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J a n u a r y 2 0 1 4 t o N o v e m b e r 2 0 1 4
2014
The Faculty
Dr. Jaya Sagade Mr. Anand Pawar
Dr. Manisha Gupte Smt. Vidya Bal
Ad.Audrey D'mello Ad.Rama Sarode Ad.Nausheen Yousuf
Ad.Assunta Pardhe Dr. Shruti Tambe
Workshops on
Domestic Violence for
Judicial Officers A consolidated report of seven district-level
workshops in Maharashtra
Women’s Studies Centre, ILS Law College, Pune, and Mahila Sarvangeen Utkarsha Mandal, Pune
supported by SWISSAID India, Pune.
1
ACKNOWLEDGMENTS
Women’s Studies Centre, ILS Law College, Pune, takes great pleasure in
presenting this consolidated report of seven one-day workshops for judicial officers
on the subject of ‘Domestic Violence’ that were conducted in seven districts of
Maharashtra.
These workshops would not have been possible without the support of the Hon’ble
Chief Justice Shri Mohit Shah, High Court of Bombay, who granted us permission
to hold them. We express our sincere thanks to him. We are also extremely grateful
to Hon’ble Justice Smt. Roshan Dalvi, Hon’ble Justice Smt. Mridula Bhatkar and
Hon’ble Justice Smt. Shalini Phansalkar Joshi for their encouragement and support.
We also thank the Registrar General Shri. C.V. Bhadang and Registrar Inspection–I
Shri. A.P. Kurhekar, High Court of Bombay for their cooperation in the process of
seeking permission and in connecting us with the Principal District Judges of the
selected seven districts.
Our deep gratitude to the Principal District and Session Judges Shri. V.V. Borikar
and Shri S.C.Khati, Beed; Shri. V.D. Dongre, Latur; Shri. M.D. Keskar, Ratnagiri;
Shri. S.M. Modak, Raigad; and Shri. S.K. Kotwal, Sindhudurg; and Shri K.L.
Wadne, Principal District Judge, Pune, for their cooperation in organizing
workshops in the respective districts. Our heart-felt thanks to all concerned support
staff of the respective courts for excellent logistic arrangements; and we are truly
overwhelmed by the generous hospitality showered on us during our visits.
Our deepest appreciation to all the resource persons for making the workshops
lively and interactive – Mr. Anand Pawar, Smt. Vidya Bal, Dr. Manisha Gupte, and
Dr. Shruti Tambe for facilitating the session on gender, gender-based violence and
domestic violence; and Adv. Audrey D’mello, Adv. Nausheen Yousuf, Adv.
Assunta Pardhe, and Adv. Rama Sarode for their valuable contribution in the
session on the Protection of Women from Domestic Violence Act, 2005
(PWDVA).
Our special thanks to all participants of the workshops – judicial officers,
protection officers, NGO representatives, and law professionals for their active
involvement and for sharing innovative ideas and making useful recommendations
for better implementation of PWDVA.
We express our deepest gratitude to Mahila Sarvangeen Utkarsha Mandal
(MASUM), Pune, for partnering with us in this endeavor and SWISSAID India for
its valuable guidance and financial support for organizing these workshops.
2
We appreciate all time support and encouragement from Principal Vaijayanti Joshi
in conducting the project and thank her sincerely. We also thank the support staff of
ILS Law College for extending all assistance in organizing the workshops.
We must say that this endeavor was a great learning experience for us and we thank
one and all who contributed in making these workshops a success.
February 2015
Dr. Jaya Sagade
Director
Women’s Studies Centre,
ILS Law College, Pune
Ms. Prasanna Invally
Programme Coordinator
Women’s Studies Centre,
ILS Law College, Pune
3
WORKSHOPS ON DOMESTIC VIOLENCE FOR JUDICIAL OFFICERS
A consolidated report of seven district-level workshops
Contents BACKGROUND ........................................................................................................................................ 4
THE SESSIONS AND SCHEDULE ............................................................................................................... 6
HIGHLIGHTS OF SESSION 1: .................................................................................................................... 7
Gender, Gender-Based Violence (GBV) and Domestic Violence (DV); its manifestations and impact
on women .......................................................................................................................................... 7
HIGHLIGHTS OF SESSION 2: .................................................................................................................... 9
Role of the judiciary in implementing PWDVA: Issues in implementation of PWDVA and
suggestions ......................................................................................................................................... 9
1) Implementation of Section 5: Duties of police officers, service providers and Magistrates . 9
2) Implementation of Section 12(1): ........................................................................................ 11
3) Implementation of section 9 (b), rule 5: .............................................................................. 12
4) Implementation of section 23: Interim and ex-parte orders ............................................... 13
5) Implementation of Section 13 and Rule 12: Service of notice ............................................. 16
6) Hearings, court proceedings ................................................................................................ 19
7) Protection orders and other reliefs: ..................................................................................... 24
8) Implementation of orders .................................................................................................... 26
9) Breach of orders: Section 31, 32 .......................................................................................... 28
10) Appeal: Section 29 ............................................................................................................ 29
11) Coordination ..................................................................................................................... 29
12) Miscellaneous ................................................................................................................... 30
BRIEF ON CASE LAW ............................................................................................................................. 31
SUMMARY OF FEEDBACK ..................................................................................................................... 31
PRESS COVERAGE ................................................................................................................................. 34
4
BACKGROUND The Protection of Women from Domestic Violence Act, 2005(PWDVA) is the response of
the state to protect human rights of women within the family or the home. It has been
formulated within the context of international human rights framework for guaranteeing
rights under articles 14, 15 and 21 of the Indian Constitution. It is a civil law that aims at
providing speedy remedies through protection and relief orders, and mobilising a multi-
agency support mechanism. The judiciary plays a crucial role in driving the spirit of this
gender-just law. Gender-sensitive interpretation of its provisions is therefore a pre-requisite
to achieve its aims.
Thus, with the purpose of enhancing a gender-sensitive understanding of PWDVA and to
promote effective use of its provisions, Women’s Studies Centre, ILS Law College, Pune,
(WSC) approached the Hon’able Chief Justice of Bombay High Court, Justice Shri. Mohit
Shah with a request to grant permission to
conduct workshops for the Judicial Officers
who hear the cases under the PWDVA. He
immediately granted permission for conducting
the workshops in the districts of Beed, Latur,
Sindhudurg, Raigad, Ratnagiri, and Pune. In
collaboration with Mahila Sarvangeen Utkarsha
Mandal, Pune (MASUM), and with financial
support and encouragement of SwissAid India,
WSC conducted seven such workshops. Other
stakeholders such as lawyers, protection officers, counsellors, and NGO representatives were
also invited.
The table below provides details on location, schedule, and number of participants:
Sr
no
Location Date of
workshop
No. of Judicial
officers*
No. of other
stake holders
Total No. of
Participants
1 Ratnagiri
11th
Jan 2014 16 19 35
2 Beed
16th
Feb 2014 31 11 42
3 Alibaug,
Raigad
8th
Mar 2014 22 13 35
4 Oras,
Sindhudurg
6th
Apr 2014 12 15 27
5 Latur
26th
Apr 2014 33 10 43
6
Pune
17th
Aug 014 44
11
55
7
Pune 2nd
Nov 2014 19 10 29
TOTAL 177 89 266
5
Judicial officers who participated
included the Principal District &
Sessions Judges, Civil Judges (S.D),
Civil Judges (J.D), Chief Judicial
Magistrates, Additional Chief Judicial
Magistrates, Judicial Magistrates First
Class, and Joint Civil Judges from the
respective districts
The objectives of these workshops were:
To create an understanding of domestic violence in the context of gender-based
violence and discrimination against women
To develop better clarity on the role that judges can play in the effective
implementation of the PWDVA
To share concerns and difficulties faced by various stake holders such as Protection
Officers, Service Providers etc. in making effective use of the PWDVA, and suggest
remedies.
Each workshop addressed the following topics:
Gender, Gender-based violence and domestic violence: its manifestations and impact
on women
Role of the judiciary in implementation of the PWDVA
Response from the higher judiciary to the Protection of Women from Domestic
Violence Act, 2005
Difficulties faced in implementation of the PWDVA – an interface with lawyers,
service providers, protection officers, NGO members.
Reading material was prepared and provided during the workshops. It included Protocols
under PWDVA for judicial officers prepared by the Women’s Studies Centre; excerpts from
the Book ‘Charkabhed’ authored by Dr. Manisha Gupte and Ms. Archana More on cycle of
violence; academic and research articles; chapters from Handbook on Law of Domestic
Violence (2007) written by Lawyers Collective; and Soft copy of Case Law which included
judgments of the Supreme Court, Bombay High Court, and as well as other High Courts on a
CD.
The workshops were well received. Participants deliberated upon the proactive and
innovative use of provisions and suggested several ideas on practices for better
implementation of the PWDVA.
A written feedback from the participants was taken at the end of every workshop.
6
THE SESSIONS AND SCHEDULE Each workshop of 7 hour duration consisted of two broad sessions that resource persons
facilitated.
Session one of duration 2 ½ hours addressed
issues of Gender, Gender-based violence (GBV)
and Domestic Violence (DV); its manifestations
and impact on women. The objective of this
session was to build a gender perspective and
understand violence in the context of power and
control relations within the patriarchal system.
Participants were encouraged to reflect on their
own experiences and their position on gender and
DV. References were made to research findings
on attitudes of people towards DV. Stereotypical understanding of gender was challenged
and debated. Audio-visual clippings were also shown and the sessions were made interactive.
Session two focused on the provisions of PWDVA, and occupied the rest of the day.
Participants discussed and debated on the various provisions and their application to cases
filed under the PWDVA. New ideas, opinions, challenges and suggestions pertaining to
interpretation and use of powers conferred on them under the PWDVA were discussed, in the
light of gender-sensitive understanding. The
purpose of such discussion was to bring clarity
about the role of the judicial officers in
implementing the PWDVA more effectively. The
facilitators also provided information on judgments
of the Supreme Court and Bombay High Court.
Stakeholders such as lawyers, service providers,
protection officers, NGO members etc. who were
present expressed the difficulties they face. In
response several suggestions were made, one of
which that repeatedly emerged was on improving coordination between all the stakeholders.
Every workshop began with an introduction for explaining the purpose of the workshops and
an address by a senior Judicial Officer to set the tone. It concluded with a feedback that every
participant gave in writing (in a given format); the response of which was to be used to
improve the quality of the workshops as they progressed.
The key highlights of the seven workshops are narrated in this report.
7
HIGHLIGHTS OF SESSION 1:
Gender, Gender-Based Violence (GBV) and Domestic Violence (DV); its
manifestations and impact on women This session laid the foundation for every workshop.
Concept of gender, status of women in the current socio-cultural context, power – control
exercised in patriarchy, gender-based violence and domestic violence were the key topics that
were deliberated upon.
The faculty for this session were Mr. Anand Pawar (gender trainer and women’s rights
activist) who facilitated four out of seven workshops; and Smt. Vidya Bal (eminent writer
and feminist), Dr. Manisha Gupte (human rights and gender trainer, and activist), Dr. Ramesh
Awasthi (human rights and gender trainer, and activist), Ms Prasanna Invally (Women’s
rights activist) and Dr. Shruti Tambe (Professor of Sociology and women’s rights activist)
facilitated the session in the other three workshops.
They encouraged the participants to revisit and reflect on their own the understanding of
gender, equality and women’s empowerment. For example, Mr. Anand Pawar, introduced the
concept of ‘de-schooling’ by challenging set ideas and understanding about ‘equality’ and
‘gender’ that every individual is socialized with. Cautioning the participants that ‘symbolic’
examples are used to argue that women of today are ‘empowered’ and that ‘gender equality’
prevails, he explained with examples that gender attitudes and deep-rooted.
“Indira Gandhi, Kiran Bedi, Kalpana Chawla have scaled new heights!
50% reservation, rise in women’s literacy, new laws for women……….
Does this mean there is gender equality and women’s empowerment???”
Explaining the ‘GEM’ (Gender Equal Men) scale that extends from a complete denial of
prevalence of violence – to - justification for violence – to - complete acceptance that
violence is not tolerable, he appealed to each participant to introspect and locate oneself on it.
He emphasized that the culture of silence prevails and therefore fails to eliminate DV.
Gender, as being a social and cultural construct
that changes with time, was brought out through
exercises and discussions. For example, exercise
of putting gender attributes into two boxes drawn
on the board – one for ‘men’ and other for
‘women’ helped participants in understanding
the difference between ‘gender’ and ‘sex’. It
clearly brought out the prevalence of gender
stereotyping in the minds of each one, in which
men and women are expected and pressurized
into playing pre-determined roles defined by patriarchy.
All facilitators, with relevant examples, explained that patriarchy is not just about male
domination, but that it is a system of power and control that is established, exercised,
8
maintained and nurtured with the active participation of men as well as women. Smt. Vidya
Bal, in her session gave several examples of how patriarchy exercises control over women’s
labour, resources, mobility, body, sexuality and reproductive capacity, and where violence is
used by the powerful (men) to control the powerless (women). Referring to the Manusmriti
Dr. Shruti Tambe emphasized on cultural factors that create the power and control system in
the context of gender as well as caste. Violence as a tool used to maintain the status quo was
addressed as being root cause of vulnerability of women.
For better clarity Dr. Gupte provided the formula:
‘Gender’ = ‘Biological Sex’ (+ / -) Social Value
‘Patriarchy’ comes with ‘theorems’ and ‘riders’
– and this decides which person, of which gender, caste, class or religion is more powerful
than the other and who is more vulnerable.
Impactful documentaries on women’s experiences
with DV and Ms Kamala Bhasin’s television
interview with the actor Amir Khan (in the
programme ‘Satyameva Jayate’) were shown. The
aim was to sensitize the participants on the impact
that DV has on women, children and families,
reflect on the mind sets of women and men, and
relate the observations on GBV and DV to the
system of patriarchy and the power-control relationship.
The theory of ‘Cycle of violence’ - that occurs in an intimate violent relationship was also
referred to in this session. Ms Prasanna Invally facilitated this part of the session emphasizing
the role the judiciary can play in breaking this cycle.
Appealing to judicial officers, facilitators emphasized the need to lend a sensitive ear and
‘listen’ to women complainants, and provide her an opportunity to speak and provide the
space for negotiating a non-violent relationship and a life free of domestic violence.
“Women are taught to remain silent; they do not even find the vocabulary to
verbalise. Hence it is important for all of us working on issues of violence to not
just ‘hear’ what the woman is saying but to ‘listen’ and ‘read between the lines’.
One must remember that she is ridiculed and blamed for bringing private affairs
out of the house into public, and hence the need for sensitive ‘listening’.”
Several myths such as - ‘women are women’s enemies’, ‘domestic violence occurs because
of alcoholic husbands’ etc. were dealt with. Addressing questions that the Judicial Officers
asked, such as – ‘why men enjoy more privileges’, ‘why patriarchy exists across the globe’,
facilitators explained Fredrick Engel’s theory on ‘Origins of Family, Private Property and
State’.
9
HIGHLIGHTS OF SESSION 2:
Role of the judiciary in implementing PWDVA: Issues in implementation of
PWDVA and suggestions
This session aimed at understanding the PWDVA as a ‘beneficial legislation’ and
appreciating the gender-sensitive use of its provisions. Roles of the judiciary and other
stakeholders as prescribed in law and in practice were discussed. Issues pertaining to
interpretation of law, the procedures adopted, resources available for implementation and
passing of orders were raised and debated. As a result, pertinent suggestions emerged, and
have been recorded in this report.
Dr. Jaya Sagade, a feminist, faculty and Vice-Principal of ILS Law College, and Director of
its Women’s Studies Centre, was the key faculty for this session in six workshops out of
seven. Ms Audrey D’mello (Advocate and Programme Director at NGO Majlis) and Ms
Nausheen Yousuf (Advocate and Programme Manager at NGO Majlis) were the key faculty
for last workshop. Ms Assunta Pardhe (Advocate, Activist and Director of Chetna Mahila
Vikas Kendra, Pune) and Ms Rama Sarode (Advocate, activist who is leading NGO Sahayog,
Pune), shared their experiences in working with cases of DV in two workshops. This
generated considerable debate and discussions.
The deliberations that took place and the suggestions that Judicial officers, other stakeholders
and facilitators made in the seven workshops have been consolidated and presented in this
part of the report.
1) Implementation of Section 5: Duties of police officers, service
providers and Magistrates
Provision:
Section 5: A police officer, Protection Officer, service provider or Magistrate who has
received a complaint of domestic violence or is otherwise present at the place of an incident
of domestic violence or when an incident of domestic violence is reported to him, shall
inform the aggrieved person -
(a) Of her right to make an application for obtaining a relief by way of a protection
order, an order for monetary relief, a custody order, a residence order, a
compensation or der or more than one such order under this Act;
(b) Of the availability of services of service providers;
(c) Of the availability of services of the Protection officers
(d) Of her right to free legal services under the Legal Services Authorities Act, 1987;
(e) Of her right to file a complaint under section 498-A of the Indian Penal Code (45 of
1860), wherever relevant
PWDVA is the only Act that puts the responsibility on the Magistrate to explain to a woman
the rights under the Act.
10
Issue:
Section 5 is not implemented because:
a. In practice, Magistrates do not find any opportunity of informing the woman about
her rights as per section 5. It has been the general experience of the courts that no
woman has ever approached the court directly with a complaint of domestic violence.
Only in one case did the magistrate himself proactively reach out to a woman who
was sitting in the court premises after court hours and provided her the information.
b. Judicial officers fear that if such information is given to a woman, and if her case
comes to the same court, the respondent may hold the court as being ‘biased’, and this
can tarnish his/her reputation.
Suggestions:
Suggestions for Effective Implementation:
a. understand that providing information does not mean giving advice; and assert that by
providing information she/he is performing the ‘duty’ laid down in section 5
b. Information as per section 5 of PWDVA can be given in situations where a woman
approaches the court for other family disputes. Eg. if a woman has filed multiple cases or
if she has filed in case u/s 498A IPC, the court can inform her of PWDVA.
c. if the Magistrate is hard-pressed with time, she/he may appoint an amicus curie that can
do this task or refer her to the Legal Aid ServicesAuthority
d. Magistrates may come forth to address legal literacy camps so that fear about courts and
judges in the minds of women is removed, and information on rights under PWDVA
provided
Administrative Suggestions:
A notice/ poster be put up on the notice boards outside the court rooms in Marathi that
informs about rights of a woman under PWDVA and about direct access to the Magistrate.
Such material may be prepared by Legal Services Authority (LSA) as per its mandate.
11
2) Implementation of Section 12(1):
Provision:
Section 12: Application to Magistrate:-
1) An aggrieved person or a Protection Officer or any other person on the 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 incidence report received by him from the protection officer
Issue:
Whether court should accept applications made ‘on behalf’ of the aggrieved person in
absence of her written consent
Suggestions:
Suggestions for Effective Implementation:
a. If a woman who may be unfit physically or mentally e.g in unconscious state or trauma
and not in a position to give consent, the application if made by the Protection Officer or
Service Provider or any other person, may be accepted by the court as having done ‘in
good faith’.
Explanation: It was clear that ‘on behalf’, has to include her consent. The judicial
officers expressed that the spirit of the Act should be kept in mind in situations of
emergency, when the woman is physically or mentally unfit (traumatized,
unconscious etc.) to give consent. The technicality need not be adhered to.
Even an ad-interim order of protection can be immediately passed along with
necessary reliefs.
b. Often in emergency situations, cases get registered as medico-legal cases in which FIR is
mandatorily filed. Taking cognizance of this the Magistrate can consider application
under section 12 filed by any other person on her behalf
even if her consent in writing is absent. However, for
ensuring protection and safety of the woman the
Protection Officer’s role becomes crucial, and the
Magistrate may call upon her/him for necessary action.
c. Since the nature of order in such cases is of ‘interim’
nature, passing of such an order would not cause harm.
On the contrary, it would be indicative of a gender-
sensitive attitude that the PWDVA calls for, and a best
practice. Hence Magistrates should not hesitate to grant
interim or ad-interim orders on the basis of the affidavit
filed on her behalf.
Reference to the Bombay High Court judgment, Manoj Harikisanji Changani (2012)
MANU/MH/0087/2012 was made to emphasize that DIR along with the Application under
section 12 is not mandatory, but discretionary. Also Application as per prescribed in Form II
is also not mandatory.
12
3) Implementation of section 9 (b), rule 5:
Provision:
Section 9: Duties and Functions of Protection Officer:
(b) To make a domestic incidence report to the Magistrate, in such form and in such manner
as may be prescribed, upon receipt of a complaint of domestic violence and forward copies
thereof to the police officer in charge of the police station within the local limits of whose
jurisdiction domestic violence is alleged to have been committed and to the service providers
in that area.
Rule 5: Upon receipt of a complaint of domestic violence the Protection Officer shall
prepare a domestic incident report in Form I and submit the same to the Magistrate and
forward copies thereof to the Police Officer in charge of the police station within the local
limits of whose jurisdiction domestic violence is alleged to have been committed and to the
service providers in that area.
Issues:
a. Pertaining to DIR not accompanied by application under section 12:
i. Such DIRs are not submitted to the court by POs or are not accepted by the
courts unless accompanied by application under section 12.
ii. Also, the court does not know what to do with such DIRs
iii. Therefore the purpose for which DIR is filled/prepared is not served
b. Mistaken expectations of Magistrates from POs regarding DIR: Some Magistrates
expected POs to investigate before recording DIRs, and not go by the version of the
aggrieved woman only.
c. Consider DIRs as being mandatory for every application filed: In some courts, as a
blanket rule, the court calls upon the Protection Officer (in some courts) to prepare
the DIR in every application it receives. This causes delay and at times is risky for the
aggrieved woman.
Suggestions:
All stakeholders need to recognize the relevance and importance of this provision in the
PWDVA and the Rule
Suggestions for Effective Implementation:
a. Suggestions pertaining to DIRs not accompanied by application under section 12
i. DIRs should be submitted by POs and accepted by courts regardless of whether
an application under section 12 is made or not.
ii. On receipt of such DIR the court should maintain the record of such DIRs
iii. In future if the same woman approaches the PO or files an application under
Section 12 before the Magistrate, the court may consider such previous DR.
b. Mistaken expectations on role of PO in filing DIRs:
The Magistrate should take note that the Protection Officer is not permitted by law to
conduct any sort of inquiry or home visit while preparing the DIR except in an
emergency situation (See Section 4). The role of the PO is to help her write her
13
complaint in the form of the DIR, which she approves through her signature, (along with
providing her other assistance as provided in section 9, section 5, rule 8 and rule 10).
Explanation: Section 9 read with Rule 10 of the Act clearly states that only if
the Court directs the PO in writing for making a home visit to the shared
household, would she/he do it. The purpose may be for preliminary enquiry in
if application for ex-parte orders has been made or for making inquiry
pertaining to emoluments, assets, bank accounts or other documents, and such
other reasons specified in the rule.
c. DIR with every application:
Courts should not make DIR mandatory if the woman has filed an application under
Section 12 through a private lawyer1. Directing the PO to fill the DIR even in such cases
may pose risk to her because it may break confidentiality that is required in the initial
stages of the case when there is no protection order; or it may cause delay. This practice
causes delay, because the woman who has already approached the court through the
lawyer may refuse to give any information to the PO without consulting her lawyer.
Often approximation of dates and time of incident is penned in the application by the
lawyer based on her version; and she may not be in a position to reiterate the same to the
PO, in which case it becomes a discrepancy that the PO will have to probe.
Administrative Suggestions:
A Management Information System for storing the data base of all DIRs submitted by
the PO and no application is filed under section 12 may be developed and used so that it
can be easily tracked and made available if required in future.
4) Implementation of section 23: Interim and ex-parte orders
Provisions:
Section 23: Power to grant interim and ex parte orders.—
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order
as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent
is committing, or has committed an act of domestic violence or that there is a likelihood that
the respondent may commit an act of domestic violence, he may grant an ex parte order on
the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under
section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the
respondent.
Issues:
a. Delay and/or hesitation in passing of interim orders
b. Magistrates do not feel the need for passing interim orders because the hearing
anyway has to be completed within 60 days.
c. Ex-parte interim order is difficult to execute
1 Judgment of Bombay High Court: Nandkishor Vinchurkar (2009): Report of the Protection Officer is held not
to be mandatorily required to grant interim relief. MANU/MH/0957/2009
14
d. Orders restraining the respondent from entering the shared household are difficult at
the interim stage especially if he owns the house.
e. If respondent goes into appeal for stay on interim orders it cause delays in granting
the final order, and hence hesitation in passing interim orders
f. Lack of clarity of procedure to be followed in emergency situations where woman is
not in a position to give/ sign an affidavit for interim/ ex-parte interim orders
Suggestions:
Suggestions for Effective Implementation:
a. Courts should not delay/ hesitate to pass interim orders and/ or ex parte interim orders.
Its role is to minimize the scope of violence and any delay would defeat the very spirit of
the PWDVA.
It should be remembered that
• Affidavit is enough to pass an interim order and there is no need of a separate
application2.
• Framing of issues is not required for interim orders.
• Interim orders are temporary and which can be altered later on merits of the
case.
• Interim order will help stop the continuity of violence and is therefore an
important relief to the aggrieved woman.
• Interim orders would help the women to get the space for negotiation
• Interim orders should be passed expeditiously after the service of notice [Rule
12 (3) Adjournments should be discouraged at least till the interim orders are
passed
• If the notice is duly served and the Respondent fails to appear or file his say, the
Magistrate may pass an ex-parte order on the basis of the affidavit.
b. Ad-interim orders too may be passed if prima-facie the case reveals severe violence.
2 Judgment of Bombay High Court: Vishal Damodar Patil (2009): It has been held that an interim relief can be
grantedwithout a separate interim application moved. MANU/MH/1323/2008
15
Explanation: Where there is urgency or grave danger to the woman, she can press
for ad-interim reliefs. These reliefs may be granted by the court even before the
respondent is served notice and appears in court, or soon after the notice is served
but before the written say is filed.
c. Ad-Interim orders may be passed to address the emergency situation.
Urgency is felt in the following situations:
• Where the risk due to DV is high.
Explanation: Merits of a case do not form the basis for Ad-interim orders. The
disputed facts may not have been examined or even evidence may not be
available. But if the case indicates risk of occurrence or recurrence of domestic
violence the court has powers to pass interim orders –as per the urgency. The
child may also be at risk which may arise out of child’s visit to or time spent
with the respondent (father).
• for restoring the ‘essentials’ that the woman has left behind in the shared
household
Explanation: Often a woman leaves home without taking any of her belongings
– clothes, personal documents and certificates, and jewellery etc. In such
situations she may need those belongings immediately. There may be urgency also
if these are likely to be destroyed by the perpetrator/ respondent. In such situations
interim orders become important.
d. All interim orders should include Protection order , so that in case this interim order is
breached a remedy can be obtained from the court under Section 31
e. An ex-parte interim order that contains a protection order may be issued along with the
notice that is being served on the respondent. This is specially advantageous to women
who are cohabiting with the respondent
f. Copy of interim orders should be sent to the PO, police, and SP (and to both the parties
free of cost) as per section 24, so that the aggrieved woman receives the protection and
relief according to the order.
g. If interim orders are breached and are brought to the notice of the court, the courts
should direct the police to take immediate action and arrest the respondent.
h. Magistrates should not hesitate to pass an interim orders restraining the respondent from
entering his own residence if prima facie the case indicates threat or grave risk to the
woman or children
i. In emergency situations, when the woman is not in a position to file DIR or make an
affidavit as required under sec 23(2) for ad-interim or interim orders, the following may
be done:
i. Any other person on her behalf – it can be a SP or a PO - can file a DIR and
request for an interim protection order - as a matter in ‘special circumstances’.
The court can pass such an order ex-parte.
ii. If the aggrieved woman is rescued (with help of an ad interim protection order
and directions from the court), and if she is conscious and in a stable physical
and mental state, she may be produced before the court within 24 hours. She
may then file an affidavit for interim reliefs that she may require.
16
iii. A police complaint lodged for the purpose of rescue would support the urgency
of the ex-parte ad-interim order
iv. The Protection Officer can be directed to conduct a home visit (rule 10) to
confirm the emergency, based on which a court can decide to pass ex-parte
interim orders
“Interim orders / reliefs have several advantages - it makes an aggrieved women (and
children) feel more secure and positive,
develops trust in the judicial process,
and reduces stress considerably.
Experience has shown that interim
orders also cast pressure on the
respondent for coming to the negotiating
table. The chances of parties arriving at
an amicable settlement either through
counselling or mediation increase; and
in a way reduces the pendency of cases.”
For example, (practical experience shared at the workshop) restraining order has acted
as a strategy for bringing the respondent to the negotiating table and for counselling.
It has brought great relief to the woman who got interim monetary relief and access to
children or their temporary custody.
5) Implementation of Section 13 and Rule 12: Service of notice Provision:
Section13: Service of notice.—
(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the
Protection Officer, who shall get it served by such means as may be prescribed on the respondent,
and on any other person, as directed by the Magistrate within a maximum period of two days or such
further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be
prescribed shall be the proof that such notice was served upon the respondent and on any other
person as directed by the Magistrate unless the contrary is proved.
Rule 12: Means of service of notices
(1) The notice for appearance in respect of the proceedings under the Act shall contain the names of
the person alleged to have committed domestic violence, the nature of domestic violence and such
details which may facilitate the identification of person concerned.
(2) The service of notices shall be made in the following manner, namely:-
(a) The notices in respect of the proceedings under the Act shall be served by the Protection
Officer or any other person directed by him to serve the notice, on behalf of the Protection
Officer, at the address where the respondent is stated to be ordinarily residing in India by the
complainant or aggrieved person or where the respondent is stated to be gainfully employed
by the complainant or aggrieved person, as the case may be.
(b) The notice shall be delivered to any person in charge of such place at the moment and in
case of such delivery not being possible it shall be pasted at a conspicuous place on the
premises.
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(c) For serving the notices under section 13 or any other provision of the Act, the provisions
under Order V of the Civil Procedure Code, 1908 (5 of 1908) or the provisions under
Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may be
adopted.
(d) any order passed for such service of notices shall entail the same consequences, as an
order passed under Order V of the Civil Procedure Code, 1908 or Chapter VI of the Code of
Criminal Procedure, 1973, respectively, depending upon the procedure found efficacious for
making an order for such service under section 13 or any other provision of the Act and in
addition to the procedure prescribed under the Order V or Chapter VI, the court may direct
any other steps necessary with a view to expediting the proceedings to adhere to the time
limit provided in the Act
(3) On statement on the date fixed for appearance of the respondent, or a report of the person
authorized to serve the notices under the Act, that service has been effected appropriate orders shall
be passed by the court on any pending application for interim relief, after hearing the complainant or
the respondent, or both.
(4) When a protection order is passed restraining the respondent from entering the shared household
or the respondent is ordered to stay away or not to contact the petitioner, no action of the aggrieved
person including an invitation by the aggrieved person shall be considered as waiving the restraint
imposed on the respondent, by the order of the court, unless such protection order is duly modified in
accordance with the provisions of sub-section (2) of section 25.
Issues:
Service of notice was identified as a major issue that causes delay in passing orders and in
disposal of DV cases.
Judicial officers expressed:
“Once the notice gets served, then we are in
control of the case, and we can really do
justice”
The PWDVA puts the primary responsibility of
serving notice on the POs.
However, in practice, they face with several
difficulties such as:
a. Delay in receiving notices by POs from the court.
Since the time limit for serving notice is only two days, the date of which is mentioned in
the order for serving notice, it has to be ensured that the PO receives the notice on the
same of its issue. Else, time is lost in getting the dates changed
b. Refusal to accept notice by the respondent as POs do not have identity cardscard Safety
issues – especially to women POs
c. Long distances to travel – improper/ inadequate transport facility
d. Difficulty in serving notices outside the local jurisdiction of the court
e. Difficulty in serving notices outside the state
f. Heavy case load/ insufficient number of POs
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Suggestions:
Suggestions for Effective Implementation:
a. For preventing delays, communication between the Magistrate and PO be enhanced.
Explanation: For any reason - such as wrong address, inability to trace respondent,
or refusal of respondent to accept notice, the PO has not been able to serve the
notice; the reason should be communicated in writing to the court. This would
enable the Magistrate to understand the difficulties of the PO and accordingly take
remedial steps.
b. Two-day period for service of notice is especially advantageous to women who are
cohabiting because the address is clear. If together with notice an ad-interim protection
order is issued, if the case demands so, it is further beneficial.
c. Magistrate may issue directions to the police to assist the PO in serving notice if the PO
finds risk.
d. The Magistrate may establish her/his own procedure for serving notice, using powers
under section 28, especially because the number of POs is less.
Explanation: The judicial officers suggested that as per section 28 (1) procedures
under CrPC, CPC, and those under rule 12 of the Act should be first used, and if this
does not work the Magistrate may think of innovations and use sec 28(2). Order 5
rule 9(3) under CPC does provide for service through fax and e-message. Rules
formulated by Bombay High Court should be followed.
For example:
i. The court can also direct the police to serve notice
ii. The aggrieved woman herself can serve the notice in person or through
RPAD, if Magistrate permits/ directs so. The Magistrate however should not
direct her to handover the notice to the PO or Police Officer. The notice
should be directly sent by the court to PO or Police
iii. Electronic media can become a valid method of sending notices to the
concerned PO or police station or District Collector, directing them to serve
notice on the respondent.
Explanation: For example, if the respondent resides in a place outside the
jurisdiction of the court or the local PO, the court may send the notice to the PO in
the concerned area or the District Collector through email, for serving it on the
respondent. Notice served by email/fax and its printout / acknowledgment can be
considered as adequate proof of notice.
iv. In fact, if the respondent does not appear before the court after the email is
sent, an ex-parte interim order may be passed. If after that he appears before
the court to challenge the order, a physical notice may be served on him then.
v. It would be best for the court to give clear instructions to the Protection
Officer in writing regarding the way in which the notice is to be served,
especially if it is outside the state.
e. Once notice is served and the respondent appears, the service shall be deemed to be
complete. [Rule 12 (3)]
19
Administrative Suggestions:
a. DWCD should issue identity cards to
POs. Experiences have been very
positive where the district collector has
issued such IDs.
b. More POs be appointed (Bombay High
Court, in response to a PIL has directed
the Maharashtra Govt. to appoint 216
POs. Implementation of this directive
needs to be followed up)
c. Email as a means of serving notices
directly to the respondent should be approved by the High Court for speeding up
procedures.
d. For inter-state coordination pertaining to serving notices outside of state, the following
was recommended:
i. A mechanism for inter-state coordination may be worked out through a meeting
of Chief Justices of all states where the PWDVA applies and the exchange should
be from court to court.
ii. One nodal officer may be appointed at the High Court to cater to inter-state
notices and process the same for serving it through respective Protection officers.
iii. Else, every State should appoint a Chief Protection Officer, who would receive
the inter-state notice and forward it to the respective protection officer for
service.
e. Internationally it may be served through the embassy by providing the passport no. of
the respondent. Accordingly such mechanism be set in place.
6) Hearings, court proceedings Provisions:
Following sections of the Act were addressed during the discussion on hearing of cases and
procedures:
Section 12(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.
Section 14(1) Counselling:-
(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent
or the aggrieved person, either singly or jointly, to undergo counselling with any member of
a service provider who possess such qualifications and experience in counseling as may be
prescribed.
Section 26: Relief in other suits and legal proceedings
(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal
proceeding, before a civil court, family court or a criminal court, affecting the aggrieved
person and the respondent whether such proceeding was initiated before or after the
commencement of this Act.
20
(2) Any relief referred to in sub section (1) may be sought for in addition to and along with
any other relief that the aggrieved person may seek in such suit or legal proceeding before a
civil or criminal court.
Section 28.- Procedure.-
(1) Save as otherwise provided in this Act, all
proceedings under sections 12, 18, 19, 20, 21, 22
and 23 and offences under section 31 shall be
governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the
court from laying down its own procedure for
disposal of an application under section 12 or under sub-section (2) of section 23.
Issues:
a. Safety of the aggrieved woman during the period of hearing
b. Evidence of domestic violence not always available
c. Inability to meet timelines as prescribed for disposing an application [section 12(5)]
d. Use of powers under section 28(2) is perceived as a threat, as the Magistrate may be
alleged of being ‘biased’ or having ‘exceeded powers’ and the respondent’s lawyer
may apply for a transfer, or go into appeal.
e. Magistrate do not direct cases for Counselling [section 14]; most cases are sent for
mediation
f. Courts do not have the list of counsellors
g. Multiple cases filed – both criminal and civil – by aggrieved woman or/and
respondent brings unnecessary burden
h. Hearings end after final judgment/ order is passed – there is no follow-up on
implementation of orders
Suggestions:
Suggestions for Effective Implementation:
a. SuggestionsFor ensuring safety during the period of hearing:
i. Use of ‘Safety Plan’ [ Rule 8(1)(iv)]:
The Magistrate may direct the PO or SP for preparing a Safety Plan (as provided in
Form V), based on which appropriate and precise interim protection orders may be
passed for ensuring safety.
Safety Plan given in Form V is an instrument that can help the Court
assess the risk of repetition and escalation of DV, and decide means of safety
through drafting appropriate and precise protection orders and reliefs. Hence
use of safety plans should be encouraged. Protection Officers, Police Officer
or SP who are authorized to prepare the Safety Plan too need training.
The Act provides for multi-sectorial support system and the safety plan
can provide the leads for mobilising this system. The Magistrate can direct the
PO or SP to provide the necessary support.
21
Dr. Sagade shared :
“The Association of American Judges, as a best practice, hold meetings on
safety plans with all stake-holder only to decide the nature of support. The
kinds of orders that are required to be passed are also decided during such
meetings.”
ii. The Magistrate may direct the concerned police station to give protection to
the aggrieved woman and her dependents.
iii. Magistrate may use section 19(3) for directing the respondent to execute a
bond, with or without sureties, for preventing the commission of domestic
violence.
b. Pertaining to evidence and recording it:
i. The court should follow summary procedure as prescribed under Sections
262-264 CrPC and record only the substance of evidence.
ii. The Magistrate can proactively probe into facts, and allow the woman to
speak and the respondent to respond during examination by invoking Sec 165
of The Indian Evidence Act, 1872 and also using section 28 of PWDVA
iii. Cross examination can be brought on record in question-answer form. This
will provide the court an opportunity to ‘read between the lines’ (using the
gender perspective) and pass deserving orders. It is difficult for a woman to
provide evidence about violence as it happens within the 4 walls. (Dr. Sagade
quoted Justice Krishna Iyer’s stand of ‘being on the side of the woman’ if we
want to bring true ‘equality’)
c. Allow the woman to speak: Most judicial magistrates agreed that the woman be
allowed to speak in the court, even if it
means going beyond the points mentioned
in the application/ pleading. It is up to the
magistrate to appreciate the contents of her
deposition for the purpose to coming to a
conclusion.
A judicial officer expressed:
“Such a space itself is empowering. The
Court is a “temple of justice” – a space of
trust and support”
d. Adjournments be avoided – A Magistrate should discourage adjournments if she/he
thinks that they are intended to prolong the case. The Act demands quick remedies
e. The judgment should contain a brief statement of reasons.
f. Compliance hearings be held. Court should proactively conduct such hearings after
passage of the final order in order to ensure implementation, because there is no
22
provision of ‘contempt’. For example, if order is implemented through the PO, the PO
should report back; if orders are given to the police, they too should report back.
Judicial officers debated:
i. whether or not compliance hearings be conducted: One argument was that
“since sec 28 can be used only for the purpose of disposing cases under
section 12 or sec 23 (2), technically, compliance hearing does not fall within
the purview of section 28”
ii. whether powers under sec. 28 can be used to hold such hearings:.
once the final order is passed the case gets disposed and is out of the purview
of the court or whether it continues because the protection order holds until
the woman applies for discharge under section 25.
Opinions differed among the judicial officers. However, they concluded that they
should consider delivering justice as their first responsibility, and therefore
compliance hearings should be held; and sanction for this be given by the High
Court or amending the law
g. Proactive use of powers under section 28(2) of the Act; PWDVA being a
beneficial legislation
i. Keeping in mind that PWDVA is beneficial legislation, it is recommended that
Magistrates lay procedures as they would feel fit. If they get challenged in the
High Court and the outcome is favourable, it would form an important
precedence that would contribute to effective implementation of the Act.
ii. Judicial officers also suggested that
“procedures laid by court under sec 28(2) would receive authenticity if
uniformity across all / many courts is worked out and adopted around
common issues such as service
of notice, implementation of
orders, seeking assistance of
subject experts, etc. A group of
judges may meet on a regular
basis and use similar
procedures (which may be
innovative) for bringing some
uniformity. It is a good idea to
use the flexibility under the
PWDVA so that orders get
implemented”
iii. Using section 28(2), the Magistrate may
inform an aggrieved woman / her lawyer about judicial decisions that
would benefit the woman in realizing her rights
involve subject experts for collecting medical evidence, DNA testing, or
for understanding psychology
seek information from employers about salary etc.
consider family business for determining respondent’s income
summon for required documents from concerned offices
23
h. Regarding Counselling and mediation:
i. Courts should direct the PO to provide a list of Counsellors and other
Service Providers [PO’s duty under Rule 8(10)]
ii. Magistrate should not insist on mediation. Mediators should be in the
vicinity and lawyers practicing in the same court should not be made
mediators (conflict of interest could arise)
iii. Mediation has its own limitations and may not necessarily ensure stopping
of DV. A Mediator Judge quoted
“as the terms of settlement are decided by the parties and if they are in
agreement, the judges can do nothing”.
It was suggested that mediator judges probe into the history during the
settlement process, to ensure that the settlement terms do not compromise
her rights and safety.
iv. Counselling can address issues of aggression, anger management and a
surety that violence will
not be committed, which
otherwise cannot happen
in mediation. Hence
section 14 needs to be
implemented
v. The Magistrate should
ensure that parties are
directed for counselling
only after ad-interim or
interim order/s
(specifically those of
protection, monetary and residence orders, if sought, have been passed.)
vi. No hearing should be allowed during the period of counselling.
vii. If settlement is arrived at, the consent terms should be binding and
enforceable. The Magistrate should pass an order be to that effect. It should
be specific with dates and other details
viii. The Courts should develop a referral mechanism while directing cases for
counseling.
ix. A copy of the counseling order along with the copy of application filed by
the woman in the court, should be sent to the counselor, so that the
counselling process can begin without delay. Principles, ethics and
guidelines as given in Rule 14 may also be sent to the counsellor.
x. In case the Magistrate finds that children are in need of specialized
counselling and care, it court can involve other child care agencies and
counselling services.
xi. If settlements have been arrived at as an outcome of counselling, the
Magistrate may check that the woman’s safety and rights have not been
compromised
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Administrative Suggestions:
a. Judicial officers suggested that all cases – civil and/or criminal - of a particular
applicant be heard in a single court and this can be done through a circular from the
Bombay High Court
b. Bombay High Court may also issue circular/ order on allowing compliance hearings
to be conducted after passage of final orders
7) Protection orders and other reliefs: Provisions:
The following sections pertaining to orders for protection and reliefs were discussed:
Section 18: Protection orders
Section 19: Residence orders
Section 20: Monetary reliefs
Section 21: Custody orders
Section 22: Compensation orders
Issues:
a. Protection Order is not always passed along with other relief orders
b. The practice of directing POs to conduct home visits for purpose of inquiry pertaining
to assets, emoluments or for clarification before granting interim relief etc. is absent.
c. Compensation orders are rarely passed because the necessary evidence is not
available, and instead monetary orders are requested for or passed.
d. Ambiguity of the term ‘relationship in the nature of marriage’ poses difficulties
e. Lack of clarity/ precision in orders leads to non-implementation or delay in
implementation
f. There is no follow-up provision or mechanism after the final order is passed
Suggestions:
Suggestions for Effective Implementation:
a. Every order – be it monetary relief, residence order, custody of children,
compensation, should contain an appropriately spelt out “Protection Order”.
Explanation: The Magistrate grants various reliefs under the PWDVA because
of presence of DV; type of which may be physical, sexual, verbal and
emotional and economic abuse. Therefore, it is presumed that every order
passed provides protection from a particular type of DV. However, the type of
DV from which protection is sought needs to be spelt out in the order as
‘protection order’. Even if a prayer for ‘protection order’ per-se is not made in
the aggrieved woman’s application, the Magistrate should proactively pass the
protection order against the domestic violence
b. While passing orders the Magistrate should state that the breach of every order shall
be deemed to be a criminal offence under Section 31 of the Act.
c. Along with the protection order, the Magistrate may direct the concerned police
station to give protection to the aggrieved woman and her dependents.
25
d. Magistrate may direct the respondent to execute a bond, with or without sureties, for
preventing the commission of domestic violence as per section 19(3)
e. Magistrate may proactively call upon the PO and direct her/him to make a visit to the
home or elsewhere to enquire into the assets, emoluments, etc. while passing
monetary orders – interim or final
f. Orders should be clear and comprehensive so as to ensure proper implementation and
directions be given to concerned stakeholder for ensuring implementation
For example,
In case of Residence Orders: The order may include instructions to the police
to break open the lock of the house if residence is denied in spite of the order.
Where alternate rented accommodation is provided by the respondent, he may
be directed to give to post-dated cheques or fix a certain date before which he
has to deposit the rent.
Protection during implementation of order: Direct the police to provide
protection to the aggrieved woman and the accompanying PO while
implementing an order of residence or custody or any other to ensure safety.
In case of monetary orders: The order should contain the period from which
the payment is to be made and the time frame by which the payment is to be
given. While considering the quantum of monetary relief, the judge should
consider the lifestyle of the petitioner and include medical expenses, insurance
premiums etc.
In case of Custody orders: Children can be used by Respondent to deter the
petitioner from taking action. The order may involve the Police and PO while
handing over custody of children, and also include handing over of important
documents of children/ child – such as birth certificates, medical reports etc.
Respondents must be directed to cooperate in matters pertaining to children –
such as giving signatures on documents, not disturbing them in their school/
college/class etc.
One activist said:
“Residence orders together with
protection orders are remedies that
should get priority over Shelter Home.
However, this should be done under
close supervision of POs, SPs or local
women’s groups. A woman would be
able to live in a known environment and
continue with her social relations in the
neighbourhood. A law in which right to
residence in shared household is
recognized, shelter home should be
used as a last resort, unless the woman does not desire so.”
g. Amount of compensation granted through a compensation order can include expenses
that the woman is likely to incur in filing/ proceeding with her case
26
h. It was suggested that in cases where a ‘relationship is in the nature of marriage’ –
exists, the court should resolve the ambiguity by using fearlessly his/her own
judgment (using the gender perspective) and pass orders accordingly. Care should be
taken to ensure the orders do not penalize either of the two women.
8) Implementation of orders Issues:
a. The content of orders passed are vague and broad
b. Execution of orders – inordinately delayed or not done
c. Inadequacy or absence of implementing machinery
d. No follow up by courts to ensure whether or not the orders have been executed and no
such provision in the Act
Suggestions
Suggestions for Effective Implementation:
a. The content of orders passed should be more specific: Please refer suggestions as
presented in point 7 f of ‘Suggestions for Effective Implementation’
b. Inordinately delays in execution of orders may be prevented in the following
ways:
i. The courts may seek greater involvement of POs and SPs in executing orders
For example, PO may be directed to pay home visit to verify residence in case
of residence orders.
ii. Certain time limits for execution may be specified in the order itself to speed
up the process.
iii. Compliance hearings may be held for following up on final orders.
iv. Use of Section 19(7) may be made. The court may direct the police official to
assist and provide protection to POs or other authorities appointed by the
Department of Women and Child Development (DWCD) such as Anganwadi
workers who help execute orders of the court
For example: For recovery of amounts specified under monetary orders,
or recovery of certificates etc. the court may seek help of police, Service
Providers and employers. Or in case of residence orders – to break open
the lock if respondent denies entry.
v. For recovery of monetary relief or for non-compliance with a relief order,
Court can also issue NBW – refer case law3
vi. Section 19(3) should be used in case of residence orders– wherein the
respondent is required to execute a bond, with or without sureties, for
preventing commission of violence. If the residence order is breached this
would warrant appropriate legal action.
3 Sagar Sudhakar Shendge (2013) : MANU/MH/0295/2013
27
The Court may use powers section 28 (2) - to lay down its own procedure for execution/
implementation of orders. The scope for innovation that this section provides can be used to
genuinely benefit the violence survivor; only then will real justice be done. Judicial officers
expressed that this section be used only if procedures laid down by law, such as Rule 6(5) of
PWDV Rules are not sufficient.
c. Improvements in implementing machinery
The number of POs and other implementing machinery should be increased, and POs
be adequately trained.
d. Courts to keep follow-up on whether or not the orders have been executed
Follow-up of the Protection Order is important for ensuring that it has been
implemented.
i. More responsibility for execution of orders may be put on the POs
ii. The Court may direct the PO to report to the court whether the order has been
implemented or not within as stipulated period
iii. The PO responsible for implementation may be asked to file a compliance
report.
.
Administrative Suggestions:
In order to address the issue of inadequate machinery for implementation of orders, a
questionnaire may be circulated to all judicial officers for identifying lacunae. The findings
may be used to make suggestions at the administrative level.
The Bombay High Court may provide guidelines or protocols for ensuring compliance of
orders and issue directions to Courts for following the same and disposing a case on the basis
of the compliance report.
28
9) Breach of orders: Section 31, 32 Provisions:
Section 31(1): Penalty for breach of protection order by respondent.—
(1) A breach of protection order, or of an interim protection order, by the respondent shall be
an offence under this Act and shall be punishable with imprisonment of either description for
a term which may extend to one year, or with fine which may extend to twenty thousand
rupees, or with both.
Section32: Cognizance and proof.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence
under sub-section (1) of section 31 has been committed by the accused.
Issues
a. Procedure to be followed in case of breach of order Delays caused due to lengthy
proceedings on breach of orders
b. Only breach of protection orders warrant action under section 31, breach of other
relief orders is not considered as violation under section 31
Suggestions
Suggestions for Effective Implementation:
a. The Magistrate shall try breach of protection order summarily[Rule 15(6), Rule 15(7)]
b. The Magistrate on the sole testimony of the aggrieved woman can conclude that there
is a breach of protection order under section 31(1). However if evidence can be made
available it strengthens the case because it is tried as a cognizable and non-bailable
offence.
c. While passing order for any relief under the PWDVA, the Magistrates should include
“Protection Order” in the judgment so that violation of the order would fall under
Section 31 and would be considered as cognizable offence and action could be taken
against the offender.
d. The case of breach of protection order should as far as possible be tried by the same
Magistrate who had passed the order –whether it be the final order or interim order.
However in case of breach of interim order, he should conduct the proceedings under
Section 31 along with the original application. the.
e. While framing charges the Magistrate may also frame charges under section 498A of
the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), if the facts disclose the commission of an offence
under those provisions.
f. When a complaint is filed and prosecuted under section 498A of the Indian Penal
Code, the aggrieved person may apply before that Magistrate for any order under the
PWDVA. The Magistrate may pass any order under the PWDVA.
Administrative Suggestions
Trials under section 31 of PWDVA should be disposed off speedily..
29
10) Appeal: Section 29 Provision:
Section 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.
Issues:
a. Appeals, most of which are filed for reduction in quantum of monetary relief after
interim or final orders causes delay
b. Some Magistrates in practice are reluctant to pass interim orders for the reason that if
appeals get filed in the interim stage, it causes delay
Suggestions
Suggestions for Effective Implementation:
a. Stay order should not be granted without hearing the aggrieved woman
b. While granting appeals, the court should ensure that arrears of monetary relief are
paid or necessary reliefs obtained that were due prior to appeal
c. Appeals are mostly filed for reduction of quantum of monetary relief. Such appeals
should be expedited without delay.
11) Coordination Issues
Lack of coordination among stakeholders
Suggestions
Suggestions for Effective Implementation:
Collective effort can make use of and the implementation of PWDVA more effective. The
law provides for multi-agency support and intervention for women facing domestic violence.
Each agency – the PO, SP, Police, Court - plays its stipulated role. Without coordination
between all these agencies, the interventions may get compartmentalised and resulting into
inefficiency. Sharing the information and discussing issues among stakeholders can help
overcome obstacles and difficulties in the process of realizing justice. In order to improve
coordination the following is recommended
Administrative Suggestions:
a. Practice of joint monthly or quarterly meetings of judges, mediator judges, POs,
police, SPs, Counsellors and any other stakeholders be adopted within each district
for coordination and follow-up of cases of DV.
b. District Judge may call for such meetings through its Chief Judicial Magistrate
c. Such meetings would have a different goal from that of state-established district level
monitoring committees in that cases which the Courts and the other stakeholders have
dealt with will be shared for identifying best practices, learning from each other and
overcoming difficulties in the best interest of the DV survivor.
d. Stakeholder meetings at the level of local courts may also be organized on a monthly
basis of discussing risk assessment in DV cases, formulating safety plans etc.
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12) Miscellaneous Issues:
a. Duality of approach – Early approach to courts, before the violence has escalated to
higher degrees, is more likely to be beneficial to women. However, it is also likely
that the Courts may treat the case as being less serious in nature, not an emergency,
and therefore may impact passing of orders – interim as well as final
b. Concerns about quality of shelter homes for women
c. List of POs, Counsellors and SPs is not available with the Courts
d. In practice, Courts do not make much use of the support system that the law provides
for
e. Lack of clarity on ‘Relationship in the nature of marriage’
f. Criminal court case numbers given to DV cases although PWDVA is a civil law
g. Neither formal education in law nor trainings provided to judges, lawyers, police
contain topic on gender
Suggestions:
Suggestions for Effective Implementation:
a. Women who approach courts in the early stages of domestic violence and marital
discord should be taken seriously. The attitude “Now-a-days young women do not
want to make adjustments/ compromises. They have become intolerant, and with the
slightest quarrel they go to police and court” should be changed. Instead early
reporting of DV, should be used as an opportunity for strengthening the negotiating
space for the woman, prevent recurrence of DV, and even strengthen the marital
relationship through counselling.
b. If residence orders are passed along with Protection orders and implemented well
through the support of stake holders, if the woman desires so, shelter homes will not
be necessary. Improving quality of shelter homes is a must and state should take upon
itself to evaluate its functioning and improve quality
c. Courts should make use of the support system - the SPs including shelter homes and
medical facilities registered under the PWDVA – all of whom are regarded as ‘public
servants’ by directing them to assist the woman.
d. However, before referring a woman to a SP, protection orders should be passed.
e. Ambiguity on ‘relationship in the nature of marriage’ continues to exist despite the
Supreme Court decisions4 that provide certain guidelines.
Administrative Suggestions:
a. List of SPs is not provided to the Courts. The Chief Justice, Bombay High Court may
direct the DWCD to provide such list within a specified date and provide a revised list
before that specified date every year.
b. All DV cases should be treated and referred to as civil cases under the PWDVA, and
not be given criminal case numbers . Separate recording system/ register with distinct
4 Chanmuniya (2011) 1 SCC 141.; Velusamy (2011) MANU/SC/0872/2010; Inder Sarma (2013)
MANU/SC/1230/2013
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case numbers/ series be adopted. (in some places such practice has already begun -
informed by some judicial officers.)
c. Gender sensitization should be made part of any training on law and its
implementation, given to any stakeholders. Also training in mediation provided to
judicial officers should contain a strong component of gender sensitization.
BRIEF ON CASE LAW Participants were briefed about the judgments of the Bombay High Court and Supreme
Court. The detailed judgments were provided to the participants in a CD
SUMMARY OF FEEDBACK Written feedback was taken from participants at the end of each workshop.
The learning/ insights:
Many of the judicial officers expressed that their knowledge was enriched and refreshed.
They gained deeper insights in to the objectives of the Act and in understanding the law
from a feminist approach. This understanding, they said would impact the orders that they
would pass.
“I learnt that the root cause of domestic violence lies within gender boxes
created by socio-cultural standard. I got acquainted with violence circles and
how violence increases and the cycle continues. Basically entire workshop was
based upon theoretical studies well equipped with research materials. The
studies and point of view enhance sensitization about domestic violence. Being
a judge mediator, today’s workshop will certainly be an asset while dealing
with parties more particularly to understand mind set of parties. It gives an
opportunity to find out options and for successful mediation in matrimonial
matters”.
It brought clarity in understanding concepts of ‘sex’ and ‘gender’. It provided a new
‘angle’ to the understanding of gender and patriarchy to be applied while dealing with
cases for ensuring ‘gender justice’. Some wrote that GBV was new to them and they
need to enhance their understanding on DV further.
As a beneficial legislation provisions should be interpreted liberally keeping in mind that
it is enacted for the benefit of ‘weaker sections’, they felt.
“It helped me change my mindset. Now I can certainly use the provisions of
the law more effectively.”
They understood the provisions in greater depth “more minutely”; for example
- to pass protection orders along with order for reliefs in every case,
- be more specific in formulating orders so that it becomes enforceable and gets
implemented quickly
- importance of interim orders.
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- As far as possible, ‘protection’ to women be given in their own family/ household
if she desires so
“I realize that several hurdles can be overcome by acting within the framework
of law.”
Many of the judicial officers wrote that the mechanism of service of notice - biggest
hurdle – can be improved by making use of all available resources. For implementation of
orders, they found issuing of non-bailable warrant, attaching salary for recovery of
monetary orders, were good suggestions.
“There is much to do about Domestic Violence Act and we need sensitivity beyond
the framework of regular routine work”
They felt that they can use new and innovative ideas for implementing the Act
effectively. The court can play a proactive role by using discretionary powers under
section 28 to its fullest. It can use its own procedure of expediting the case; record
evidence of DV victims, use different mechanisms established under the law, they wrote.
Pertaining to Protection Officers (POs) they wrote that the dialogue with protection
officers during the workshop was useful and such dialogue needs to be maintained. They
learnt more about
- the role and responsibilities of POs,
- the need for cooperation and coordination between the Court and POs.
- the court should seek their greater involvement and assistance while dealing with
cases.
They felt that Magistrate should use its powers to direct POs to file DIRs and take their
assistance in expediting cases; direct Police Officers to ensure ‘protection’ and non-
recurrence of violence, prepare safety plans; and direct parties for counselling.
Some judicial officers expressed that safety plan is useful in deciding cases and passing
orders. It would equip the Magistrate know “what is to be done at the time of
compromise/ settlements” and carefully formulate the terms of settlement arising out of
mediation efforts, felt a few of them.
“We must regard ‘Women’ as ‘Human Beings’ while dealing with cases under the
Act”
Some participants agreed that follow-up after passing of orders is important and
necessary in ensuring justice to women.
Few expressed that the workshop was exhaustive and inspirational. Some also
appreciated the manner in which the workshop was conducted.
“Due to the session conducted by Shri Anand Pawar my perception about gender
related violence has changed a lot. So also by the session conducted by Dr. Sagade, I
became acquainted with niceties of Act”
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Some found the insights and information to be useful in day-to-day work. For example,
they felt that Case Law discussed during the workshop would help them in passing
appropriate orders – both in the interim stage and the final orders. Many said that the
material provided is also useful.
“Workshop was conducted in a very lively manner. Resource persons demonstrated
very useful information and tips about role of judiciary in implementing the DV Act
in true spirit”
Drawbacks:
The participants also pointed out certain drawbacks of the workshops.
Few of them felt that the presentation was one-sided, biased and ‘pro-women’, and was
unnecessary, and that more emphasis should have been given to the discussion on the law.
Some also expressed more discussion should have taken place on the practical aspects of
implementation.
Some suggested more discussion on problems/ difficulties faced by litigants and magistrate
while dealing with cases, on speedy disposals and recovery, using section 125(3) CrPC and
its effective procedures for execution of orders.
Some also suggested that a collection of judgments or ‘model orders’ if provided would
have been more helpful and best practices should have been highlighted.
Some felt that the sessions were lengthy, and at times repetitive.
Few others felt that the time for the workshop was short, and suggested that it should be
extended to two days - with the first day for gender and second day for law.
Police officers/ representatives and officers from health department should also be invited to
such workshops.
Suggestions and Comments:
The participants also wrote their overall comments and suggestions in the feedback.
Some of the suggestions were:
1. Workshops be organised with POs for training them on how to record DIRs, what
should be mentioned in them and how it should be submitted.
2. A well-documented collective exercise for identifying lacunae in the DV Act and for
suggesting ways of overcoming them be carried out with Magistrates, POs, SPs,
medical officers.
3. Workshops such as these be conducted on mass scale so as to cover every magistrate,
4. Use of Mediation in DV cases is widely used. Hence workshops should address the
concept and practice of mediation in greater detail.
5. Regular regional meetings of all stakeholders should be conducted to promote
coordination and for effective implementation.
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PRESS COVERAGE Local newspapers covered some of the workshops; images of press cuttings are as below.
Workshop in Ratnagiri
covered by Lokmat dated 12/01/2014
-
Workshop in Beed
Covered by Evening Reporter dated 16/02/2014
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Workshop in Sindhudurg covered by
a. Lokmat dated 09/04/2014 b. Dainik Sakal dated 09/04/2014
. c. Pudhari dated 09/04/2014
d. Punyanagari dated 09/04/2014
