Source: Kerela High Court

Why in News?

The Kerala High Court has observed that a woman living in live-in relationship can also file domestic violence cases under the Protection of Women from Domestic Violence Act, 2005 (DV Act) in the matter of Vineet Ganesh v. Priyanka Vasan.

Background

• An appeal was filed by the man who wanted to transfer a case initiated against him under Section 12 of the DV Act and pending before a Magistrate, to a family court.
• The contention of the man was that since the proceedings under Section 12 of the DV Act are civil in nature therefore, there is no bar in transferring the case to the family court.
• High Court noted that if the person against whom the woman files a case is allowed to get it transferred to a family court or civil court, it would be to her detriment.

Court’s Observation

• The Court held that an application under Section 12 of the DV Act cannot be transferred from a Magistrate to a Family Court.
• A division bench comprising of Justices Anil K Narendran and PG Ajithkumar held that a female victim of violence of any kind at the hands of a man with whom she was in a domestic relationship can file a case under the DV Act.

Domestic Violence

• Domestic violence includes any form of violence suffered by a person from a biological relative, but it typically relates to violence suffered by a woman by male members of her family or relatives.
• It includes not only physical abuse but emotional, economic, sexual abuse as well.
• According to the National Crime Records Bureau (NCRB), a total of 43,414 cases of crime against women were registered during 2021, showing an increase of 22.9% over 2020 (35,331 cases), majority of cases (33.0%) were registered under ‘Cruelty by Husband or his Relatives’.
• Prior to 2005 the Indian Law aided females facing Domestic Violence under Section 498A of the Indian Penal Code, 1860 (IPC).
• To further curb this menace, the DV Act was enacted in 2005 that came into force on 26-10-2006.
• Section 3 of DV Act defines Domestic Violence as under:

Section 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, house hold 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 house hold 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 determine 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.

Section 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.

Legislative Aspect of Live in Relationships in India

• DV Act, 2005
  • It has been specifically mentioned under Section 2(f) of the act that it not only takes under its purview married couples but also those relationships which are in the nature of marriage giving way to its application to Live-in-Relationships.
  • Section 2 - Definitions (f) Domestic Relationship means 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.