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Interim Maintenance under the Domestic Violence Act
  • By: Adv. Kishan Dutt Kalaskar
  • Date: 01 Aug 2020
  • Domestic Violence
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Domestic Violence is a type of abuse in the general domestic setting, such as in a marriage or cohabitation. Domestic violence usually gives rise to divorces between the couples as domestic violence is mostly witnessed in a marriage. In India, most of the wives file for a divorce due to domestic violence. In the times of Covid-19, the rate of domestic violence has increased rapidly due to the lockdown.

Domestic Violence Act: Interim Maintenance        

Discussion regarding the payment of maintenance need always refer to Sec. 125 of the CrPC which has been upheld to pay maintenance to the wife in a divorce proceeding, such that her status and standard of living will be maintained. The general rule of thumb is that the maintenance depends on the wife’s own capacity of earning and maintaining herself, and this will always play a role in determining the court’s decision to award maintenance. This paper is regarding a specific version of maintenance, and special legislative and judicial changes that have been made to it. This paper focusses on the payment of maintenance under the Domestic Violence Act, and the difficulties, if any that a petitioner has to undergo in receiving such maintenance.

The Act

To begin with, a little statutory introspection is necessary: Sections 12 and 23 of the Act, provide for the maintenance, in its own way Section 12 allows the filing before a magistrate for any of the reliefs provided in this act, including interim relief. Section 23, on the other hand, allows the magistrate to provide interim, or ex-part orders. Note here that neither of these sections describes maintenance, and the responsibility of the Judge, or discretion to pay maintenance. This is because maintenance is covered under Sec. 20 of the act, in the limited sense that it is mandated despite any payments already being made under Sec. 125 of the IPC. This means that there is no special power or relief under the Domestic Violence Act that covers women that face domestic abuse and needed protection under the law. Another important aspect of the statute to be kept in mind is the definition of economic abuse: Sec. 3 of the act includes the non-payment of maintenance as a separate form of domestic abuse. This paper will discuss the wisdom of doing so later on, but this definition makes it clear that the withholding of maintenance is a further offence and additional ground for filing under the act.

It is important to note that the act is not a family statute, and it does not provide a civil law remedy of divorce, separation or any of the conventional family law remedies, but it simply provides for maintenance, compensation and other tortious remedies and is rooted in criminal law. Most remedies are reflected in Sec. 18 and 19. Interim maintenance in this act is something similar, and it is not a power bestowed by statute, but rather has been left to the discretion of the magistrate. Interim maintenance under the act is not provided for and needs to be specifically listed and filed for. The aggrieved party has to file an application as provided in the Rules framed by the central Government and make a prima facie case for providing maintenance. This is the crux of all difficulty in making an interim maintenance application under the act.

The Precedent

It was recently decided by a bench in the Delhi HC, in Gaurav Machanda v Namrata Singh 2019 SCC Del 7353, that the right in Sec23 was not an entitlement to maintenance under the statute, but rather merely to present the application thereto. This has been the watchword in most Domestic Violence Act cases, the maintenance doesn’t become an automatic right, and in fact, this decision is in line with previous decisions by the same court regarding the status of maintenance of a woman in domestic violence. It is true that no such rights or any regular payment exist as a separate and distinct award under the act, as held in Javeria Iqbal Majid Khan Patni v Atif Iqbal Mansoori (2014) 10 SCC 76. The consensus through many ratios of the High Courts is that the applicant needs to establish a prima facie case for eligibility of maintenance under the act, or rather, in general: In Rajeev Preejna v Sarika and Ors.  The Delhi HC held that at the time of decision regarding the interim maintenance, questions such as the financial capacity of the petitioner, the pendency of the suit in court, etc.was not the matter of focus if the petitioner has submitted documentation before the court establishing the right to interim maintenance. It is in fact little that the petitioner needs to establish, as we see in the decision of Rahul Arun Suryacanshi v Anita Rahul Suryavanshi where the petitioner for interim maintenance, as per the lower courts, has not even submitted proper documentation pertaining to her painful employment and salary attached thereto, yet her application for interim maintenance has been accepted by the HC.

Limitations and Hurdles

Furthermore, under the provisions of the act, such maintenance can be given even if parallel maintenance is being provided in another jurisdiction: Anwar v Mr Shameena Bano. In fact, the SC in its decision in Shameena Farooqui v Shahid Khan held that the relief under such provisions of the Domestic Violence Act needs to be acted on in a timely manner and that if there were questions of law and fact that need to be determined in order for proper adjudication of maintenance, the same needs to be done without causing inordinate delay to the petitioner that might be in a vulnerable situation.

This decision was again reflected in R. Sanjeevi v Pushpalatha in the Madras HC where despite aa running dispute regarding concealment of fact in adjudication for interim maintenance, the MM passed an order for maintenance anyway.

These cases demonstrate that getting interim maintenance is very easy and that the right, even if it is not directly provided in the act. This should, by all means, be a good thing, this should by all accounts, allow for more easy filings, but that is not the case. More often than not, at the lower court level, the discussion surrounding an application for interim maintenance is overtaken by a discussion about the petitioners’ ability to maintain themselves, and time and time again High Court have had to step in and reiterate that self-sufficiency has never been a direct factor in determining maintenance in the statute. In the case of Bhuwan Mohan Singh v Meena (2915) 6 SCC 253 where it was held that while all the grounds for the grant of interim relief asunder Sec. 125 of the CrPC applied to the act, the income and gainful employment status was not one of them. Similarly, the Delhi HC had to clear the air once more, when it rendered a decision that, the mere possession of the petitioner of a degree, or higher education qualification did not automatically imply gainful and self-sufficient employment. Furthermore, it is a common perception in courts to assume that the quantum of maintenance can be lesser of the petitioner herself is earning and able to provide for herself, even when the application is under the act, where the purpose is more punitive than anything else. The case of Rahul S/o Ram Halde v Rashmi demonstrates the essentiality of submitting before a court in a Domestic Violence matter, the status of previous litigation and status thereof. The same has again been reiterated in Suryavanshi. While both these measures make sense from a purely eco-legal standpoint, it is important to note that there is more than meets the eye.

The combined requirement of establishing a prima facie case, with the debate about self-sufficiency, and the obligation to disclose the status of previous and pending litigation: This becomes extremely difficult to convince a judge to make a favourable decision, and in the event that the Judge might be amenable to a decision, these preconditions to granting interim maintenance give the opposite party enough cause to introduce doubt in the mind of the magistrate about eligibility and the genuineness of the petition itself. As the whole act and remedy depend on judicial discretion, it is always an uphill battle to get maintenance, and even when the award is made, the opposite party can always file for review as in Sanjeevi.

Remedies Available

These are the remedies available to the women (wife) against non- payment of interim maintenance:

1. The Bombay High Court considers the matter related to failure to make payment of interim maintenance under the domestic violence can result in the issuance of non-bailable warrant against the person failing to pay such maintenance under the Court order. Wife failed to receive the maintenance awarded by the court if fails to receive should lodge the complaint against the court which has issued such order. The Bombay High Court ruling out the ambiguity in issuing a non-bailable warrant against the husband said that the Judge has complete authority to issue such order under section 28(2) Domestic Violence Act, 2005     Case Law; Sagar Sudhakar Shedge v/s Naina Sagar Shedge.

2. The law Commission report states that if any women under the Domestic Violence Act, 2005 has undergone or is dealing with the pending proceeding fails to receive the alimony/ maintenance should inform the court about such disobedience of the decree of the court, the court on reviving such complaint can charge such person with a fine amounting the twice of such arrears pending to be paid and with not less than six months of rigorous imprisonment. Such a person should commit such an offence if without malice or for a reasonable excuse, then such a person should be considered. Should there be any pending interim maintenance should be passed by the court of justice.

Conclusion

The time-bound treatment of domestic violence matters needs to be reflected in the statute more than in precedent. It is important that there is a proper mechanism or a commity that can ensure the speedy disposal of cases and solve the issue where the women don’t receive the maintenance for several months even after the court passes an order in her favour.

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Domestic Violence

By: admin Domestic Violence 12 Feb 2020

Any act, omission or conduct of harms or injuries which endangers the health and safety of life of an aggrieved person, whether mentally or physically including sexual abuse, physical abuse, financial abuse, verbal and emotional abuse. When one harasses, harms injures the person intending to coerce her or any of her relatives to meet any unlawful demand of any dowry or valuable security or property.

Compensations or Reliefs

Any woman suffering from violence in a domestic relationship can ask for reliefs. The term aggrieved person is the Protection of Women from Domestic Violence Act, 2005. It states that a woman who is or has been, in a domestic relationship with the respondent and is alleged to any act of domestic violence by the respondent is an aggrieved person;

Domestic Relationship is a relationship between people who are or were married to each other, according to any law, custom or religion; or are related to each other by marriage, consanguinity or are related by adoption or are family members living together as a joint family; or, they are or were in an engagement or customer relationship.

The process to get relief from Court:

Woman or any person can inform about the domestic violence to the Protection Officer (PO), Police or the Magistrate as mentioned in Section 4 of Protection of women from Domestic Violence Act, 2005.

  • The Complaint shall be registered in the format of the Domestic Incident Report.
  • DIR is a record of the fact that an incidence of violence has been reported.
  • Copy of DIR to be forwarded by PO to the Magistrate and the police officer in charge of the police station in the jurisdiction.
  • DIR be kept in record for future reference.

An application for reliefs Section 12 under DV Act to Magistrate can be made by:

  1. the woman herself, directly to the court,
  2. Through Protection Officer,
  3. If there is a pending case between a woman and her husband and she can ask for Orders under DV Act in that proceeding itself (S.26).

Jurisdiction

The Metropolitan Court or first class magistrate court within the local limits of which the aggrieved person permanently or temporary resides or carries a business or is employed shall be the competent court. The respondent resides permanently or temporary or carries on business or is employed.

Whenever the cause of action arises, the aggrieved person can ask for relief under the Protection of Women from Domestic Violence Act, 2005 by the below-mentioned sections:

1. Protection Order (Section 18)

2. Residence Order (Section 19)

3. Monetary Relief (Section 20)

4. Custody Order (Section 21)

5. Compensation Order (Section 22)

Protection Orders:

After being heard to the aggrieved person and the respondent, if the Magistrate gets satisfied about the prima facie case of Domestic violence, he/she may pass a protection order in favour of an aggrieved person prohibiting the respondent from doing the following acts:

  • Aiding or abetting in the domestic violence Act, entering the place of employment of the aggrieved person or if the person is a child to visit its school or any other places.
  • Attempt to communicate in any form, including personal, oral or written, electronic or telephonic contact, etc.

Residence Orders:

  1. When the Magistrate is satisfied that domestic violence has taken place, pass a residence order-
  2. Restain, the respondent from seizing or disturbing the peaceful possession of the household, shared
  3. Restraining the respondent and his relatives from entering any portion of the house where the aggrieved person resides.
  4. Directing the respondent to secure the alternate accommodation for the aggrieved person
  5. Under this section, no order shall be made against women.

Relief in Monetary Terms:

The Respondent may be directed by the magistrate to pay relief in monetary terms to the aggrieved person to meet the expenses, and such reliefs include:

  • Medical expenses
  • Loss of earnings
  • Loss caused due to destruction or damage of any property
  • The order of maintenance under section 125 criminal procedure code or any other law.

Custody Orders:

The Magistrate can grant temporary custody of a child to the aggrieved person or the person making an application on behalf of her and specify the arrangements for the visit of such child by the respondent. The Magistrate can refuse the visit of such respondent in such a case if it may be harmful to the child's interest.

Compensation Orders:

The Magistrate may pass an order to direct the respondent to pay compensation to the aggrieved person for injuries, emotional distress, including mental torture caused by the acts of domestic violence committed by the respondent.

Under this Act, any relief may be sought in legal proceedings before a family court, civil court or criminal court. Such relief may be sought along with relief in the suit, or legal proceeding before a civil or criminal court.

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Procedure to File Complain against Domestic Violence

By: Domestic Violence 02 Aug 2019

Women have always struggled against atrocities committed on them. Domestic violence is one of such brutality which is prevalent in every class of the society to the extent that either you are a victim or you may have witnessed this violence. It has become common for women to end up with bruises and broken bones after such incidents in their domestic life. All women need to know that a complaint about Domestic Violence can be filed by any aggrieved woman who has faced such. The wife can file a case against her husband and in-laws, a mother can complain against her son, a girl can complain against an abusive father or brother, a woman can complain against her partner in case of live-in relationship.

Violence is not necessarily just physical; it can be, Emotional, Economical, and Sexual. Ex: Ill-treatment of your children by the father can also constitute domestic violence. 

In the time of crisis, remember the following places where you can file the complaint against domestic violence and seek help.

Nearest Police Station: Approach to the nearest police station to file an FIR (First Information Report). Request to register an FIR. The policemen are duty-bound to do so and cannot refuse.

NOTE: If the police tell you that occurred incident doesn't fall in their jurisdiction then in such case ask them to register a 'ZERO FIR' (an FIR which can be  transferred to the relevant Police Station later.)

Police will note down the description of the incident and ask you to sign it. Check the FIR twice before signing it. Never sign the FIR blindly. It is much better if you take some time before approaching the police and write down all the details by yourself describing the incident on a piece of paper and then hand it over to the police. Thereby avoiding any inconsistency.

If you are not comfortable talking about the abusive incident to a male police officer, you can request to be directed to a women's cell where female police officers assist the victims.

Filing of the Online FIR: Certain states in India provides the facility for filing the online FIR. In case you are a resident of any of such states, then filing an FIR online can be an alternative to visiting an actual police station.

National Commission for Women (NCW): NCW can address complaints relating to issues faced by women. The Complaints may be received orally, written or suo-moto under Section 10 of the NCW Act. The complaints are related to domestic violence, harassment, dowry, torture, desertion, bigamy, rape, cruelty by husband, refusal to register FIR, gender discrimination, and sexual harassment at the workplace.

Fill the required details in the form, after submission of the form, you will be issued a receipt number. After which you will obtain your file number, user id, and password within ten days of the filing of the complaint.

Research shows that 85 per cent of domestic violence victims are female, and only 15 per cent of victims are men. It can happen to anyone if this issue not dealt with. We must stand together and make more stringent laws, which will protect the victims in the correct sense.

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Case Law on Domestic Violence

By: admin Domestic Violence 19 Apr 2019

Case Law: Husband of Delhi air hostess who killed self used to beat me: Former Miss India, The woman has allegedly told the police that Mayank once even chased her with a knife.

Highlights:

I'm ending my life, Anissia texted husband Mayank at 4:12 pm.

Anissia jumped off a building terrace at around 4:30 pm on July 13, 2018.

Mayank and his family have been asked to join the probe.

Mayank Singhvi, the software engineer husband of Anissia Batra, who was employed as an air hostess with the German airline, Lufthansa, committed suicide, she might have had a series of domestic assault, as per the report submitted by the Delhi Police in a court.

The Delhi Police have seized a BMW and a diamond ring on July 16, 2018, from the house of the air hostess Anissia Batra, who allegedly committed suicide on July 13, 2018.  Both the car and the ring were given by Anissa's family to her husband. The police have also confiscated mobile phones of the couple amid the family's allegation that she was a victim of domestic violence.

The report says that a woman, who once a winner of the Miss India beauty pageant, had come forward and claimed that she was once engaged with Mayank Singhvi and that he regularly assaulted her during the time they were together. Anissia Batra had allegedly told the police that Mayank once had chased her with a knife, after which she broke off her engagement.

Domestic Assault

After Anissia killed herself, soon her family accused Mayank Singhvi and his parents of being responsible for the air hostess's death. Anissa's mother said that Mayank was a divorcee but had covered it. “The abuse had begun during the couple’s honeymoon. Mayank beat her up in the room and lobby of the hotel they were staying at. She had to move to safety at a friend’s place and returned to India alone,” alleged Neelam in her complaint to the police. Also, her mother alleged that “Mayank would drink and beat my daughter.” Anissa's family also revealed that around the night before she killed herself, her father had written to the Delhi Police machinery saying, "...if any physical harm is caused to my daughter, Mayank, as well as the in-laws, will be considered responsible." The police didn't react to the letter.

After Mayank Singhvi was arrested on July 24, 2018, Anissa's family released a set of photos which they said were proof that their daughter was a victim of domestic assault. Photos released by Anissia Batra's family. The photos showed bruised limbs.

What Happened on July 13, 2018?

According to the police, Anissia and Mayank got into an argument on July 13, 2018. The couple's neighbour heard a "heated argument" take place. Phone records obtained by the police show that Anissia messaged a friend on Whatsapp at around 2:56 pm that day, which read as: "He [Mayank] has locked me inside the room. Please call the police. Please come if you can. I am locked up..." followed by a message a minute later read as "Finally I got my phone, I am at N 116... I need help.. he [Mayank] is sitting outside guarding my room...," The friend informed her that she could not come right away but told that another friend could reach Anissa's place sooner. But, by 4 pm Anissia had made her mind and at around 4:12 pm, the air hostess sent another WhatsApp message which read as: "I am going to kill myself today because Mayank has driven me to it. He finally let me out but I can't repair what he has done to me."

It is believed that she had messaged Mayank that she was going to end her life. Following her last WhatsApp message to her friend she went to her home's terrace and jumped off.

The police have arrested Mayank Singhvi and the Delhi Police's crime branch is probing the case.

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