RELIEFS UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Reliefs in form of Protection Orders,Monetary Reliefs, Custody Orders, Compensation Orders can be availed under provisions of Protection of Women from Domestic Violence Act, 2005.

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 to held or enjoyed by both the parties , jointly by the aggrieved person and the respondent or singly by he 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 dependents, 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.

The first requirement of victim of domestic violence is protection from further incidents of domestic violence. Such protection is required not only for the aggrieved person but also for her children, dependents and relatives.

Magistrate is empowered to pass various kinds of protection orders against the Respondents under Section 18 of the Act. Before passing protection orders, the magistrate has to grant opportunity of being heard to the aggrieved person as well as the respondent. After hearing both the parties if the magistrate is prima facie satisfied that domestic violence has taken place or likely to take place, the magistrate can pass protection orders.

Protection orders are preventive and protective in nature. The power of the magistrate to pass protection orders are vast and same depends on the facts and circumstances of the case and reliefs prayed by the aggrieved person in the application under Section 12 of the Act. Magistrate can pass following kind of protection orders:

• Prohibiting acts of domestic violence by granting an injunction against the Respondents from repeating any act of domestic violence
• Prohibiting the respondent(s) from entering the school/college/workplace
• Prohibiting the aggrieved person from going to her school
• Prohibiting any form of communication by the Respondent with the aggrieved person
• Prohibiting alienation of assets by the Respondent
• Prohibiting operation of joint ban lockers/accounts by the Respondent and allowing the aggrieved person to operate the same
• Directing the respondents to stay away from the dependents/relatives/any other person of the aggrieved person to prohibit violence against them

The list is inclusive and the magistrate can pass other relevant protection orders based on unique facts and circumstances of the case.

19. Residence orders: (1) While disposing of an application under sub-section (1) of section 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 the 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 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 section (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 section (1) sub section (2) or sub section (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 protection order.

(6) While making an order under sub-section (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.

Domestic violence often leads to dispossession of the aggrieved person from shared household. Majority of women in India do not have economic resources and they are either dependent on parents or husband. Once the aggrieved person is thrown out of the shared household, aggrieved person has nowhere to go.

The magistrate is empowered to pass residence orders under Section 19 of the Act. The magistrate can pass residence orders of the following nature:

• Restrain the respondent from stopping the aggrieved person from residing in the shared household, whether or not the respondent has a legal or equitable interest in the shared household
• Direct the respondent to remove himself from the shared household. The magistrate can only order male respondent to remove himself from the shared household. The magistrate cannot order respondent, who is a woman, to remove herself from the shared household.
• Restrain the respondent not to disturb or interfere with aggrieved person’s peaceful enjoyment of shared household, whether or not the respondent has a legal or equitable interest in the shared household
• Restrain the respondent or any of his relative from entering that portion of the household, where the aggrieved person resides
• Restrain the respondent from disposing of or alienating the shared household, wherein the aggrieved person is residing
• Restrain the respondent from renouncing his rights in the shared household without permission of the magistrate
• If the aggrieved person’s residence is rented property then either to ensure payment of rent or secure any other suitable alternative accommodation which offers the aggrieved person the same security and facility as the earlier residence
• Restrain the respondent from any loan against the house/property in which the aggrieved person is residing or to mortgage it or create any other financial liability involving the property.
• Impose on the respondent obligations relating to discharge of rent and other payments having regard to financial needs and resources of the parties
• Direct the respondent to return stridhan, or any other property or valuable security to the aggrieved person

Magistrate is empowered impose any additional conditions and pass directions for safety for the aggrieved person or any child of such aggrieved person.

The magistrate may require the respondent to execute a bond with or without sureties for preventing commission of domestic violence. Any such order is deemed to be in nature of Code of Criminal Procedure, 1973 and has to be dealt with accordingly. It is pertinent to mention that Chapter VIII of the Code of Criminal Procedure deals with security for keeping peace and for good behavior which runs from Sections 106 and 124. In these sections, it is provided that for keeping peace and maintaining good behavior, a person can be directed by a magistrate to execute a bond with or without sureties and in case of non-compliance of such order, that person can be detained into custody.

Magistrate is empowered under the Act to restore the possession of portion of shared household even after the aggrieved person has left the matrimonial home. The High Court of Rajasthan in Rakesh vs. Rajnesh @ Manto 2012(1)RCR(Criminal)289 has held as under:

6. A bare perusal of the said provision clearly reveals that while sub-clause (1) lays down the different orders which may be passed, sub-clause (2) bestows a residuary power on the court to pass any other direction which it may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. The said sub-clause would naturally take its colours from Sub-clause (1). This is more so, as Section 18 of the Act already deals with “protection orders”, yet Sub-clause (2). also deals with the order which are reasonably, necessarily “to protect or to provide for the safety of the aggrieved person”. Obviously, Section 18 of the Act and Section 19(2) of the Act could not cover the same area. In case it is interpreted that Section 18 of the Act and Section 19(2) of the Act do cover the same area, it will produce redundancy in the Act. It is, indeed, a settled principle of rule of interpretation that an interpretation which will make a provision either otiose or redundant should be avoid. Therefore, the words “to protect or to provide for safety” would necessarily have to be interpreted as to protect and to provide safety to the aggrieved person vis-a-vis residential accommodation. Hence, the learned Magistrate has ample power to direct that the aggrieved person be given accommodation in the shared household, although the aggrieved person may have left the matrimonial home or the shared household many years ago. The intention of the laws, which are in favour of women, is to protect the socio-economic rights of women. After all, the condition of women in this country is not only precarious, but is also pitiable. In’ order to protect a woman, who has been deprived of her matrimonial home and who may face certain difficulty in her material home, Sub-clause (2) gives ample power to the Magistrate to restore and to ensure that the aggrieved person has a sufficient and reasonable accommodation provided for in the shared household. Therefore, the first contention raised by the learned counsel for the petitioner is clearly unacceptable.

The Supreme Court in Samir Vidyasagar Bhardwaj vs. Nandita Samir Bhardwaj (2017)14SCC583 has observed that the magistrate is empowered to direct the Respondent to remove himself from the shared household.

11. Section 19(1)(b) of the Protection of Women Domestic Violence Act provides that the Court may direct the Appellant-husband to remove himself from the shared household. The order passed Under Section 19 of the Act seeks to maintain continued and undisturbed residence of the aggrieved party within the shared household and in pursuance of same it directs the Respondent to execute a bond with or without surety or secure an alternate accommodation for the aggrieved party and pay the rent for the same and restrains the Respondent from or renouncing property rights or valuable security of the aggrieved party.

12. The Family Court arrived at a finding that prima facie material was available on record to accept the allegation of the Respondent-wife on domestic violence wherein the concerned Judge had exercised his discretion Under Section 19(1)(b) of the Domestic Violence Act which provides that the Magistrate on being satisfied that domestic violence has taken place can remove the spouse from the shared household which in our opinion he has rightly done. Exercise of discretion by Family Court cannot be said to be perverse warranting interference. The High Court while declining to interfere with the order has also considered the factual and legal position.

ALTERNATE ACCOMODATION TO AGGRIEVED PERSON

The magistrate can direct the respondent to give alternate accommodation to the aggrieved person in facts and circumstances of the case. But the respondent cannot claim as of right to give alternate accommodation to the aggrieved person. Rajasthan High Court in Rakesh vs. Rajnesh @ Manto ; 2012(1)RCR(Civil)433 has observed as under:

9. Lastly, the discretion of the Magistrate cannot be cribbed, cabined and confined. It cannot be argued that merely because Section 19(1)(f) of the Act empowers the Magistrate to direct the respondent to provide alternate accommodation or to pay rent for the same to the aggrieved person, the powers of the Magistrate are confined only to Section 19(1)(f) of the Act. Such as contention, if accepted, would make other sub-clauses of section 19(1) of the Act redundant.

The Supreme Court has observed in S. R. Batra & ANR vs. Smt.Taruna Batra;(2007) 3 SCC 169 has held that order of alternative accommodation can only be made against the husband and not against the husband’s in laws.

21. Learned Counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives.

Delhi High Court in Ajay Kumar Jain vs. Baljit Kaur Jain 160(2009)DLT401 has held that wife can not have a right to particular property and can be provided alternate accommodation.

10. Learned Single Judge in the impugned order has laid great emphasis on the fact that both the appellant and the respondent had been originally residing in the suit property being the first floor. We, however, feel that a matrimonial home is a place where both the parties seek to reside and the object of protecting the same is that the wife should not be left homeless by any action of the husband. We are in agreement with the submission of learned Counsel for the appellant that the wife cannot have a right of living in a particular property and the same cannot become a clog on the property denying the right of the appellant to deal with the property when he is willing to provide an alternative matrimonial home. It has to be appreciated that the claim of the respondent is not to any title, but of residence in the home. The appellant and his brother seek separation. The brother of the appellant cannot be denied his right to realize the best value for his share of the property or get enjoyment of a demarcated share. The brother of the appellant owes no obligation to the respondent. We are, thus, unable to agree with the conclusion of learned Single Judge that there should be a blanket injunction against the appellant restraining him from alienating or selling the suit property other than partitioning it by way of metes and bounds. In fact, there is no merit in the cross-objections in this behalf of the respondent.

20. Monetary reliefs: (1) While disposing of an application under sub section (1) of section 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 earning;

(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 of the aggrieved person as well as her children, if any, including an order under or in addition to an order or maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for 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 sump payment or monthly payment of maintenance , as the nature and circumstances of the case may require,

(4)The Magistrate shall send a copy of the order of monetary relief made under sub-section (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-section (1).

(6) Upon the failure of the Respondent to make payment in terms of the order under sub-section (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.

Majority of women are dependent economically on husband or parents. Once a victim of domestic violence stops getting financial support from perpetrators of domestic violence her survival is at stake, as she needs money for day to day expenses and maintenance for herself and her children.

Section 20 provided monetary reliefs to the aggrieved person. The scope of monetary relief under Section 20 of this Act is much wider in comparison to Section 125 of the Code of Criminal Procedure. Section 125 of the Code of Criminal Procedure only provides for maintenance but Section 20 of the Protection of Women from Domestic Violence Act, 2005 provides for monetary relief against loss of earning, medical expenses, destruction, damage and removal of any property.

The magistrate under Section 20 has wide powers to grant monetary relief to the aggrieved person and this power is inclusive in nature. Monetary reliefs can be granted to the aggrieved person for the following:

• Monetary relief for the loss of earning
• Monetary relief for the medical expenses
• Monetary relief for loss caused due to destruction, damage, or removal of any property from the control of the aggrieved person;
• Monetary relief for maintenance for the aggrieved person as well as her children

The magistrate has to order a copy of order for monetary relief to be sent to the parties to the application and to the officer in charge of the police station.

If the respondent does not pay as per the order of the magistrate, the magistrate can direct the employer or the debtor of the respondent to pay directly to the aggrieved person a part of wages or salary or debt. Alternatively the magistrate can also direct the employer or the debtor of the respondent to deposit a part of the wages or salary or debt with the court. The said amount may be adjusted against the order of monetary relief.

MAINTENANCE TO THE AGGRIEVED PERSON

Provision of maintenance to woman and children are available under various legislations. Section 125 of the Code of Criminal Procedure, 1973 provides for maintenance interalia to wives and children. Section 24 of the Hindu Marriage Act also provides for maintenance to wife in suits pendent lite.

The magistrate has been empowered under Section 20 of the Act to grant maintenance to aggrieved person and her children. The reliefs available under this Act are in addition to other remedies available to the aggrieved person. Thus the aggrieved person can seek maintenance under this section even if she has filed application under section 125 of code of civil procedure, 1973 or any other law.

The magistrate can order for lump sum payment of maintenance or monthly payment of maintenance as per nature and circumstances of the matter.

Aggrieved person need not establish her case in terms of Section 125 of Code of Criminal Procedure, 1973. High Court of Chhattishgarh has held in Rajesh Kurre vs. Safurabai and Ors. 2009(1)MPHT37(CG) as under:

12. The golden rule of interpretation of statutes is that the words of a statute must prima facie be given their ordinary meaning. The words of provisions under Section 20 of the Act are clear, plain and unambiguous. The provisions are independent and are in addition to any other remedy available to the aggrieved under any legal proceeding before the Civil Court, Criminal Court or Family Court. The provisions are not dependent upon Section 125 of the Code or any other provisions of the Family Courts Act, 1984 or any other Act relating to award of maintenance. In case of award of maintenance to the aggrieved person under the provisions of the Act, the Court is competent to award maintenance to the aggrieved person and child of the aggrieved person in accordance with the provisions of Section 20 of the Act and the aggrieved person is not required to establish his case in terms of Section 125 of the Code. Learned Trial Court after arriving at a finding that the non-applicants are aggrieved as a result of domestic violence has awarded maintenance in accordance with Section 20 of the Act. The Trial Court has committed neither any illegality nor any infirmity while passing the order impugned.

In Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori (2014) 10SCC736 the Supreme Court has observed as under:

The monetary reliefs as stipulated under Section 20 is different from maintenance, which can be in addition to an order of maintenance under section 125 of Code of Criminal Procedure or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the the application under section 12 is in a domestic relationship with the respondent.

MAINTENANCE TO BE ADEQUATE, FAIR AND REASONABLE

Maintenance granted to the aggrieved person and her children cannot be bare minimum. The Supreme Court has consistently held that maintenance has to be consistent with the status of family in context of maintenance under Section 125 of Code of Criminal Procedure, 1973.

In Jasbir Kaur Sehgal vs. District Judge, Dehradun and Ors. (1997)7SCC7, the Supreme Court has held that amount of maintenance should be such as she can live in reasonable comfort considering her status and the mode of life- she was used to when she lived with her husband

8. Wife has no fixed abode of residence she says, she is living in Gurudwara with her eldest daughter for safety. On the other hand husband has sufficient income and a house to him. Wife has not claimed any litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the Courts. No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life- she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs. 5,000/- per month payable by respondent-husband to the appellant-wife.

The Supreme Court in Chaturbhuj vs. Sita Bai (2008)2SCC316 has observed that amount of maintenance should be neither luxurious nor penurious but what is consistent with status of a family.

8. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi 1975CriLJ40 it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.

It has been specifically included under this Act that 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. In P.K. Nagrajan vs. N. Jeyrani;Crl.R.C.(MD).No.570 of 2013 the Madras High Court has observed as under:

16. Section 20 (2) of the Act casts a duty upon the Court to award a fair, adequate and reasonable maintenance while keeping in mind the standard of living to which the aggrieved person has used to. In the present case since the respondent wife had lived in the USA, naturally she was used to a high standard of living. Therefore, the maintenance of $ 2000 per month is most fair, and reasonable.

LIABILITY TO PAY MAINTENANCE NOT LIMITED TO HUSBAND ONLY

High Court of Madhya Pradesh in Ramu Singh Tomar and Ors. vs. Bhuri Bai and Ors. III(2017)DMC581MP has held that use of word ‘respondent’ cannot be given restricted meaning in Section 20.

32. Thus, it is clear that monetary relief is different from maintenance, therefore, it cannot be said that in view of Section 20(1)(d) of The Act, 2005 merely because it has been mentioned that the monetary relief would not be limited to maintenance under Section 125 of Cr.P.C. or any other law for the time being in force, therefore, the monetary relief on monthly basis should be treated as personal obligation of husband. In fact monetary relief is awarded to an aggrieved person to meet expenses incurred and losses suffered by her as a result of the domestic violence. Therefore, the use of word “respondent” in Section 20 cannot be given restricted meaning for the purposes of grant of monetary relief on monthly basis. The submission made by the Counsel for the applicants cannot be accepted that as the context otherwise provides, therefore, a restricted meaning should be given to the word “respondent” and the word “respondent” should be restricted to “husband” only. As the word “respondent” has been used in Section 20 of The Act, 2005, therefore, it contains the same meaning which is given in Section 2(q) of The Act, 2005 and thus, the applicant No. 1 is also liable to pay monthly monetary relief, as granted by the Appellate Court.

DIRECTIONS IN RAJNEESH VS NEHA

The Supreme Court has isssued several directions in Rajneesh Vs Neha (Criminal Appeal 730 /2020 ) on aspect of maintenance. Where several claims of maintenance have been made before different authorities, the Court would consider adjustment or set off. Affidavits of Assets and liabilities have to be filed by both the parties. Maintenance has to beawarded from date of application.

21. Custody Orders: Notwithstanding anything contained in any other law for the time being in force , the Magistrate may, at any stage of hearing of Application for protection order or for any other relief under this Act, grant temporary custody of any child or children to the aggrieved person or the person making an application her behalf and specify, if necessary, the arrangements for visit of such child or children by the Respondent.

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

The magistrate under this Act has been empowered to grant temporary custody of any child or children to the aggrieved person or to person making an application on her behalf. The magistrate can also make arrangements for visit of such child or children by the respondent. The magistrate may not grant rights to visit to the respondent if the magistrate is of the opinion that such visits can be harmful to the interests of the child or children.

The magistrate can only grant temporary custody of any child to the aggrieved woman. The magistrate cannot grant permanent custody to the aggrieved woman. For permanent custody of child, the aggrieved person has to approach appropriate forum.

WHETHER TEMPORARY CUSTODY CAN EXTEND BEYOND PROCEEDINGS

High Courts have expressed different views on whether temporary custody of child can extend beyond life of Proceedings before the magistrate.

High Court of Gujarat in Dhaval Rajendrabhai Soni vs. Bhavini Dhavalbhai Soni and Ors.; (2011)3GLR1965, has held that temporary custody order can not be equated with interim order. The custody order passed by the magistrate can be operative even beyond the conclusion of litigation before the Magistrate.

15. Viewed from this angle, the power of the Magistrate under Section 21 of the Act, becomes crucial which empowers learned Magistrate notwithstanding anything contained in any other law for the time-being in force, to grant temporary custody of the child to the aggrieved person at any stage of hearing of the application for protection order or for any other reliefs under the Act. In essence, therefore, in any proceedings under the Act, Magistrate is empowered to grant temporary custody of the child to the aggrieved person. It can be easily appreciated that said power assumes significance when looked from angle of wife or any other woman approaching the Magistrate seeking protection against the domestic violence by husband, his family members or other relatives. A small child to a mother is extremely precious. If mother is separated from her child, her resistance is most likely to break down. It is in this regard that learned Magistrate is empowered to pass custody orders, notwithstanding anything contained in any other law for the time-being in force. Such powers of Magistrate read with Section 23 of the Act would include power to pass interim as well as ex-parte orders. It is, therefore, of great significance and importance that Magistrates while dealing with the application of an aggrieved person seeking custody of her child deal with the situation promptly and bearing in mind the objects and purpose of the Act and also bearing in mind that mother when separated from child is likely to agree to any terms and conditions, not to resist domestic violence from husband or other family members.

16. Significantly, the Legislature has, therefore, used words temporary custody and not interim custody. This is important since by virtue of Section 23 of the Act in any case, learned Magistrate has power to pass interim order which he otherwise can pass finally. Term temporary custody in Section 21 is used in juxtaposition to the term interim order used elsewhere in Section 23 of the Act. It thus becomes clear that learned Magistrate can pass an order of custody in favour of an aggrieved person by way of temporary measure not necessarily in the nature of interim order which can have life only upto life of the proceedings before him.

17. Having said so, I cannot lose sight of the fact that nowhere under the Act learned Magistrate is permitted to pass final order of custody and any order that learned Magistrate can pass must have limited validity either in terms of time or happening of an event. Learned Magistrate cannot pass order granting permanent custody of the child to the aggrieved person.

18. With above clarity, if one reverts to the facts of the case, learned Magistrate has in context of the custody provided that child will remain with the mother till the proceedings under the Guardians and Wards Act are concluded. To that extent, therefore, in my opinion, directions issued by the learned Magistrate do not suffer from lack of jurisdiction or power.

In Dr. Parijat Vinod Kanetkar And Ors vs. Mrs. Malika Parijat Kanetkar; 2017ALLMR(Cri)368 Bombay High Court has observed that the nature of the power is temporary and coterminous with the main application filed for protection or any other relief.

14. Above interpretation, in my view, receives a seal of approval in a way, when one considers the non-obstante clause contained in Section 21 of the DV Act, the purpose that it seeks to achieve and the nature of power it confers upon the Magistrate. The non-obstante clause unbounds the Magistrate from similar powers of other courts in other enactments and regardless of those powers, he can go about the issue of interim custody on his own. The purpose that this Section seeks to achieve is protection of the aggrieved person, for the time being from domestic violence, which is discernible from the condition prescribed for exercise of the interim custody power under Section 21 of the DV Act.

Pendency or filing of an application for protection order or any other relief under the DV Act is must and in such proceeding the issue of interim custody can be raised. The reason being that it is also an issue of domestic violence as it harms the mental health of an aggrieved person who maintains a perception and is capable of demonstrating at least in a prima facie manner, that welfare of the child is being undermined. The nature of the power is temporary and coterminous with the main application filed for protection or any other relief. It begins with filing of such main application and comes to an end with disposal of the main application or may merge with the final decision rendered in the proceeding. Such being the nature and purpose of power of the Magistrate under Section 21 of the DV Act, it would have to be said that it is separate and independent from and not covered by either of the parts of Section 7 of the Act, 1984. If such interpretation is not given to Section 21 , DV Act power, the Section itself can be rendered otiose in a given case and the Magistrate will be divested of his power to adjudicate upon that species of domestic violence issue which arises from jeopardizing the welfare of the child. Such is, however, not the intention of the legislature, rather, the interpretation made earlier is in consonance with the intention of the legislature and object of the DV Act to protect women from domestic violence.

In Sham @ Navnath Vasantrao Vs. Sau Yogita; 2015ALLMR(Cri)264 High Court of Judicature at Bombay has observed that the relief in respect of permanent arrangement for custody of child or children, which would have force even after disposal of the application for protection order or other reliefs, cannot be said to be contemplated by the Legislature, while framing Section 21 of the Act.

5. In order to understand the intention of the Legislature in using the phrase “at any stage of hearing of the application for protection order or for any relief under this Act”, it would be useful to refer to Section 19 and 20 of the Act relating to “Residence orders” and “Monetary reliefs” respectively, which commence with the expression, “While disposing of an application…..”, the Magistrate may pass such orders. As such, the Legislature has thoughtfully and consciously used different expressions in Sections 19 and 20 on one hand and in Section 21 on the other. Therefore, the expression “at any stage of hearing” used in Section 21 cannot be interpreted to mean “While disposing of an application…” as has been used in Section 19 and 20 of the Act. The language used in Section 21 is clear and unambiguous. There is no reason to take resort to purposive and liberal interpretation of the expression used in Section 21 to extend the “interim stage” to “final” one as has been done by the learned Additional Sessions Judge.

16. Likewise, the expression “temporary custody” cannot be interpreted to mean “permanent custody”. The aggrieved person can get permanent reliefs under Sections 18, 19 and 20 of the Act. No such permanent relief was contemplated by the Legislature in the matter of custody of children vide Section 21 of the Act. Therefore, no provision has been made for filing independent application for custody of child or children. It is only when an application for protection order or for any other relief under this Act is pending, at any stage of hearing of such application, the aggrieved person has been given right to seek temporary custody of the child or children. The relief in respect of permanent arrangement for custody of child or children, which would have force even after disposal of the application for protection order or other reliefs, cannot be said to be contemplated by the Legislature, while framing Section 21 of the Act.

VISITATION BY HUSBAND

Husband can file application for visitation of child even if the wife has not filed any application for custody of child. In Huidrom Ningol Maibam Ongbi Omila Devi vs. Inaobi Singh Maibam; (2011)3GLR1965 the Manipur High Court was of the view that application for visitation by husband was maintainable even if no application has been made by the wife for custody under Section 21 of this Act.

14. As I have already indicated that Section 21 is amenable to two interpretations as is being highlighted by the parties, in such event only that interpretation which advanced the object of the provision can be accepted. It is worthwhile to note that the Act was enacted to prevent the occurrence of domestic violence in the society and keeping in view that, several protection orders including the safety of the aggrieved person and the ‘child’ have been contemplated to be passed. Therefore, the cause of the safety of the aggrieved person or the child is always warrants to be taken into account in interpreting the provision. In such situation, if the interpretation given on behalf of the wife-aggrieved party is accepted, it will render the provision incomplete as in case where wife-aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favor of the aggrieved party, visitation right can be granted to the husband. But, if custody lies with the wife-aggrieved party, then the husband will have no remedy of visitation right if the interpretation as contemplated by the wife-aggrieved party is given effect to and thereby it can easily be said that interpretation given by the aggrieved party-wife will never advance the cause of the child.

15. On the other hand, if it is held that the husband, in absence of any application for grant of custody, can maintain his application for visitation right will advance the object of the provision as in case of child being in custody of the husband, application for custody can be filed by the wife wherein the husband can have a visitation right if order is of custody of child passed in favour of the aggrieved party. In other situation, when the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody as it has happened in the instant case. In that situation, husband will have remedy to have visitation right by filing application to that effect. Under the circumstances, I do find that the appellate court was quite justified in holding that even in absence of application for custody being there, by the aggrieved party, application of visitation right in terms of the proviso to Rule 21 can be maintained. Thus, I do not find any merit in the Criminal Revision Petition No. 16 of 2015. Hence, it is dismissed.

22. Compensation Order: 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 the Respondent.

Victims of domestic violence goes through mental torture and emotional distress and need to compensated for the same. Under this Section, compensation and damages can also be granted to the aggrieved person for the injuries including mental torture and emotional distress caused by acts of domestic violence committed by the Respondent. The Supreme Court has held in Saraswathy vs. Babu; AIR2014SC857 as under:

15. We are of the view that the act of the Respondent-husband squarely comes within the ambit of Section 3 of the PWD Act, 2005, which defines “domestic violence” in wide term. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force PWD Act, 2005 cannot be taken into consideration while passing an order. This is a case where the Respondent-husband has not complied with the order and direction passed by the Trial Court and the Appellate Court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the Appellant-wife. The Appellant-wife having being harassed since 2000 is entitled for protection orders and residence orders Under Section 18 and 19 of the PWD, Act, 2005 along with the maintenance as allowed by the Trial Court Under Section 20(d) of the PWD, Act, 2005. Apart from these reliefs, she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the Respondent-husband. Therefore, in addition to the reliefs granted by the courts below, we are of the view that the Appellant-wife should be compensated by the Respondent-husband. Hence, the Respondent is hereby directed to pay compensation and damages to the extent of Rs. 5,00,000/- in favour of the Appellant-wife.

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