NOTES ON CLAUSES

 

** As submitted in parliament alongwith the DV Bill and Object and reasons**

 

Clause 1.—This clause provides for the short title, extent and commencement of the proposed legislation. The proposed legislation will extend to the whole of India except to the State of Jammu and Kashmir in the area of protection of women who are victims of violence of any kind occurring within the family. As adequate steps have to be taken for administering the provisions of the Bill, provision has been made empowering the Central Government to appoint the date of commencement of the proposed legislation, by notification in the Official Gazette.

 

Clause 2.—This clause defines the various expressions occurring in the proposed legislation. The definitions of "aggrieved person"-, "domestic relationship", "domestic violence", "monetary relief, "Protection Officer", "protection order", "residence order", "respondent", "service provider" and "shared household" are some of them. As per the proposed legislation, any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to act of domestic violence by the respondent is an aggrieved person. The expression "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are members of a family living together as a joint family. The word "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the proposed legislation provided that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint under the proposed legislation against a relative of the husband or male partner.

 

Clause 3.—This clause defines the expression "domestic violence". Any act, omission or commission or conduct of the respondent shall amount to domestic violence in certain circumstances. It includes causing physical abuse, sexual abuse, verbal and emotional or economic abuse which are also explained in the clause. In determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence", the overall facts and circumstances of the case shall be a guiding factor.

 

Clause 4.—This clause seeks to provide that any person who has reason to believe that an act of domestic violence has been or is being committed, such person may inform the Protection Officer. It also lays down that the person who is providing the information in good faith shall be exempt from any civil or criminal liability for giving such information.

 

Clause 5.—This clause lays down the duties of a police officer, Protection Officer, service provider and the Magistrate to inform the aggrieved person of her right to make an application for one or more reliefs under the proposed legislation, the availability of services of service providers and Protection Officers, her right to avail free legal services under the Legal Services Authorities Act, 1987 and her right to file a complaint under section 498A of the Indian Penal Code, wherever relevant. It is also envisaged that this clause shall not relieve any police officer from his duty to proceed in accordance with law on receipt of information as to commission of a cognizable offence.

 

Clause 6.—This clause seeks to provide that the person in charge of a shelter home shall be bound to provide shelter to the aggrieved person on being requested by the aggrieved person or, on her behalf by a Protection Officer or a service provider.

 

Clause 7.—This clause seeks to provide that the person in charge of the medical facility shall be bound to provide medical aid to the aggrieved person if requested by her or on her behalf by a Protection Officer or a service provider.

 

Clause 8.—This clause empowers the State Government to appoint, by notification in the Official Gazette, such number of Protection Officers in each District as it considers necessary and also to notify the area in which such Protection Officer shall exercise the powers conferred and discharge the duties imposed under the proposed legislation. It also

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provides that the Protection Officers shall, as far as possible, be women and shall possess such qualifications and experience as may be laid down by the Central Government, by rules. The terms and conditions of service of the Protection Officer and the other officers subordinate to him may also be regulated by rules.

 

Clause 9.—This clause lays down the duties and functions of the Protection Officers. The Protection Officer may assist the Magistrate in the discharge of his functions under the proposed legislation, make a domestic incident report to the Magistrate, make an application to the Magistrate if the aggrieved person so desires praying for issuance of a protection order, ensure legal aid to the aggrieved person under the Legal Services Authorities Act, 1987, maintain a list of service providers, make available a safe shelter home if the aggrieved person so requires, get the aggrieved person medically examined if she has sustained bodily injuries, ensure that the order for monetary relief under section 20 of the proposed legislation is complied with and executed in accordance with the provisions of the Code of Criminal Procedure, 1973, and perform such other duties as may be laid down by the Central Government, by rules. It also stipulates that the Protection Officer shall be under the control and supervision of the Magistrate and perform the duties assigned to him by the Magistrate and the Government by or under the proposed legislation.

 

Clause 10.—This clause provides for the registration of certain entities with the State Government as a service provider for the purposes of the proposed legislation. Any voluntary association registered under the Societies Registration Act, 1860 or a company registered under the Companies Act, 1956 or under any other law, having the objective of protecting the rights and interests of women by lawful means including providing legal aid, medical, financial or other assistance shall be eligible to be registered under the proposed legislation as per the procedure laid down by rules. This clause also enumerates the powers of a service provider. Such powers include the power to record the domestic incident report, to get the aggrieved person medically examined and to ensure that the aggrieved person is provided shelter in a shelter home, if she so requires. This clause further provides immunity to the service provider or any member of the service provider for anything done or intended to be done in good faith under the proposed legislation, from any suit, prosecution or other legal proceeding.

 

Clause 11.—This clause stipulates the duties of the Central Government and the State Governments. These duties are to give wide publicity to the provisions of the proposed legislation, to give sensitization and awareness training on the issues addressed by the proposed legislation to Government officers including police officers and members of judicial service, to ensure effective coordination between Ministries and Departments dealing with law, home affairs, law and order, health and human resources in the services provided by them on the issues of domestic violence and to put in place protocols for the Ministries and courts concerned with the delivery of services to women under the provisions of the proposed legislation.

 

Clause 12.—This clause lays down that the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the proposed legislation including order for payment of compensation or damages without prejudice to the rights of such person to institute a suit for compensation or damages for the injuries sustained in the act of domestic violence committed by the respondent. While disposing of an application under sub-clause (1), the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. The amount paid or payable to the aggrieved person by an order made by the Magistrate under the proposed legislation hall be set off against the amount of decree of compensation or damages passed by any court in favour of the aggrieved person. Sub-clause (3) provides the format and particulars of the application under this clause shall be as nearly as possible to the format laid down by the Central Government by rules. Sub-clauses (4) and (5) provide that the Magistrate shall fix the first date of hearing of the application ordinarily within three days of its receipt and shall endeavor to dispose of every application within sixty days of the first hearing.

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Clause 13.—This clause provides that a notice of the date of hearing of an application for relief shall be given by the Magistrate to the Protection Officer who shall get it served by such means as may be prescribed by the Central Government on the respondent and on any other person within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate. A declaration of service of notice made by the Protection Officer in the form set out by the Central Government by rules shall be a proof of service of notice.

 

Clause 14.—This clause empowers the Magistrate to direct at any stage of the proceedings, the respondent or the aggrieved person either singly or jointly to undergo counseling with any member of a service provider. The member of the service provide providing the counseling shall possess such qualifications and experience as may be laid down by the Central Government, by rules. Where any counseling has been ordered under this clause, the Magistrate shall fix the next date of hearing of the case within a period not exceeding two months.

 

Clause 15.—This clause stipulates that the Magistrate may secure the services of a suitable person preferably a woman whether related to the aggrieved person or not, including a person engaged in promoting family welfare for the purposes of assisting the court in the discharge of its functions.

 

Clause 16.—This clause provides for proceedings to be held-in camera at the discretion of the Magistrate or if either party to the proceedings so desires.

 

Clause 17.—This clause lays down that irrespective of any contrary provision in any Other law, every woman in a domestic relationship shall have the right to reside in the shared household and the aggrieved person shall not be evicted or excluded from the shared household by the respondent except in accordance with the procedure established by law.

 

Clause 18.—This clause provides that 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, may pass a protection order In favour of the aggrieved person. A protection order may contain an order prohibiting the respondent from committing any act of domestic violence or aiding or abetting therein, 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 or attempting to communicate in any form whatsoever with the aggrieved person without the leave of the Magistrate, alienating any assets, operating bank lockers or bank accounts belonging to both the parties jointly or to the respondent singly, including her stridhan or any other property held jointly or separately by them, causing violence to the dependents, other relatives or any person giving the aggrieved person assistance from domestic violence or committing any other act as specified in the protection order.

 

Clause 19.—This clause provides that the Magistrate may on being satisfied that domestic violence has taken place pass a residence order restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, directing the respondent to remove himself from the shared household, restraining the respondent or his relatives from entering the shared household, restraining the respondent from alienating or disposing off or encumbering the shared household, restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate, or directing the respondent to secure alternate accommodation for the aggrieved person of the same level as enjoyed by her in the shared household or to pay rent for the same. It is also provided in this clause that no order shall be passed against any person who is a woman directing her to remove herself from the shared household. Sub-clause (2) empowers the Magistrate to impose additional conditions and pass any other direction in order to protect the safety of the aggrieved person or her child. Sub-clause (3) provides for execution of a bond by the respondent for prevention of the domestic violence. Sub-clause (5) empowers the Magistrate to pass an order directing the officer in charge of the concerned police station to give protection to the aggrieved person or to assist in implementation of the residence

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order. It is also provided in this clause that the Magistrate may impose on the respondent an obligation to discharge rent and other payments and to direct the respondent to return to the aggrieved person her stridhan or any other property or valuable security to which she is entitled.

 

Clause 20.—This clause empowers the Magistrate to pass orders for grant of monetary relief to the aggrieved person from the respondent to meet the expenses incurred and losses suffered including loss of earnings, medical expenses, loss to property and maintenance of the aggrieved person and her children including maintenance under, or in addition, to section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force. Sub­clause (2) provides that the monetary relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. This clause also empowers the Magistrate to order lump sum or monthly payments for maintenance. Sub­clause (6) provides that on the failure of the respondent to make payments of the monetary relief, the Magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the respondent.

 

Clause 21.—This clause lays down that notwithstanding anything contained in any other law for the time being in force the Magistrate may, at any stage of hearing of the application for grant of any relief, grant temporary custody of any child to the aggrieved person or to the person making an application on her behalf and specify the arrangements for visit of such child by the respondent. However, the Magistrate may refuse to allow such visits if in his opinion such visits may be harmful to the interests of the child.

 

Clause 22.—This clause lays down that in addition to other reliefs which may be granted under the proposed legislation, the Magistrate may, on an application by the aggrieved person, pass an order directing the respondent to pay compensation or damages or both to the aggrieved person for the injuries including for the mental torture and emotional distress caused to her by domestic violence by the respondent.

 

Clause 23.—This clause provides for grant of interim orders by the Magsistrate. He may also pass ex parte orders on the basis of affidavits given by the aggrieved person.

 

Clause 24.—This clause provides for supply of copies of orders passed by the Magistrate free of charge to the parties to the application, the concerned police officer and the service provider.

 

Clause 25.—This clause lays down that a protection order given under the proposed legislation shall be in force till the aggrieved person applies for its discharge. In case there is a change in the circumstances of a case, the Magistrate may, on application made by the aggrieved person or the respondent pass an order altering, modifying or revoking any order made under the proposed legislation.

 

Clause 26.—This clause provides that any relief available under the proposed legislation may also be sought in any legal proceeding before a civil court, family court or a criminal court and that any relief which may be granted under the proposed legislation may be sought for in addition to and along with reliefs sought for in a suit or legal proceeding before a civil or criminal court. Sub-clause (3) lays down that the aggrieved person shall be bound to inform the Magistrate of the reliefs obtained by her in any proceeding other than proceedings under the proposed legislation.

 

Clause 27.—This clause lays down that the Magistrate, within the local limits of whose jurisdiction the aggrieved person permanently or temporarily resides or carries on business or is employed or the respondent resides or carries on business or is employed or the cause of action has arisen, shall be the competent Magistrate to grant protection orders and other orders and to try offences under the proposed legislation. Sub-clause (2) provides that any order made under the proposed legislation shall be enforceable throughout India.

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Clause 28.—This clause provides that proceedings under the proposed legislation relating to application and orders for reliefs and offence of breach of protection order or interim protection order by the respondent shall be governed by the provisions of the Code of Criminal Procedure, 1973. Sub-clause (2) envisages that the court may lay down its own procedure for disposal of applications for any relief or for ex parte order.

Clause 29.—This clause provides that an appeal from the order made by the Magistrate shall lie to the Court of Session within thirty days from the date of service of the order on the aggrieved person or the respondent, whichever is later.

 

Clause 30.—This clause seeks to provide that the Protection Officer and members of service providers shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code while acting or purporting to act under any of the provisions of the proposed legislation or the rules or orders made thereunder.

 

Clause 31.—This clause provides that a breach of protection order or an interim protection order by the respondent shall be an offence under the proposed legislation punishable with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both. Sub-clause (2) provides that the offence of breach of protection order or interim protection order shall be tried as far as practicable by the Magistrate who had passed the order which is alleged to have been breached. Sub-clause (3) provides that the Magistrate, while framing charges regarding breach of order, may also frame charges under section 498 A or any other provision of the Indian Penal code or the Dowry Prohibition Act, 1961 in case the facts disclose the commission of any offence under those provisions.

 

Clause 32.—This clause lays down that the offence of breach of protection order by the respondent shall be a cognizable and non-bailable offence and the court may conclude that the offence has been committed on the sole testimony of the aggrieved person.

 

Clause 33.—This clause provides that any Protection Officer who fails or refuses to discharge his duties as directed by the Magistrate in the protection order he shall be punished with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both.

 

Clause 34.—This clause provides that no prosecution or other legal proceeding shall lie against the Protection Officer except on a complaint filed with the previous sanction of the State Government or an officer authorized by the State Government for the purpose.

 

Clause 35.—This clause provides that no suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything done or intended to be done in good faith under the proposed legislation or any rule or order made there under.

 

Clause 36.—This clause stipulates that the provisions of the proposed legislation shall be in addition to and not in derogation of the provisions of any other law.

 

Clause 37.—This clause empowers the Central Government to make rules for carrying out the provisions of the proposed legislation. It also provides that the rules made under the proposed legislation are required to be laid before both the Houses of Parliament.