Protection of Women from Domestic Violence Act 2005 (short referred to as “DV Act”) was enacted with a novel approach to add a measure of protection for women who fall victim to violence within their homes by their families. This social welfare measure was in consonance with Article 15(3) of the Constitution of India.
However, as is seen from judicial experience, the remedy is sometimes availed routinely as a means of wreaking personal vengeance, and with ulterior motives as a counterblast. To check this, the Legislation has laid down thorough substantial, and procedural safeguards.
Orders under the DV Act
Section 12 of the DV Act stipulates an application to the Judicial Magistrate First Class (JMFC) seeking relief under the Act. Such an application may be filed by the Aggrieved Person, or the Protection Officer, or any other person on behalf of such aggrieved person. This relaxation in locus standi is allowed for a reason because women are victims who are most often oppressed, and often refrain or are unable to come forward against domestic violence.
Section 12 of the DV Act is as follows:
12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
Remedies under the DV Act
The DV Act stipulates remedies of various nature under Sections 18, 19, 20, 21, and 22 of the DV Act.
Section 18 of the DV Act provides for Protection Orders from the Respondent. These protection orders prohibit the commission of violence against the Applicant/ Aggrieved, and may also prohibit communication with the aggrieved person, causing violence to the dependants, and alienating the assets of the aggrieved person, among other things.
Section 19 of the DV Act provides for Residence Orders. Under Section 19, the Magistrate may pass a residence order the effect of which may be to allow residence in the shared household, removal of the respondent from such household, or direct the respondent to arrange for alternative accommodation, among other things.
Section 20 of the DV Act provides for Monetary Reliefs for the expenses incurred and the losses suffered. Such monetary reliefs may also include maintenance for the aggrieved person or her children
Appeal from Orders of Magistrate
If the party is aggrieved of the order passed by the Magistrate on an application under Section 12 of DV Act, an appeal may be preferred under Section 29 of the DV Act within 30 days from the date on which order is served on the said party or the other party, whichever is later.
Section 29 of the DV Act is as follows:
29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
Criminal Revision against DV Act before Allahabad High Court
An order deciding the Appeal under Section 29 of the DV Act can be challenged by means of Criminal Revision before the Allahabad High Court.
In the case of Dinesh Kumar Yadav vs. State of U.P. and Others, it was held that the Criminal Revision under Section 397 read with Section 401 of the Criminal Procedure Code/ Section 438/442 of the Bhartiya Nagarik Suraksha Sanhita 2023 is an available legal remedy against the Order in an Appeal under the DV Act. The relevant portion of the judgment is as follows:
“In the result, we answer the first question in the affirmative holding that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do not lay down the law correctly. In other words, we hold that a revision under Section 397/401 of Cr P C against a judgment and order passed by the Court of Sessions under Section 29 of the Act, 2005 is maintainable and that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do not lay down the law correctly. Reference is answered, accordingly.”
Other remedies like remedies under Article 227 of the Constitution of India would also be available in such a case. However, a remedy under Article 227 of the Constitution of India, being extraordinary in nature, may be preferred only in extraordinary circumstances, say, if the orders are patently illegal. Article 227 of the Constitution of India may be invoked if there is a clear jurisdictional error and manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner.
Grounds for Challenge in Criminal Revision
In cases pertaining to DV Act, one must highlight the illegality, impropriety, and incorrectness in the impugned orders. In this background, the grounds may be, but not limited to:
- Lack of Domestic Relationship or no shared household
- The Allegations in toto do not constitute “domestic violence” as defined under Section 3 of the DV Act.
- Perverse findings by the Trial Court or the Appellate Court, as the case may be.
- Orders in the teeth of the provisions of the DV Act, eg. Monetary orders are unreasonable without taking into account other orders under Section 125 CrPC, or Section 24 HMA.
It is pertinent to note that the provisions under the DV Act are supplementary to the provisions of other statutes, and maintenance granted under the DV Act would be in addition to orders given under other provisions. Section 36 of the DV Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.