Form II under Rule 6 of Rules, 2006, framed under the impugned Act

Impugned Provision / other anomaly	Breach of Section / Article
FORM II [See Rule 6(1)] Application to the Magistrate under Section 12 of the impugned Act	Section 3 – Explanation II; Section 18, 19, 20, 22 and 23 of the impugned Act. Principles of natural justice.

FORM II [See Rule 6(1)]

Application to the Magistrate under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (43 of 2005)

    To

The Court of Magistrate
....................................
....................................
....................................
....................................

Application under section ........................ of the Protection of
Women from Domestic Violence Act, 2005 (43 of 2005)       

    SHOWETH:

1. That the application under section.................of Protection of Women from Domestic Violence Act, 2005 is being filed along with a copy of Domestic Incident Report by the:

(a) Aggrieved person                                                       □
(b) Protection Officer                                                       □
(c) Any other person on behalf of the aggrieved person     □
(tick whichever is applicable)

2. It is prayed that the Hon'ble Court may take cognizance of the complaint/Domestic Incident Report and pass all/any of the orders, as deemed necessary in the circumstances of the case

(a) Pass protection orders under Section 18 and/or
(b) Pass residence orders under Section 19 and/or
(c) Direct the respondent to pay monetary relief under Section 20 and/or
(d) Pass orders under Section 21 of the Act and/or
(e) Direct the respondent to grant compensation or damages under Section 22 and/or
(f) Pass such interim orders as the court deems just and proper
(g) Pass any orders as deems fit in the circumstances of the case

3. Orders required:

(i) Protection Order under Section 18

□ Prohibiting acts of domestic violence by granting an injunction against the Respondent/s from repeating any of the acts mentioned in terms of Column 4(a)/(b)/(c)/(d)/(e)/(f)/(g) of the application
□ Prohibiting Respondent(s) from entering the school/college/workplace D Prohibiting from stopping you from going to your place of employment
□ Prohibiting Respondent(s) from entering the school/college/any other place of your children D Prohibiting from stopping you from going to your school
□ Prohibiting any form of communication by the Respondent with you D Prohibiting alienation of assets by the Respondent
□ Prohibiting operation of joint bank lockers/accounts by the Respondent and allowing the aggrieved person to operate the same
□ Directing the Respondent to stay away from the dependants/relatives/any other person of the aggrieved person to prohibit violence against them
□ Any other order, please specify  [                                                                              ]

(ii) Residence Order under Section 19

   □ An order restraining Respondent(s) from
   □ Dispossessing or throwing me out from the shared household
   □ Entering that portion of the shared household in which I reside
   □ Alienating/disposing/encumbering the shared household
    □ Renouncing his rights in the shared household
    □ An order entitling me continued access to my personal effects
    □ An order directing Respondent(s) to
        o Remove himself from the shared household
        o Secure same level of alternate accommodation or pay rent for the same
   □ Any other order, please specify            [                                                                             ]

(iii) Monetary reliefs under Section 20

    □ Loss of earnings, Amount claimed        [ ____________________] 
    □ Medical expenses, Amount claimed     [____________________] 
    □ Loss due to destruction/damage or removal of property from the control of the aggrieved person,

Amount claimed   [____________________]

    □ Any other loss or physical or mental injury as specified in clause 10 (d)

Amount claimed   [____________________]

    □ Total amount claimed                           [ ____________________] 
    □ Any other order, please specify             [___________________________]

(iv) Monetary reliefs under Section 20

    □ Directing the Respondent to pay the following expenses as monetary relief.
    □ Food, clothes, medications and other basic necessities, Amount [__________] per month
    □ School fees and related expenses                                  Amount [__________] per month
    □ Household expenses                                                     Amount [__________] per month
    □ Any other expenses                                                      Amount [__________] per month
    □ Any other order, please specify        [ _______________________________]

(v) Custody Order under Section 21

    Direct the Respondent to hand over the custody of the child or children to the
    □ Aggrieved person    □ Any other person on her behalf, details of such person
                                          [ __________________________________________________]

(vi) Compensation order under Section 22
(vii) Any other order, please specify                  [ _______________________]

4. Details of previous litigation, if any

(a) □ Under the Indian Penal Code, Sections..........Pending in the court of [___________________] 
     □ Disposed of, details of relief                     [ ______________________________]

(b) □ Under CrPC, Sections....................Pending in the court of    [___________________________] 
    □ Disposed of, details of relief                                 [_______________ ______]

(c) □ Under the Hindu Marriage Act, 1956, Sections.......Pending in the court of    [________________] 
     □ Disposed of, details of relief                             [ ______________________________]

(d) □ Under the Hindu Adoptions and Maintenance Act, 1956, Sections..........Pending in the court 
            of [________________] 
     □ Disposed of, details of relief                 [ ______________________________]

(e) □ Application for Maintenance, under section..............under         [____________________] Act
         Interim maintenance Rs     [_________________] p.m.
         Maintenance granted Rs    [_________________] p.m.

(f) □ Whether Respondent was sent to Judicial Custody
     □ For less than a week             □ For less than a month
    □ For more than a month
        Specify period     [____________________________]

(g) Any other period    [____________________________]

Prayer.

        It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to grant the relief(s) claimed therein and pass such order or orders other order as this Hon'ble Court may deem fit and proper under the given facts and circumstances of the case for protecting the aggrieved person from domestic violence and in the interest of justice.

Place  :                                                                                                              Complainant/Aggrieved Person
Dated :                                                                                                                                  Through
                                                                                                                                                    Counsel

Verification

        Verified at...............(place) on this day of...................that the contents of Paras 1 to 12 of the above application are true and correct to the best of my knowledge and nothing material has been concealed therefrom

Deponent     

                           
Countersignature of Protection Officer with date 

SECTION 3: Definition of domestic violence

For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.For the purpose of this section,

(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) "economic abuse" includes

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II: For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.

SECTION 18: Protection orders

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

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

SECTION 19: Residence orders

(1) While disposing of an application under sub-sec. (1) of Sec. 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-sec. (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-sec. (1), sub-sec. (2) or sub-sec. (3), the Court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-sec. (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

SECTION 20: Monetary reliefs

(1) While disposing of an application under sub-sec. (1) of Sec. 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-sec. (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-sec. (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-sec. (1), 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 credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

SECTION 22: Compensation orders

In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

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 Sec. 18, Sec. 19, Sec. 20, Sec. 21 or, as the case may be, Sec. 22 against the respondent.

RULE 6: Applications to the Magistrate

(1) Every application of the aggrieved person under Section 12 shall be in Form II or as nearly as possible thereto.

(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate.

(3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.

(4) The affidavit to be filed under sub-section (2) of Section 23 shall be filed in Form III.

(5) The applications under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).

The Argument

1.      A perusal of Form II, provided under Rule 6 of the Domestic Violence Rules, 2006, to facilitate Application to be made u/s 12 of the impugned Act, would reveal us that it does not require the “aggrieved person” to state “facts” of “alleged acts and omissions” of the Respondents, which constitutes “domestic violence”. It only requires the reliefs which are sought under the proceedings. Even the Domestic Incident Report prepared by the Protection officer in the prescribed Form I does not contemplate recording of any facts in issue or relevant facts, constituting “domestic violence”.

2.      Facts which are essential to disclose a complete cause of action are material facts and are essentially required to be pleaded. The function of particulars is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him and which he is required to meet. What are material facts would depend upon facts of each case. Material facts are those facts which if established would give the petitioner the relief asked for.

3.      In the absence of assertion of such “facts”, it is surprising / even puzzling, how the Respondent would ever meet and resist the claim of the aggrieved person, as she is being allegedly subjected to “domestic violence”. In the absence of assertion of such “facts”, how any Courts would ever conclude that in fact “domestic violence” has been committed by the Respondent.

4.      The statement of material facts of the case is a basic and most elementary requirement of pleadings in any judicial proceedings known to law, and under no circumstances it can be dispensed with.

5.      Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.

6.      Merely quoting the words of the Section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary.

7.      In a series of judgments, this court has laid down that material facts are primary or basic facts which have to be pleaded by the party concerned to prove his cause of action and by the defendant to prove his defence. Material facts provide the basic foundation on which the entire edifice of the case is built. Such material facts are 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary', for the just decision of the tribunal.

8.      Pleading is, among other things, is an organization of material facts. In the leadings English case of Phillips V/s. Phillips, Cotton, L.J. stated:

9.      "What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial."

10.  "The function of assertion of material facts is to carry into operation the overriding principle that the litigation between the parties, should be conducted fairly, openly and without surprises. This function has been variously stated, namely either to limit the generality of the allegations in the pleadings. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial.

11.  As a matter of fact, the opening words of section 3 itself makes it clear that certain acts, omissions and commissions and / or conduct of the Respondent shall constitute domestic violence. Also while looking at the Explanation II appended to section 3, it is abundantly clear that there has to be clear and unambiguous assertion of facts of “acts of commission or omissions or conduct” which constitutes domestic violence.

12.  All necessary and material facts must be pleaded by the party in support of his / her / its case. The object and purpose of pleading is to enable the adversary party to know the case of the opponent.

13.  In a case before it, the Hon’ble Apex Court observed to say that, "vagueness" is a relative term, and varies according to the circumstances of each case, but if the statement of facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand what exactly is the allegation against him, and he is thereby prevented from making an effective representation, it does not require much argument to hold that one such vague ground is sufficient to justify the contention that his fundamental right under clause (5) of Art. 22 of the Constitution has been violated.

14.  The detenu who is a layman not experienced in the interpretation of documents, can hardly be expected, without legal aid, which is denied to him, to interpret the grounds in a sense which can be interpreted by a man having a legal knowledge. Surely, it is up to a detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resources for interpreting the grounds. Where the meaning is not clear, the grounds must be held to be so vague as to render it difficult if not impossible for the detenu to make an adequate representation. AIR 1953 SC 318.

15.  In a case before it, the Hon’ble Apex Court observed to say that, Para 14: The contention that the grounds are vague requires some clarification. What is meant by vague ? Vague can be considered as the antonym of 'definite.' If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case.

16.  If, on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act, as generally suggested. AIR 1951 SC 157.

17.  Whereas sections 18 and 23(2) of the impugned Act uses the expression “prima facie” in respect of the “satisfaction of the Magistrate” concerned, and empowers the presiding Magistrate to pass various Orders, including ex-parte Orders, it is mystifying, mysterious, baffling, puzzling, strange, incomprehensible, unfathomable, bizarre and curious, as how a Magistrate could ever reach to any satisfaction as contemplated and pass any Order, in the absence of any pleadings of any nature.

18.  Whereas Section 31(3) mandates that while framing charges under sub-sec. (1) i.e. regarding the alleged breach of the Order of the Court, in the absence of pleadings of material facts, and attending circumstances under which the act of commission or omissions were alleged to have been committed, it is mystifying, mysterious, baffling, puzzling, strange, incomprehensible, unfathomable, bizarre and curious, as how a Magistrate could ever frame charges as contemplated u/s 31(1).

19.  It is equally shocking that trial Courts are entertaining and passing Orders based on Applications made in Form II.

20.  Howsoever laudable objects the impugned Act may be carrying, the elementary requirements of dispensation of justice cannot be dispensed with.

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