Common Law

Impugned Provision / other anomaly Breach of Section / Article Section 19(b)(d) of the impugned Act Article 21 of the Constitution of India 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 responden...

Impugned Provision / other anomaly Breach of Section / Article Section 18(a)(c)(d) Article 19 and 21 of the Constitution of India; Section 18(c) – aggrieved person being a child, whereas aggrieved person is stated to be a woman; 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 pe...

Impugned Provision / other anomaly Breach of Section / Article Section 13 when read with Rules 12(2)(a)(b)(c) and section 23 of the impugned Act Breach of principles of natural justice; SECTION 13: Service of notice (1) A notice of the date of hearing fixed under Sec. 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. SECTION 23: Power to grant interim and ex parte orders (1) In any proceeding befo...

Impugned Provision / other anomaly Breach of Section / Article Section 3, the definition of “domestic violence” of the impugned Act Article 14 and 21 of the Constitution of India 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 clau...

Impugned Provision / other anomaly Breach of Section / Article Section 2 (q) of the impugned Act Article 14 of the Constitution of India Section 2 (q) "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 this Act: Provided that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against the relative of the husband or the male partner; Article14: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Argument The definition puts the “relationship of Marriage” and “relationship in the nature of marriage” in one bracket. The “relationship in the nature of marriage” is an expression unknown to our matrimonial jurisprudence;...

Impugned Provision / other anomaly Breach of Section / Article Section 2(a) of the impugned Act Public Policy of India Section 2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. The Argument 1.       The impugned Act is against the public Policy of India, for, the impugned Act does not provide for any limitation for instituting the case under the impugned Act. 2.       Ordinarily, every civil action is subjected to law of limitations. The laws of limitation are founded on sound policy that a person cannot be subjected to litigation at the whims and fancies of the other party. 3.       The doctrine of limitation is based on broad consideration, in the words of Abbott, CJ, in the case of Battley versus Fa...

Impugned Provision / other anomaly Breach of Section / Article Rule 12(4) framed under the Rules, 2006, framed under the impugned Act Article 19(1)(a) and 21 of the Constitution of India RULE 12: Means of service of notices (1) The notices 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 other 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 ...