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Consequences of Breach of Decree under the Domestic Violence Act

Authored by: Chahat Aggarwal

Introduction

“Half of the Indian populations too are women. women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequalities, indignities, and discrimination”.

– Justice K. Rama Swamy in Madhu Kishwar v. State of Bihar1

Maltreating women or subjecting them to discrimination is not a new concept and has been deep-rooted in our patriarchal society since time immemorial. However, with a paradigm shift in the dynamics of the society, with women matching their feet with the menfolk, their enhanced participation in society and raising their voices against the prevalent injustices in the society, state too has taken responsive measures to ensure that the voices of these women are not muted and they finally get what they deserve.

Domestic Violence Act is one such act which aims to safeguard and protect the rights and interests of women against the chauvinistic attitude of the society and endeavors to afford them protection from being victims of domestic violence meted out to women in their so-called ‘safe home’.

The Protection of women from Domestic Violence Act, 2005

The Protection of women from Domestic Violence Act, 2005 was enacted to provide a remedy in civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

While extensively discussing the provisions under the Domestic Violence Act, Gujarat High Court in the case of Bhartiben Bipinbhai Tamboli v. State of Gujarat and ors., on 8th January, remarked that,

“The Domestic Violence in this Country is rampant and several women encounter Violence in some form or the other or almost every day. However, it is the least reported form of cruel behavior. A woman resigns her fate to the never ending cycle of enduring Violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime. This nonretaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude makes the women vulnerable. The reason why most cases of Domestic Violence are never reported is due to the social stigma of the society and the attitude of the women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male’s relatives.”

The purpose of the Act is to protect rights of women who are victims of Violence of any kind occurring within the family and its provisions cannot be invoked simply for claiming maintenance unless the party alleged an act of Domestic Violence and approach the court in the capacity as an ‘aggrieved person’2.

The scope of the Domestic Violence Act extends to protect Muslim women against Domestic Violence and mere contention that the woman is governed by the Muslim Personal law cannot be an impediment for her to invoke the provisions of the said Act.

The Bombay High Court in Ali Abbas Daruwala v. Shehnaz Daruwala on 4th May, 2018, in a landmark judgement observed that, “The scheme of the enactment does not restrict the applicability of the provisions of the Act to a particular category of women, nevertheless to a woman belonging to a particular religion. No doubt the Muslim women are also governed by several other enactments in the form of Muslim women (Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim Marriage Act, 1939 etc., however, the rights conferred under the said enactments can in no way curtail the operation or Protection granted under the Protection of women from Domestic Violence Act.”

Salient features of the Act

  • Comprehensive enactment – The act covers all those women who are or have been in a relationship with the abuser where both the parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption3. In addition, relationship with family members living together as a joint family is also covered in this Act, including sisters, widows, mothers, single woman, living with the abuser are entitled to legal protection under the present enactment.
  • Expression “Domestic Violence” defined – It defines the expression “Domestic Violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives is also covered under this definition.

The omission of the husband in neglecting to maintain the wife and living with another woman also amounts to ‘economic’ and ‘emotional’ abuse and the wife is entitled to the protection under the Act4.

  • Right of women to secure housing – It provides for the rights of women to secure housing. It also provides for the right of women to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by residence order which is passed by the magistrate under Section 19 of the Act.

However, for the aggrieved party to succeed in its claim, it is necessary that the two parties had lived in a domestic relationship in the household5.

  • Magistrate to pass protection orders – It empowers the Magistrate to pass protection orders in favor of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act of entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
  • Appointment of Protection Officers – It provides for the appointment of Protection Officers and registration of Non-governmental organizations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.
  • Independent and Separate relief – To ensure that the right of a wife is not defeated under the Domestic Violence Act, if a relief has been granted to her under a different statute of law, Section 20 (1) (d) was enacted which provides that,

‘In proceedings under the D.V. Act, the Magistrate may direct the respondent to pay the maintenance to the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force.’

This provision is further strengthened in the words of Section 36 of the said act, which states that, ‘The provisions of the D.V. Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.’

Thus, the Act makes an attempt to safeguard and ensure effective protection of the rights of women guaranteed under the Constitution of India, 1950 who are victims of violence of any kind occurring within the family and for any other connected matters.

Consequences of breach of a decree under the Domestic Violence Act

The Act provides for the appointment of protection officers, service providers to facilitate theaggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, preparing a domestic incident report and further, entrusts the police officers and Magistrates to perform duties tasked under the act and to ensure effective implementation of the Act.

It is a settled that in case of breach of decree passed under the Domestic Violence Act, Non-Bailable warrants can be issued against defaulters only after exhausting other remedies available under law. In case the defaulter has failed to perform his obligation under a decree passed under the DV Act i.e., an order to pay interim maintenance to wife, the Magistrate has to follow the procedure laid down in sub-section (3) of Section 125 and Section 421 of CrPC, and only if the amount was still not recovered, the stage of issuing non-bailable warrant will come into question6.

Sub-section (6) of Section 20 provides that, on failure of the respondent to make payment in term of monetary relief to the aggrieved person, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

Thus, if the respondent fails to provide monetary relief to the aggrieved person, in breach of decree passed by the court, the magistrate has sufficient powers to obtain the sum by directing the employer or a debtor of the respondent, to directly pay the sum to the aggrieved person.

Section 31 of the Act provides for thepenalty payable by respondent in case of breach of protection order –

(1) “A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions”.

Further, Rule 15 of the Protection of women from Domestic Violence Rules, 2006 deals with the breach of the protection order. It states, “Breach of Protection Orders-

(1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.

(2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.

(3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.

(4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the police, if she so chooses.

(5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.

(6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 (2 of 1974).

(7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.

(8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.

(9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include –

(a) an order restraining the accused from threatening to commit or committing an act of domestic violence;

(b) an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;

(c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;

(d) an order prohibiting the possession or use of firearm or any other dangerous weapon;

(e) an order prohibiting the consumption of alcohol or other drugs;

(f) any other order required for protection, safety and adequate relief to the aggrieved person.”

Non-payment of maintenance arrears is not an offence under Section 31 of Domestic Violence Act

The Karnataka High court in Francis Cyril C. Cunha v. Lydia Jane D’Cunha7, ruled that the penal provision found in Section 31 of the Domestic Violence Act could not be invoked against the husband for non-payment of arrears of maintenance. The court observed that, “Providing two separate reliefs, one under Section 18 of the Act for protection and another for monetary relief under Section 20 of the Act will have to be taken into consideration while analyzing the scope of Section 31 of the Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the Act would not have been separately provided for.”

Thus, various remedies have been provided and sufficient powers have been entrusted with the Magistrate and Police officers to ensure effective implementation of the Act and to take necessary steps in case of breach by any defaulter.

This disclaimer informs readers that the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employer, organization, committee or other group or individual.

Footnotes

[1] (1956) 5 SCC 148

[2] Mr. Prakash Kumar Singhee v. Ms. Amrapali Singhee, Writ Petition no. 3553 of 2018 with contempt petition no. 459 of 2017.

[3] Section 2 (f) – ‘Domestic relationship’

[4] Kasturi v. Subhas, CRL. R.P. No. 195/2017

[5] Manmohan Attavar v. Neelam Manmohan Attavar, Civil Appeal no. 2500 of 2017

[6] Sachin v. Sau. Sushma, Criminal Writ Petition No. 305 of 2014.

[7] Criminal revision petition no. 758 of 2015

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