection Order can protect you from further abuse, and if you live with the perpetrator, ban them from returning to the home and contacting you. If the perpetrator does not keep to the Order, they can be arrested and brought before the court.
A Domestic Violence Protection Order lasts for up to 28 days and gives you time to explore your options and get further support.
The Domestic Violence Disclosure Scheme
Under the Domestic Violence Disclosure Scheme, you can find out about a partner's history of domestic violence from the police. The police will give you information if it is necessary to protect you. The police can also warn you about an individual if they think you are at risk of domestic violence.
Taking legal action
If you need further help, you should get advice from an independent domestic violence adviser or a solicitor who is experienced in family law.
A local advice agency, such as a law centre or Citizens Advice, should be able to help you find a local solicitor who is experienced in this area of the law. In England and Wales, you can also look on the Law Society website.
You may be able to get help with your legal costs - you can check if you qualify for legal aid.
Legal aid helps you with your legal costs including advice and help if you have to go to court.
More about help with legal costs.
You should make an appointment as soon as you feel ready, and could take someone with you for support the first time you go. The initial interview will probably last quite a long time, during which the adviser should discuss with you what courses of legal action are open to you.
If you have to go to court
Going to court can be stressful, but you can make things easier by finding out what will happen on the day. You should also think about how you can explain your side of the story.
Find out more about how to prepare to go to family court on the Advicenow website.
Getting help from a charity or organisation
There are lots of charities and organisations that help both men and women get help with abuse.
If you’re from abroad and a dependent of your ex-partner
You can stay in the UK if your relationship has broken down due to domestic violence.
You can find out how to stay in the UK even if your visa is based on your relationship to your ex-partner.
You must tell the Home Office as soon as you separate - explain your circumstances and that you've experienced domestic abuse. The Home Office might end your permission to stay as a partner, so it's important to make another application to stay as soon as possible.
It's important to get advice from a specialist adviser or immigration lawyer as soon as you can. They'll be able to tell you what to do next and find out if you're eligible for free advice through legal aid.
You can find information about the housing rights of women from abroad fleeing domestic violence on the Housing Rights Information website.
Financial abuse
Financial abuse happens where a perpetrator uses financial means to control you and may include any of the following:
• stopping the victim working
• controlling the household finances including wages, benefits and bank accounts
• forcing the victim to hand over wages and money
• persuading or forcing the victim to take out loans and credit in her/his name.
If you have been pressurised or bullied to take out loans or credit in your name, the debt may be unenforceable - you should get advice from your nearest Citizens Advice.
The domestic violence charity Refuge has produced a financial guide for women experiencing domestic violence at www.refuge.org.uk.
Your local Citizens Advice can give you advice about debt problems. To search for details of your nearest Citizens Advice, including those that can give advice by e-mail, click on nearest Citizens Advice
Honour-based abuse
Honour-based abuse is defined as an incident or crime which has or may have been committed to protect or defend the honour of the family and or community. Honour-based abuse happens where a person is punished by their family or community for doing things that are not in keeping with the traditional beliefs of their culture. For example, you may be a victim of honour-based abuse because you:
• resist an arranged marriage
• resist a forced marriage
• have a partner from a different culture or religion
• live a westernised lifestyle
• want a divorce.
Honour-based abuse may include domestic abuse, sexual or psychological abuse, assault, forced marriage or sending someone back to their country of origin.
The Honour Network Helpline is a specialist organisation which advises victims and survivors of forced marriage and honour-based abuse.
More about organisations which give information and advice on domestic violence and other types of abuse.
Forced marriage
A forced marriage is where you are pressurised into it against your will. You may be emotionally blackmailed or physically threatened usually by your family. It is not the same as an arranged marriage where both parties agree to get married.
In England and Wales, forced marriage is a criminal offence. If someone forces you into marriage, they could go to prison for up to seven years.
More about forced marriage
Harassment and stalking
Harassment happens when you receive unwanted behaviour from another person which alarms or distresses you. Examples of harassment include malicious phone calls, threatening texts, threatening and insulting language and damage to property.
Stalking is a form of harassment and may include behaviour such as following, contacting or attempting to contact you, monitoring your email and internet, watching and spying on you and other similar behaviour.
It is a criminal and civil offence for another person to harass or stalk you. You can report the matter to the police. Many police forces have a specialist police officer who deals with harassment or stalking.
You may also be able to get an injunction in the civil courts to stop the harassment or stalking taking place and claim damages. If an harasser breaches an injunction, it is a criminal offence.
You can get further information and guidance on how to deal with harassment and stalking from the National Stalking Helpline. Go to www.stalkinghelpline.org.
Further help
There are at least five "L's" which contribute to strong family relationships.1. Learning, 2. Loyalty, 3.Love, 4. Laughter, 5. leadership.adult family members must get the family to work together and try to solve the family problems internally.
Dear Sir,
The husband can protest from all corners and see that wife cannot file such false cases. Though law with good intention created married women favoring enactments but most of them misusing the same for their persons ends and trying to take revenge. Whenever the case is filed it is better to get stay order from High Court or otherwise see that she is not able to get fruits of the orders passed in her favor.
Domestic Violence case can be registered by the victim at Police Station or Women cell. She can also take the help of NGO's for registering the complaint. The police will record DIR and forward it to Magistrate. Just like a civil case, It will be defended in Court. 60 days time limit is given to decide the issue but we know how much time these cases take.
Are you a victim of domestic violence and clueless about what to do next? Read this article to get a brief insight of all the legal steps that can be undertaken in such a situation. Domestic violence is the violent act of one spouse on another in order to gain power and control by instilling fear and subservience. Domestic violence includes harms or injuries which endangers health, safety, life, limb, or well being of women. Domestic violence does not just include physical abuse but also mental, sexual, emotional and economic abuse.
In India, more than 55% of the women suffer from domestic violence, especially in the states of U.P., M.P. and other Northern states. According to United Nation Population Fund Report, around two-third of the married Indian women are victims of domestic violence attacks. However, most of the women prefer staying with her husband and tolerating the abuse in the interest of their children. While few others resist from filing the case as they do not want to get involved in long legal proceedings either due to financial disability or because of the fear of undergoing public shame and scrutiny. As a result, most of the cases of domestic violence go unreported.
However, it is very important to raise your voice against this gruesome act of the husband or his relatives rather than quietly enduring it. The offence of domestic violence is covered by both- section 498a of the Indian Penal Code, 1860 and by the Domestic Violence Act, 2005. However, both these provisions treat only the women as the victim and not the man in a relationship. Hence, only woman can seek relief through it. Before we delve into
how you can file a domestic violence case in India, let’s understand what is domestic violence?
What is considered as domestic violence under law?
Domestic violence as defined under section 3 of the Domestic Violence Act, 2005 includes:
Any kind of harm/ injury that is likely to endanger the life, health, limb and well being of the woman whether physical or mental.
Or any harassment with a view to coerce the woman or any person related to her to meet any unlawful demand of property or security (dowry).
Against whom can you file the complaint?
If you are being constantly tortured and ill-treated in your matrimonial home or are undergoing mental trauma due to the acts of your in-laws, you can immediately file a legal complaint against all such people. It is a general misconception that domestic violence is “only” committed by the husband on his wife, which is untrue. A woman can file a complaint against the husband or any of his relative. A woman who is staying in a live-in relationship with a man can also file a case against him if he commits the offence of domestic violence.
Procedure for filing a domestic violence case
The victim of domestic violence or any witness of the offence, on her behalf, can file an FIR/complaint with the local police officer, or the protection officer, or service provider, or directly to the Magistrate. The basic question that comes in the mind of every person filing a case is that which court should he/her approach? A domestic violence case is heard by the judge of the court within whose local limit either the victim resides or the accused or where the action has been committed.
1. The Magistrate shall upon receiving the complaint, commence the hearing of the case within 3 days of the complaint being filed.
2. The Magistrate shall also give the notice of the date of hearing to the Protection officer who shall issue it to the accused.
3. The court shall as far as possible dispose the case within a period of sixty days from the date of the first hearing.
4.You can even request the Magistrate to conduct the proceeding in camera, i.e. you will not be required to be physically present for the hearing and the proceedings will be conducted via video conferencing.
5. The court after conducting the hearings of the case, if satisfied that a genuine case of domestic violence was filed and the accused has actually committed the offence, can pass any of the following orders as it may consider necessary in the circumstances of the case (you can also request the court to pass any of these orders)-
a. Protection orders: Wherein the court can further restrain the accused to commit the act of domestic violence on you or any of your family members or can even disallow him/her to enter your place of employment or residence. The protection order can be claimed by you as an interim relief, i.e. before the final judgement is passed.
b. Residence orders: The court, if satisfied, that you have no other place to stay or for any other reason, then it can also prevent the accused from dispossessing you from your matrimonial home and can even disallow him to enter that area of the household in which you are residing.
c. Monetary relief: You can even ask the court for monetary relief from the accused in order to incur your medical expenses any other loss that has occurred to you due to the offence being committed.
d. Custody of the child: The court can also grant the temporary custody of the child/children to the person making the application.
e. Compensation orders: In addition to above-mentioned reliefs, the Magistrate may also on an application being made by you, pass an order directing the accused to pay the compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence.
These orders will remain in force until the victim files an application in the court for its revocation.
If the order of the court is not passed in your favour, you can also make an appeal against the order within thirty days from the date on which the order is passed.
You can file a case under section 498a of IPC
Section 498a of the Indian Penal Code, 1860, also deals with the offence of domestic violence that provides for the punishment i.e. an imprisonment of three years or fine or both. Thus, an FIR for an offence under section 498a can be registered in the local police station of your area against the husband/his relative.
You can further consult a lawyer who has professional experience in dealing with the cases of domestic violence.
Lastly, if you do not want your name to be directly involved in the case then you can take this third route i.e. you can approach an NGO, that will file the case in the court on your behalf and fight for your cause. Following are the contact details of few NGOs you can seek help from :
- ALL INDIA WOMEN’S CONFERENCE – 23381165
- JWP JOINT WOMEN’S PROGRAMME – 24314821
- STREEBAL – 26164113
- SHAKTI SHALINI – 24312483
TO NEWBIES OF DV:
1. First protection officer takes complaint from wife, does not make investigation, passes it on to magistrate.
2. Magistrate takes time to register case, after which a case number is give.
3. Accused , co-accused are sent summons separetly to appear before court.
4. Wife submits her affidavit, with her set of allegations.
5. Depending on whether wife has asked for residential orders stating that she is on the streets, wife will get exparte orders and get chance to barge into matrimonial house, provided husband is still staying there. If not staying there go back to mommys house and still state she is on the streets.
6. Magistrate will issue warrant for noncompliance of orders by husband.
7. Further, again warrant issue, then NBW.
8. Then one fine day stage for evidence is all set!
1) If the applicant/complainant submits evidence during evidence stage, than next stage for opponents is to submit their evidence or to first cross examine the applicant?
First wife will submit evidence, then husband has to submit evidence.
Then examination cheif will happen, marking of documents etc.
first wife, then husband.
Then one date for cross examination of wife will happen, subsequently cross examination of husband will happen.
Then one more date for arguments.
Take one more date for further cross examination and arguments.
1. If she has filed DV Complaint directly at Magistrate Court then Magistrate will issue Notice to summon arrayed respondents via Jurisdiction Police Station subject to she filing process fee form attaching copy of the complaint.
2. On the date of hearing present yourself before the Magistrate court and as and why required file exemption application for appearance of those arrayed names whose regular presence is not required till evidence stage. Rest can follow the due process of the Court under DV Complaint case which is to file reply and brief argument over interim protection Orders. etc. are what follows herewith.
3. When final protection order are to be decided by that time Magistrate will ask for DIR from either court attached PO or failing which from jurisdiction police station in charge. Till that time not much you/your side can do.
4. Quash grounds by face of bare reading your brief are not made out at this stage (as per me) Rest may have their independent opinion on quash from your so far brief !.
Domestic Violence in India
India has adopted the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights, both of which ensure that women are given equal rights as men and are not subjected to any kind of discrimination. The Constitution of India also guarantees substantive justice to women. Article 15 of the Constitution provides for prohibition of discrimination against the citizens on grounds of religion, race, caste, sex or place of birth or their subjection to any disability, liability or restriction on such grounds. Article 15 (3) gives power to the legislature to make special provision for women and children. In exercise of this power, the Protection of Women from Domestic Violence Act was passed in 2005.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
MAIN FEATURES OF THE ACT
DEFINITIONS
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-
i. an act or conduct causing bodily pain, harm, or danger to life, limb, or health;
ii. an act that impairs the health or development of the aggrieved person;
iii. an act that amounts to assault, criminal intimidation and criminal force.
2. Sexual Abuse-
i. any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman.
3. Verbal and Emotional Abuse-
i. any insult, ridicule, humiliation, name-calling;
ii. insults or ridicule for not having a child or a male child;
iii. repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
4. Economic Abuse-
i. 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;
ii. disposing of household assets or alienation of movable or immovable assets;
iii. 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:
i. 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.
ii. 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.
iii. 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:
Please give me Rank 5 if you feel my answer helped you.
Just show him sample by filing DV case through your mother.
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Section 3 of Domestic Violence Act
What constitutes Domestic Violence and are considered illegal?
3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—
(a) 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
(b) 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
(c) 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
(d) 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 is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, 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 including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(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 to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. 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.
• Harassment from Husband
Dear Madam,
There are several enactments in favor of married women. You must show heat of the litigation to your husband and mother in law otherwise you cannot sustain in such unbearable atmosphere. You can file Domestic Violence case.
Further, she can also file an application under Section 12 of Domestic Violence Act, thereby seeking compensation for mental harassment. In case she requires residence, then she can file application under Section 19 of the said Act for seeking right to residence.
In addition to aforesaid, in case she desires maintenance then she can file a case under Section 125 Cr.P.C., thereby seeking maintenance.
Domestic violence and abuse
Domestic abuse is behaviour from a family member, partner or ex-partner that:
• is controlling, coercive, threatening, violent or abusive
• happens between people aged over 16
Domestic violence and abuse can happen to men or women. It includes the following types of abuse:
• psychological
• physical
• sexual
• financial
• emotional
Domestic violence and abuse can include harassment, stalking, female genital mutilation, forced marriage and honour-based abuse. It can also include trafficking - get help if you think you've been trafficked.
If you've been affected
If you are the victim of an abusive relationship, you might want to:
• find somewhere safe to stay
• stay in your home and get the person who is harming you to leave
• report the violence to the police
• get a court order to stop your abusive partner from harming or threatening you
• take legal action
• get help from a charity or another organisation
Whatever you want to do, there are organisations that can give you advice and help.
Finding somewhere safe to stay
You may need somewhere safe to stay, either alone or with your children. You could:
• stay at home - if you think this is safe
• stay with relatives or friends
• stay in a refuge
• get emergency accommodation from the local authority under homeless persons law - this will usually mean a bed and breakfast hostel
• get privately rented accommodation.
Finding a refuge
Refuges provide somewhere safe for people and their children to stay and think about what to do next.
Staff at refuges are specialised in dealing with domestic violence, and so can give a lot of emotional and practical support, for example, advice on benefit claims, which solicitors to use and, if necessary, how to contact the police.
If you're a woman you can call the National Domestic Violence Helpline on 0808 2000 247, (see Domestic violence and abuse - organisations which give information and advice for other ways of contacting them).
Helpline staff will do their best to find you somewhere safe to stay that night even if the local refuge is full. They are also happy to talk about any questions they have about refuges.
If you're a man, you can get help from the Men’s Advice Line:
Men's Advice Line (MALE)
Calls are free from mobiles and landlines.
Going to the local authority or Housing Executive
Local authorities have a legal duty to provide help to certain people who are homeless or threatened with homelessness. You will qualify for help if you are eligible for assistance, legally homeless or threatened with homelessness and not intentionally homeless. You must also be in priority need. The local authority may also investigate whether you have a local connection with the area.
You will normally be considered to be legally homeless if it is not reasonable for you to occupy your home because of the risk or fear of domestic violence.
Local authorities, or the Housing Executive in Northern Ireland, should deal sympathetically with applications from people who are in fear of violence. You can ask for a private interview, with someone of the same sex, and can take a friend with you for support.
The local authority (Housing Executive in Northern Ireland) may have a duty to provide emergency accommodation for you while it decides whether you are legally homeless.
If it is outside of normal office hours, you should telephone the local authority's emergency out-of-hours number for help with emergency housing.
Going to privately rented accommodation
If you decide to go into privately rented accommodation you will be unlikely to be able to arrange it quickly - but it could be an option if you have time to plan your departure.
Reporting the violence to the police
Many kinds of domestic abuse are criminal offences and the police can arrest, caution or charge the perpetrator.
Most police stations have Domestic Violence Units or Community Safety Units with specially trained officers to deal with domestic violence and abuse.
You should call 999 in an emergency or 101 in a non-emergency or you can attend a police station in person to report an incident. Find information on all the UK police websites through the UK Police Service Portal at www.police.uk.
If the police arrest and charge a perpetrator, they will decide whether to keep them in custody or release them on bail.
There will usually be conditions attached to their bail to protect you from further violence and abuse. Make sure you ask for your crime reference number which you may need if you contact other agencies for help.
The Crown Prosecution Service will make the final decision on whether your abusive partner is prosecuted - you might have to go to court if they are. If you're worried about going to court, you can get free help and support from the Citizens Advice Witness Service. You can find more information on the criminal prosecution service on the Women's Aid website.
The police can also give you advice on crime prevention and getting something called a police marker on your address, so an officer can get to your home as quickly as possible.
Stopping your abusive partner harming or threatening you
Once you have found a safe place to stay short-term, you will need to think about what to do in the longer term. You will need to consider:
• whether you wish to permanently separate from your partner. You should seek legal advice, see under heading Getting help from a local domestic violence service or a solicitor
• whether you want to take action to keep the abusive partner away from you. This could include getting an injunction to protect yourself from more violent behaviour (known as a non-molestation order), or a court order to sort out who can stay in the family home, for example if you want to stop your violent partner from returning home (known as an occupation order). You can ask the court to make a non-molestation order on GOV.UK. You can find more information about injunctions on the Rights of Women website www.rightsofwomen.org.uk. If you're considering these options, it's best to seek legal advice, see under heading Getting help from a local domestic violence service or a solicitor
• housing. Your legal rights to the family home will depend upon the type of housing, the legal status of your relationship and whether or not you have children. You should get legal advice to ensure that you do everything possible to protect rights to the family home. You should seek advice about the family home even if you are leaving permanently because, if your partner sells the home, you may lose money and possessions. Find out more about what happens to your home when you separate.
• children. If you have children you will need to decide if you are taking the children with you. It may be unsafe to leave them behind. You may need to use the courts to resolve who the children should live with and with whom they should have contact. You should seek legal advice, see under heading Getting help from a local domestic violence service or a solicitor
• money. You will need to sort out your benefit entitlement and tax arrangements and whether or not to apply to court for maintenance for yourself. You may also want to apply to the Child Maintenance Service for them to arrange maintenance for your children. More about child maintenance
If you need further information and advice, you should consult an experienced adviser, for example, a solicitor, law centre or Citizens Advice. You can find your nearest Citizens Advice.
Domestic Violence Protection Notices and Orders
If you have experienced or been threatened with domestic abuse, the police can issue a Domestic Violence Protection Notice and then apply to the magistrates' court for a Domestic Violence Protection Order.
A Domestic Violence Protection Order can protect you from further abuse, and if you live with the perpetrator, ban them from returning to the home and contacting you. If the perpetrator does not keep to the Order, they can be arrested and brought before the court.
A Domestic Violence Protection Order lasts for up to 28 days and gives you time to explore your options and get further support.
The Domestic Violence Disclosure Scheme
Under the Domestic Violence Disclosure Scheme, you can find out about a partner's history of domestic violence from the police. The police will give you information if it is necessary to protect you. The police can also warn you about an individual if they think you are at risk of domestic violence.
Taking legal action
If you need further help, you should get advice from an independent domestic violence adviser or a solicitor who is experienced in family law.
A local advice agency, such as a law centre or Citizens Advice, should be able to help you find a local solicitor who is experienced in this area of the law. In England and Wales, you can also look on the Law Society website.
You may be able to get help with your legal costs - you can check if you qualify for legal aid.
Legal aid helps you with your legal costs including advice and help if you have to go to court.
More about help with legal costs.
You should make an appointment as soon as you feel ready, and could take someone with you for support the first time you go. The initial interview will probably last quite a long time, during which the adviser should discuss with you what courses of legal action are open to you.
If you have to go to court
Going to court can be stressful, but you can make things easier by finding out what will happen on the day. You should also think about how you can explain your side of the story.
Find out more about how to prepare to go to family court on the Advicenow website.
Getting help from a charity or organisation
There are lots of charities and organisations that help both men and women get help with abuse.
If you’re from abroad and a dependent of your ex-partner
You can stay in the UK if your relationship has broken down due to domestic violence.
You can find out how to stay in the UK even if your visa is based on your relationship to your ex-partner.
You must tell the Home Office as soon as you separate - explain your circumstances and that you've experienced domestic abuse. The Home Office might end your permission to stay as a partner, so it's important to make another application to stay as soon as possible.
It's important to get advice from a specialist adviser or immigration lawyer as soon as you can. They'll be able to tell you what to do next and find out if you're eligible for free advice through legal aid.
You can find information about the housing rights of women from abroad fleeing domestic violence on the Housing Rights Information website.
Financial abuse
Financial abuse happens where a perpetrator uses financial means to control you and may include any of the following:
• stopping the victim working
• controlling the household finances including wages, benefits and bank accounts
• forcing the victim to hand over wages and money
• persuading or forcing the victim to take out loans and credit in her/his name.
If you have been pressurised or bullied to take out loans or credit in your name, the debt may be unenforceable - you should get advice from your nearest Citizens Advice.
The domestic violence charity Refuge has produced a financial guide for women experiencing domestic violence at www.refuge.org.uk.
Your local Citizens Advice can give you advice about debt problems. To search for details of your nearest Citizens Advice, including those that can give advice by e-mail, click on nearest Citizens Advice
Honour-based abuse
Honour-based abuse is defined as an incident or crime which has or may have been committed to protect or defend the honour of the family and or community. Honour-based abuse happens where a person is punished by their family or community for doing things that are not in keeping with the traditional beliefs of their culture. For example, you may be a victim of honour-based abuse because you:
• resist an arranged marriage
• resist a forced marriage
• have a partner from a different culture or religion
• live a westernised lifestyle
• want a divorce.
Honour-based abuse may include domestic abuse, sexual or psychological abuse, assault, forced marriage or sending someone back to their country of origin.
The Honour Network Helpline is a specialist organisation which advises victims and survivors of forced marriage and honour-based abuse.
More about organisations which give information and advice on domestic violence and other types of abuse.
Forced marriage
A forced marriage is where you are pressurised into it against your will. You may be emotionally blackmailed or physically threatened usually by your family. It is not the same as an arranged marriage where both parties agree to get married.
In England and Wales, forced marriage is a criminal offence. If someone forces you into marriage, they could go to prison for up to seven years.
More about forced marriage
Harassment and stalking
Harassment happens when you receive unwanted behaviour from another person which alarms or distresses you. Examples of harassment include malicious phone calls, threatening texts, threatening and insulting language and damage to property.
Stalking is a form of harassment and may include behaviour such as following, contacting or attempting to contact you, monitoring your email and internet, watching and spying on you and other similar behaviour.
It is a criminal and civil offence for another person to harass or stalk you. You can report the matter to the police. Many police forces have a specialist police officer who deals with harassment or stalking.
You may also be able to get an injunction in the civil courts to stop the harassment or stalking taking place and claim damages. If an harasser breaches an injunction, it is a criminal offence.
You can get further information and guidance on how to deal with harassment and stalking from the National Stalking Helpline. Go to www.stalkinghelpline.org.
Further help
There are at least five "L's" which contribute to strong family relationships.1. Learning, 2. Loyalty, 3.Love, 4. Laughter, 5. leadership.adult family members must get the family to work together and try to solve the family problems internally.
Dear Sir,
The husband can protest from all corners and see that wife cannot file such false cases. Though law with good intention created married women favoring enactments but most of them misusing the same for their persons ends and trying to take revenge. Whenever the case is filed it is better to get stay order from High Court or otherwise see that she is not able to get fruits of the orders passed in her favor.
Domestic Violence case can be registered by the victim at Police Station or Women cell. She can also take the help of NGO's for registering the complaint. The police will record DIR and forward it to Magistrate. Just like a civil case, It will be defended in Court. 60 days time limit is given to decide the issue but we know how much time these cases take.
Are you a victim of domestic violence and clueless about what to do next? Read this article to get a brief insight of all the legal steps that can be undertaken in such a situation. Domestic violence is the violent act of one spouse on another in order to gain power and control by instilling fear and subservience. Domestic violence includes harms or injuries which endangers health, safety, life, limb, or well being of women. Domestic violence does not just include physical abuse but also mental, sexual, emotional and economic abuse.
In India, more than 55% of the women suffer from domestic violence, especially in the states of U.P., M.P. and other Northern states. According to United Nation Population Fund Report, around two-third of the married Indian women are victims of domestic violence attacks. However, most of the women prefer staying with her husband and tolerating the abuse in the interest of their children. While few others resist from filing the case as they do not want to get involved in long legal proceedings either due to financial disability or because of the fear of undergoing public shame and scrutiny. As a result, most of the cases of domestic violence go unreported.
However, it is very important to raise your voice against this gruesome act of the husband or his relatives rather than quietly enduring it. The offence of domestic violence is covered by both- section 498a of the Indian Penal Code, 1860 and by the Domestic Violence Act, 2005. However, both these provisions treat only the women as the victim and not the man in a relationship. Hence, only woman can seek relief through it. Before we delve into
how you can file a domestic violence case in India, let’s understand what is domestic violence?
What is considered as domestic violence under law?
Domestic violence as defined under section 3 of the Domestic Violence Act, 2005 includes:
Any kind of harm/ injury that is likely to endanger the life, health, limb and well being of the woman whether physical or mental.
Or any harassment with a view to coerce the woman or any person related to her to meet any unlawful demand of property or security (dowry).
Against whom can you file the complaint?
If you are being constantly tortured and ill-treated in your matrimonial home or are undergoing mental trauma due to the acts of your in-laws, you can immediately file a legal complaint against all such people. It is a general misconception that domestic violence is “only” committed by the husband on his wife, which is untrue. A woman can file a complaint against the husband or any of his relative. A woman who is staying in a live-in relationship with a man can also file a case against him if he commits the offence of domestic violence.
Procedure for filing a domestic violence case
The victim of domestic violence or any witness of the offence, on her behalf, can file an FIR/complaint with the local police officer, or the protection officer, or service provider, or directly to the Magistrate. The basic question that comes in the mind of every person filing a case is that which court should he/her approach? A domestic violence case is heard by the judge of the court within whose local limit either the victim resides or the accused or where the action has been committed.
1. The Magistrate shall upon receiving the complaint, commence the hearing of the case within 3 days of the complaint being filed.
2. The Magistrate shall also give the notice of the date of hearing to the Protection officer who shall issue it to the accused.
3. The court shall as far as possible dispose the case within a period of sixty days from the date of the first hearing.
4.You can even request the Magistrate to conduct the proceeding in camera, i.e. you will not be required to be physically present for the hearing and the proceedings will be conducted via video conferencing.
5. The court after conducting the hearings of the case, if satisfied that a genuine case of domestic violence was filed and the accused has actually committed the offence, can pass any of the following orders as it may consider necessary in the circumstances of the case (you can also request the court to pass any of these orders)-
a. Protection orders: Wherein the court can further restrain the accused to commit the act of domestic violence on you or any of your family members or can even disallow him/her to enter your place of employment or residence. The protection order can be claimed by you as an interim relief, i.e. before the final judgement is passed.
b. Residence orders: The court, if satisfied, that you have no other place to stay or for any other reason, then it can also prevent the accused from dispossessing you from your matrimonial home and can even disallow him to enter that area of the household in which you are residing.
c. Monetary relief: You can even ask the court for monetary relief from the accused in order to incur your medical expenses any other loss that has occurred to you due to the offence being committed.
d. Custody of the child: The court can also grant the temporary custody of the child/children to the person making the application.
e. Compensation orders: In addition to above-mentioned reliefs, the Magistrate may also on an application being made by you, pass an order directing the accused to pay the compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence.
These orders will remain in force until the victim files an application in the court for its revocation.
If the order of the court is not passed in your favour, you can also make an appeal against the order within thirty days from the date on which the order is passed.
You can file a case under section 498a of IPC
Section 498a of the Indian Penal Code, 1860, also deals with the offence of domestic violence that provides for the punishment i.e. an imprisonment of three years or fine or both. Thus, an FIR for an offence under section 498a can be registered in the local police station of your area against the husband/his relative.
You can further consult a lawyer who has professional experience in dealing with the cases of domestic violence.
Lastly, if you do not want your name to be directly involved in the case then you can take this third route i.e. you can approach an NGO, that will file the case in the court on your behalf and fight for your cause. Following are the contact details of few NGOs you can seek help from :
- ALL INDIA WOMEN’S CONFERENCE – 23381165
- JWP JOINT WOMEN’S PROGRAMME – 24314821
- STREEBAL – 26164113
- SHAKTI SHALINI – 24312483
TO NEWBIES OF DV:
1. First protection officer takes complaint from wife, does not make investigation, passes it on to magistrate.
2. Magistrate takes time to register case, after which a case number is give.
3. Accused , co-accused are sent summons separetly to appear before court.
4. Wife submits her affidavit, with her set of allegations.
5. Depending on whether wife has asked for residential orders stating that she is on the streets, wife will get exparte orders and get chance to barge into matrimonial house, provided husband is still staying there. If not staying there go back to mommys house and still state she is on the streets.
6. Magistrate will issue warrant for noncompliance of orders by husband.
7. Further, again warrant issue, then NBW.
8. Then one fine day stage for evidence is all set!
1) If the applicant/complainant submits evidence during evidence stage, than next stage for opponents is to submit their evidence or to first cross examine the applicant?
First wife will submit evidence, then husband has to submit evidence.
Then examination cheif will happen, marking of documents etc.
first wife, then husband.
Then one date for cross examination of wife will happen, subsequently cross examination of husband will happen.
Then one more date for arguments.
Take one more date for further cross examination and arguments.
1. If she has filed DV Complaint directly at Magistrate Court then Magistrate will issue Notice to summon arrayed respondents via Jurisdiction Police Station subject to she filing process fee form attaching copy of the complaint.
2. On the date of hearing present yourself before the Magistrate court and as and why required file exemption application for appearance of those arrayed names whose regular presence is not required till evidence stage. Rest can follow the due process of the Court under DV Complaint case which is to file reply and brief argument over interim protection Orders. etc. are what follows herewith.
3. When final protection order are to be decided by that time Magistrate will ask for DIR from either court attached PO or failing which from jurisdiction police station in charge. Till that time not much you/your side can do.
4. Quash grounds by face of bare reading your brief are not made out at this stage (as per me) Rest may have their independent opinion on quash from your so far brief !.
Domestic Violence in India
India has adopted the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights, both of which ensure that women are given equal rights as men and are not subjected to any kind of discrimination. The Constitution of India also guarantees substantive justice to women. Article 15 of the Constitution provides for prohibition of discrimination against the citizens on grounds of religion, race, caste, sex or place of birth or their subjection to any disability, liability or restriction on such grounds. Article 15 (3) gives power to the legislature to make special provision for women and children. In exercise of this power, the Protection of Women from Domestic Violence Act was passed in 2005.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
MAIN FEATURES OF THE ACT
DEFINITIONS
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-
i. an act or conduct causing bodily pain, harm, or danger to life, limb, or health;
ii. an act that impairs the health or development of the aggrieved person;
iii. an act that amounts to assault, criminal intimidation and criminal force.
2. Sexual Abuse-
i. any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman.
3. Verbal and Emotional Abuse-
i. any insult, ridicule, humiliation, name-calling;
ii. insults or ridicule for not having a child or a male child;
iii. repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
4. Economic Abuse-
i. 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;
ii. disposing of household assets or alienation of movable or immovable assets;
iii. 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:
i. 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.
ii. 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.
iii. 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:
Please give me Rank 5 if you feel my answer helped you.
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Suneel Moudgil
Responded 3 years ago
A.1. one cannot perform the second marriage without divorcing his first wife. If one does so, he can be booked under IPC 494 which may result in imprisonment up to 07 years with fine and second marriage will become null & void,
2. in the given facts your father's marriage with your mom is void/null, however, you being his biological son holds complete rights as his son,
2. in the given facts your father's marriage with your mom is void/null, however, you being his biological son holds complete rights as his son,
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Ayantika Mondal @ Prime Legal
Responded 3 years ago
A.Yes, you should file a maintenance petition U/s 125 of CrPC
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