Friday 15 December 2023

Under what circumstances the court can pass protection order and residence order under Domestic violence Act?

 18 of Domestic violence Act:- Protection orders.—The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—

(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(dattempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
S 19 of Domestic violence Act:- Residence orders.—(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

Detail discussion

In the context of the Protection of Women from Domestic Violence Act, 2005, "Protection Order" and "Residence Order" are two important legal tools designed to safeguard the rights and safety of women who are victims of domestic violence:

  • Protection Order:

    • A Protection Order, as defined under the Act, is a court order aimed at protecting the aggrieved woman (the woman who has suffered domestic violence) from further acts of violence or harassment by the respondent (the person against whom the complaint is made).

    • The key features of a Protection Order include:

      • It can restrain the respondent from committing acts of domestic violence against the aggrieved woman.

      • It can prevent the respondent from entering certain areas or places where the aggrieved woman resides or works.

      • It may also prohibit the respondent from communicating with the aggrieved woman, her relatives, or other persons.

      • A Protection Order may specify other necessary reliefs and protection measures, such as granting the aggrieved woman exclusive possession of the shared household.

  • Residence Order:

    • A Residence Order, as per the Act, is a court order that deals specifically with the right of the aggrieved woman to reside in the shared household.

    • The key features of a Residence Order include:

      • It grants the aggrieved woman the right to reside in the shared household or a part of it, even if she has no legal ownership or title to the property.

These orders are essential tools for protecting the rights, safety, and well-being of women facing domestic violence. They can provide immediate relief and safeguards, ensuring that the aggrieved woman can live in a safe and secure environment. The exact terms and conditions of Protection Orders and Residence Orders may vary based on the specific circumstances of the case and the court's judgment. Violation of these orders can lead to legal consequences, including criminal penalties, for the respondent.

Under the Protection of Women from Domestic Violence Act, 2005, the court can pass "Protection Orders" and "Residence Orders" in response to specific circumstances of domestic violence and the need for the protection and relief of the aggrieved woman. Here are some specific circumstances that may lead the court to pass these orders:

Protection Order (Section 18 of Domestic violence Act):

  • Physical Abuse: When the aggrieved woman has suffered physical violence or abuse by the respondent, such as beatings, assault, or acts that cause bodily harm.

  • Emotional or Verbal Abuse: In cases where the respondent has subjected the woman to emotional or verbal abuse, including threats, intimidation, or insults that cause mental anguish.

  • Sexual Abuse: If the woman has been a victim of sexual abuse or assault by the respondent, including non-consensual sexual acts.

  • Economic Abuse: When the respondent has controlled or restricted the woman's access to financial resources or has caused financial hardship.

  • Stalking or Harassment: In situations where the woman has been subjected to stalking or persistent harassment by the respondent.

  • Threats or Coercion: If the respondent has used threats or coercion to control the woman's behavior or to intimidate her into compliance.

  • Immediate Threat to Safety: When there is an immediate threat to the physical or mental safety of the woman, necessitating urgent protection.

  • Fears for Safety: If the woman fears for her safety due to the respondent's violent or abusive behavior.

Residence Order (Section 19 of Domestic violence Act):

  • Right to Reside in Shared Household: The woman has the right to reside in the shared household, even if she does not have legal ownership or title to the property, to ensure her safety and protection.

  • Forced Eviction or Denial of Entry: When the woman has been forcibly evicted from the shared household or has been denied entry by the respondent, leading to her displacement.

These orders are designed to protect the aggrieved woman and her children, if applicable, from domestic violence and to ensure their right to a safe and secure living environment. The court considers the facts of each case and the immediate needs of the woman when deciding whether to pass Protection Orders and Residence Orders, and what terms and conditions to attach to them.

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