The relevant law is the THE PROTECTION AGAINST DOMESTIC VIOLENCE ACT
What is Domestic Violence?
Domestic violence includes any of the following acts committed by a person against his spouse, a child of his spouse or another person living under the same roof—
- (a) willfully inflicting, or attempting to inflict, a wound or blow, or threatening to inflict a wound or blow;
- (b) willfully or knowingly placing or attempting to place, or threatening to place, the spouse or the other person in fear of physical injury to himself or to one of his children;
- (c) intimidating, harassing, stalking, ill-treating, insulting, brutality or cruelty;
- (d) compelling the spouse or the other person by force or threat to engage in any conduct or act, sexual or otherwise, from which the spouse or the other person has the right to abstain;
- (e) confining or detaining the spouse or the other person, against his will;
- (f) harming, or threatening to harm, a child of the spouse;
- (g) causing or attempting to cause, or threatening to cause, damage to the spouse’s or the other person’s property;
- (h) depriving, without any reasonable excuse, the spouse of resources which the spouse is entitled to, or of payment for rent in respect of shared residence;
Who is a spouse?
A spouse means a person who—
- (a) is or has been civilly or religiously married to a person of the opposite sex;
- (b) is living or has lived with a person of the opposite sex as husband and wife; or
- (c) whether living together or not with a person of the opposite sex, has a common child with that person;
This implies, that the Act does not apply to same-sex couples / homosexual relationships.
Protection Order against a Spouse
Any person who has been the victim of an act of domestic violence and who reasonably believes that his spouse is likely to commit any further act of domestic violence against him, may apply to the Court for a protection order restraining the respondent spouse from engaging in any conduct which may constitute an act of domestic violence and ordering him to be of good behaviour towards the applicant.
What are the Steps?
- The aggrieved spouse should give a declaration to the police (usually the nearest police station or the next nearest) for Domestic Violence against their spouse.
- The aggrieved spouse should make an application for a Protection Order to the District Court in the District where she/he lives.
- On an application being made for a Protection Order, the Court shall cause notice of the application to be served on the respondent spouse requiring him to appear before the Court on such day as may be specified in the notice (not later than 14 days of the date of the application) to show cause why the order applied for should not be made.
- An application for a Protection Order shall be heard in such manner as the Court thinks fit.
- Where the Court is satisfied that there is a serious risk of harm being caused to the aggrieved spouse before the application may be heard and that the circumstances revealed in the application are such as to warrant the intervention of the Court even before the respondent spouse is heard, the Court may—
(a) issue an interim protection, restraining the respondent spouse from engaging in any conduct which may constitute an act of domestic violence and ordering him to be of good behaviour towards his spouse; and
(b) order the Commissioner of Police to provide police protection to the aggrieved spouse until such time as the interim order is served on the respondent spouse or for such time as the particular circumstances of the case may justify.
6. Where an Interim Protection Order (IPO) is issued, the District Clerk shall immediately take steps to have a copy of the Order served on the respondent spouse requiring him to appear before the Court on such day as may be specified in the Order to show cause why it should not be confirmed, varied or discharged. An IPO shall, unless the Court directs otherwise remain in force until such time as the Court pronounces itself on the application for the Protection Order.
7. The hearing for a Protection Order shall be held in camera.
What are the factors taken into consideration in granting a Protection Order?
In determining an application for a protection order, the Court shall have regard to the following—
- (a) the need to ensure that the aggrieved spouse is protected from domestic violence;
- (b) the welfare of any child affected, or likely to be affected, by the respondent spouse’s conduct;
- (c) the accommodation needs of the aggrieved spouse, his children as well as those of the respondent spouse and his children;
- (d) any hardship that may be caused to the respondent spouse or to any of his children as a result of the making of the order; and
- (e) any other matter which the Court may consider relevant.
What can be included in the Order?
Where a protection order is made, the Court may further—
(a) prohibit the respondent spouse from being on premises on which the aggrieved spouse resides or works;
(b) prohibit the respondent spouse from being on premises specified in the order, being premises frequented by the aggrieved spouse;
(c) prohibit the respondent spouse from approaching within a specified distance of the aggrieved spouse;
(d) prohibit the respondent spouse from contacting, harassing, threatening or intimidating the aggrieved spouse;
(e) prohibit the respondent spouse from damaging property of the aggrieved spouse;
(f) prohibit the respondent spouse from causing or attempting to cause another person to engage in conduct referred to in paragraphs (d) and (e);
(g) specify the conditions on which the respondent spouse may-
(i) be on premises on which the aggrieved spouse resides, works or which he frequents; or
(ii) approach or contact the aggrieved spouse or a child of the aggrieved spouse;
(h) proprio motu, make a provisional occupation or tenancy order for such time as it thinks fit, where it is satisfied that such an order, although not applied for, is essential for the effective protection of the aggrieved person.
For how long is a Protection Order valid?
A protection shall remain in force for such period, not exceeding 24 months, as the Court may specify.
Offences
(1) Any person who wilfully fails to comply with any interim order, protection order, occupation order, tenancy order or ancillary order made under this Act shall commit an offence and shall, on conviction, be liable –
- (a) on a first conviction, to a fine not exceeding 50,000 rupees and to – imprisonment for a term not exceeding one year;
- (b) on a second conviction, to a fine not exceeding 100,000 rupees and to imprisonment for a term not exceeding 2 years;
- (c) on a third or subsequent conviction, to imprisonment for a term not exceeding 5 years.
(2) Any person who does an act of domestic violence shall commit an offence and shall, on conviction, be liable —
(a) on a first conviction, to a fine not exceeding 50,000 rupees;
- (b) on a second conviction, to a fine not exceeding 100,000 rupees and to imprisonment for a term not exceeding 2 years;
- (c) on a third or subsequent conviction, to imprisonment for a term not exceeding 5 years.
Registry
The Registry of the Court shall maintain a record of all application filed pursuant to this Act and of all Protection Orders issued by the Court.
The record shall contain –
(a) the names, address, age, sex and relationship of the parties
(b) the domestic violence alleged, whether it involved any weapon or resulted in personal injuries and whether the injuries inflicted required medical treatment;
(c) the effective date and terms of each order issued; and
(d) the address of the property concerned by the order and, where applicable, the name of the landlord.
COVID-19 UPDATE
If you are a victim of domestic violence during this COVID-19 sanitary lockdown period, you can still apply and obtain a Protection Order. Kindly get in touch for more information.
Content in this article is for educational and information purposes only and does not constitute legal advice.
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