Written by CLPR intern Pratichi Mishra, a final year student at NLU-Delhi.
Despite the Protection of Women from Domestic Violence Act (“DV Act”) being passed in 2005 to “provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family” it is not being used effectively. The DV Act provides that the aggrieved person may approach not only the Magistrate but also the Civil court, Family court or any other courts and seek reliefs including protection orders, residence orders,monetary reliefs, custody orders, and/or compensation orders. This provision was made for in Section 26 of the Act because The DV Act was conceptualized as a law that would be a combination of both civil and criminal law elements. Thus, it is wrong to understand the DV Act only as a criminal law, with powers to be exercised only by the Magistrate. Other civil courts and family courts can also grant reliefs, which are both civil and criminal in nature.
Section 26 was added specially to ensure that women facing domestic violence could claim reliefs under the DV Act, not only before the jurisdictional Magistrate, but also in other courts such as the Family Courts or the Civil Courts where they may have other proceedings. In most matrimonial matters, this would be common because there would be divorce, maintenance or custody and guardianship proceedings pending in the Family Courts and there could also be proceedings relating to property pending between the spouses and other family members pending in the civil courts. In such an event, if the woman needed protection orders, residence orders, monetary reliefs or custody orders, the same could be obtained by her by making an application for the same under the DV Act in those on-gong proceedings. However, Section 26 is not used enough and most women facing domestic violence still approach only the Magistrates for relief. This is also because family courts and civil courts are not clear about their powers and jurisdiction under section 26 of the DV Act to grant relief.
The Hon’ble Supreme Court in Indra Sarma vs V.K.V.Sarma held:
“The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family……”
The Kerala High Court in Sudhannya K.N v. Umasanker Valsan and Venugopalan v. Jayasree V. Nair discussed the legislative intent behind Section 26 of the Act and held that the DV Act guarantees larger rights in favour of the woman by giving her the option to approach either the Family Court or the Magistrate at her convenience. It further went on to hold that the Family Courts have the power under Section 26 to pass interim protection orders as well as interim residence orders.
The Bombay High Court has also upheld this proposition in Pramodini Vijay Fernandes v. Vijay Fernandes and Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, stating that if a legal proceeding is already filed in a Civil or a Criminal Court affecting the aggrieved person and the Respondent, relief under Sections 18, 19, 20, 21 and 22 could be granted by such Civil or Criminal Court. The Bombay High Court went so far as to hold that the Family Court could even take cognizance of breach of interim orders under Section 31 of the DV Act. The High Courts of Madras, Assam and Chhattisgarh have also similarly stated the law in this respect.
One of the big challenges of the effective implementation of the DV Act would therefore be to ensure that reliefs are sought for by women facing violence in all courts and not just before the Magistrates’ courts.
 Long Title, Protection of Women From Domestic Violence Act, 2005
 Section 18, Protection of Women From Domestic Violence Act, 2005
 Section 19, Protection of Women From Domestic Violence Act, 2005
 Section 20, Protection of Women From Domestic Violence Act, 2005
 Section 21, Protection of Women From Domestic Violence Act, 2005
 Section 22, Protection of Women From Domestic Violence Act, 2005