The D.V. Act provides relief to an aggrieved woman who is subjected to “domestic violence.” The “aggrieved person” has been defined by Section 2(a) to mean any woman who is, or has been, in a domestic relationship with the Respondent, and alleges to have been subjected to any act of domestic violence.
Section 2(f) defines “domestic relationship” to include a relationship between two persons who live, or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.
Section 2(q) of the Act defined “Respondent” to mean an “adult male person” who is, or has been, in a domestic relationship with the aggrieved woman.
In Hiral P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors.: (2016) 10 SCC 165 Supreme Court held that the “Respondent” could also be a female in a domestic relationship with the aggrieved person. Section 3 of the D.V. Act gives a gender-neutral definition to “domestic violence”. Physical abuse, verbal abuse, emotional abuse and economic abuse can also be inflicted by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another.
Section 17(2) provides that the aggrieved person cannot be evicted or excluded from a “shared household”, or any part of it by the “Respondent”, save in accordance with the procedure established by law. If “Respondent” is to be read as only an adult male person, women who evict or exclude the aggrieved person would then not be covered by the ambit of the Act, and defeat the very object, by putting forward female persons who can evict or exclude the aggrieved woman from the shared household.
The Court struck down the words “adult male” before the word “person” in Section 2(q) of the 2005 Act, and deleted the proviso to Section 2(q), as being contrary to the object of the Act. The expression “relationship in the nature of marriage” as being akin to a common law or a de facto marriage, came up for consideration in D. Velusamy v. D. Patchaiammal: (2010) 10 SCC 469. It was opined that a common law marriage is one which requires that although a couple may not be formally married:
(a) the couple hold themselves out to society as being akin to spouses;
(b) the parties must be of legal age to marry;
(c) the parties must be otherwise qualified to enter into a legal marriage, including being unmarried; and
(d) the parties must have voluntarily cohabited, and held themselves out to the world as being akin to spouses for a significant period of time.
However, not all live-in relationships would amount to a relationship in the nature of marriage to avail the benefit of D.V. Act. Merely spending week-ends together, or a one-night stand, would not make it a “domestic relationship”.
Relationship in the nature of marriage
For a live-in relationship to fall within the expression “relationship in the nature of marriage”, Supreme Court in Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 laid down the following guidelines:
(a) duration of period of relationship;
(b) shared household;
(c) domestic arrangements;
(d) pooling of resources and financial arrangements;
(e) sexual relationship;
(f) children;
(g) socialisation in public and
(h) intention and conduct of the parties. The Court held that these guidelines were only indicative, and not exhaustive.
Domestic Violence
“Domestic violence” has been defined in Section 3 of the Act, which includes economic abuse as defined in Explanation 1 (iv) to Section 3, as: Economic abuse which means 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, or her children.
Section 17 by a non-obstante Clause provides that notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the “shared household”, irrespective of whether she has any right, title or beneficial interest in the same. Section 17 reads as:
17. Right to reside in a shared household:
(1) Notwithstanding anything contained household: in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the Respondent save in accordance with the procedure established by law.
Section 19 deals with residence orders, grant of injunctive reliefs, or for alternate accommodation/payment of rent by the Respondent.
A three-judge bench of Supreme Court in Satish Chander Ahuja v. Sneha Ahuja has overruled the judgment in S.R. Batra v. Taruna Batra,: (2007) 3 SCC 169 wherein a two judge bench held that the wife is entitled to claim a right of residence in a “shared household” Under Section 17 (1), which would only mean the house belonging to, or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.
In Satish Chander Ahuja (supra), the Court has held that although the judgment in S.R. Batra (supra) noticed the definition of shared household Under Section 2(s), it did not advert to different parts of the definition, which makes it clear that there was no requirement for the shared household to be owned singly or jointly by the husband, or taken on rent by the husband. If the interpretation given in S.R. Batra is accepted, it would frustrate the object of the Act. The Court has taken the view that the definition of “shared household” in Section 2(s) is an exhaustive definition.
The “shared household” is the household which is the dwelling place of the aggrieved person in present time. If the definition of “shared household” in Section 2(s) is read to mean all the houses where the aggrieved person has lived in a domestic relationship alongwith the relatives of the husband, there will be a number of shared households, which was never contemplated by the legislative scheme. The entire scheme of the legislation is to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved woman lives or has lived.
The use of the expression “at any stage has lived”, is with the intent of not denying protection to an aggrieved woman merely on the ground that she was not living there on the date of the application, or on the date when the Magistrate passed the order Under Section 19. The words “lives, or at any stage has lived in a domestic relationship” has to be given its normal and purposeful meaning. Living of the woman in a household must refer to a living which has some permanency. Mere fleeting or casual living at different places would not make it a shared household. The intention of the parties and the nature of living, including the nature of the household, must be considered, to determine as to whether the parties intended to treat the premises as a “shared household” or not.
Section 2(s) r.w. Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the right of residence in a “shared household”, irrespective of her having any legal interest in the same or not. From the definition of “aggrieved person” and “Respondent”, it was clear that:
(i) it is not the requirement of law that the aggrieved person may either own the premises jointly or singly, or by tenanting it jointly or singly;
(ii) the household may belong to a joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has any right, title, or interest in the shared household;
(iii) the shared household may either be owned, or tenanted by the Respondent singly or jointly.
The right to residence Under Section 19 is, however, not an indefeasible right, especially when a daughter-in-law is claiming a right against aged parents-in-law. While granting relief Under Section 12 of the D.V. Act, or in any civil proceeding, the court has to balance the rights between the aggrieved woman and the parents-in-law.
Section 20 provides for monetary relief to the aggrieved woman:
20. Monetary reliefs.-
(1) While disposing of an application under Sub-section (1) of Section 12, the Magistrate may direct the Respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence and such relief may include, but is not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance Under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this Section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
Section 20(1)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded Under Section 125 of the Code of Criminal Procedure, or any other law in force.
Under Sub-section (6) of Section 20, the Magistrate may direct the employer or debtor of the Respondent, to directly pay the aggrieved person, or deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the Respondent, which amount may be adjusted towards the monetary relief payable by the Respondent.
Section 22 provides that the Magistrate may pass an order directing the Respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence perpetrated by the Respondent. 53. Section 23 provides that the Magistrate may grant an ex parte order, including an order Under Section 20 for monetary relief. The Magistrate must be satisfied that the application filed by the aggrieved woman discloses that the Respondent is committing, or has committed an act of domestic violence, or that there is a likelihood that the Respondent may commit an act of domestic violence.
In such a case, the Magistrate is empowered to pass an ex parte order on the basis of the affidavit of the aggrieved woman. 54. Section 26 of the D.V. Act provides that any relief available Under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court. Sub-section (2) of Section 26 provides that the relief mentioned in Sub-section (1) may be sought in addition to, and alongwith any other relief that the aggrieved person may seek in a suit or legal proceeding before a civil or criminal court.
Section 26 (3) provides that in case any relief has been obtained by the aggrieved person in any proceeding other than proceedings under this Act, the aggrieved woman would be bound to inform the Magistrate of the grant of such relief.
Section 36 provides that 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.