PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012
Section 1 Short title and extent
- This Act may be called
- the Protection of Children from Sexual Offences Act 2012
- It extends
- to the whole of India except Jammu and Kashmir
Section 2 Definitions
- “child” means
- any person below the age of eighteen years
- “domestic relationship“
- shall have the same meaning
- as in the Protection of Women from Domestic Violence Act 2005
- “shared household” means
- a household where the charged person lives or has lived
- in a domestic relationship with the child
- “child pornography” means
- any visual depiction of sexually explicit conduct
- involving a child
- which include photograph, video, digital or computer generated image indistinguishable from an actual child, and
- image created, adapted, or modified, but appear to depict a child
Chapter II
Sexual Offences against Children
Section 3 Penetrative sexual assault
- A person commits “penetrative sexual assault“
- if
- he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or
- he inserts, to any extent, any object or a part of the body, into the vagina, urethra or anus of the child or
- he applies his mouth to the penis, vagina, anus, urethra of the child
Section 4 Punishment for penetrative sexual assault
- Whoever
- commits penetrative sexual assault
- shall be punished
- with imprisonment of: minimum 10 years, maximum life imprisonment and
- also with fine
Section 5 Aggravated penetrative sexual assault
- Whoever
- being a police officer
- commits penetrative sexual assault on a child
- within the limits of the police station at which he is appointed or
- in the premises of any station house, whether or not situated in the police station to which he is appointed or
- in the course of his duties or otherwise or
- where he is known as a police officer
- is said to commit aggravated penetrative sexual assault
- Whoever
- being a member of the armed forces or security forces
- commits penetrative sexual assault on a child
- within the area to which he is deployed or
- in any area under the command of his force or
- in the course of his duties or otherwise or
- where he is known as a member of security or armed forces
- is said to commit aggravated penetrative sexual assault
- Whoever
- being a public servant
- commits penetrative sexual assault on a child
- is said to commit aggravated penetrative sexual assault
- Whoever
- being on management or staff of a jail, remand home, protection home or other place of custody or care established under law
- commits penetrative sexual assault on a child
- being inmate of such jail, remand home, protection home or other place
- is said to commit aggravated penetrative sexual assault
- Whoever
- being on management or staff of a hospital, whether Govt or private
- commits penetrative sexual assault on a child
- in that hospital
- is said to commit aggravated penetrative sexual assault
- Whoever
- being on management or staff of an educational or religious institution
- commits penetrative sexual assault on a child
- in that institution
- is said to commit aggravated penetrative sexual assault
- Whoever
- commits gang penetrative sexual assault on a child
- commits aggravated penetrative sexual assault
Explanation
- When
- a child is subjected to sexual assault
- by one or more persons of a group in furtherance of their common intention
- each of such persons
- shall be deemed to have committed gang penetrative sexual assault and
- each of such persons
- shall be liable for that act in the same manner as if it were done by him alone
- Whoever
- commits penetrative sexual assault on a child
- using deadly weapons, fire, heated substance or corrosive substance
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault
- causing grievous hurt or causing bodily harm or injury to sexual organs of the child
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child
- which
- physically incapacitates the child or causes the child to become mentally ill
- makes the child pregnant as a consequence of sexual assault
- inflicts the child with HIV or other life threatening disease which may render the child physically incapacitated or mentally ill
- commits aggravated penetrative sexual assault
- Whoever
- taking advantage of a child’s mental or physical disability
- commits penetrative sexual assault on the child
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child
- more than once or repeatedly
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child below twelve years
- commits aggravated penetrative sexual assault
- Whoever
- being a relative of a child through blood or adoption or marriage or guardianship or in foster care or
- having a domestic relationship with a parent of a child or
- who is living in the same or shared household with a child
- commits penetrative sexual assault on such child
- commits aggravated penetrative sexual assault
- Whoever
- being in ownership or management or staff of any institution providing services to a child
- commits penetrative sexual assault on the child
- commits aggravated penetrative sexual assault
- Whoever
- being in a position of trust or authority of a child
- commits penetrative sexual assault on the child
- in an institution or home of the child or anywhere else
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child
- knowing that the child is pregnant
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child and
- attempts to murder the child
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child
- in the course of communal or sectarian violence
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child and
- who has been previously convicted under this Act or of any sexual offence under any other law
- commits aggravated penetrative sexual assault
- Whoever
- commits penetrative sexual assault on a child and
- makes the child to strip or parade naked in public
- commits aggravated penetrative sexual assault
Section 6 Punishment for aggravated penetrative sexual assault
- Whoever
- commits aggravated penetrative sexual assault
- shall be punished
- with rigorous imprisonment of not less than twenty years but which may extend to imprisonment for life and also fine
- or with death
Section 7 Sexual assault
- Whoever, with sexual intent
- touches the vagina, penis, anus or breast of the child or
- makes the child touch the vagina, penis, anus or breast of such person or any other person or
- does any other act with sexual intent which involves physical contact without penetration
- is said to commit sexual assault
Section 8 Punishment for sexual assault
- Whoever
- commits sexual assault
- shall be punished
- with imprisonment of not less than three years but which may extend to five years and also fine
Section 9 Aggravated sexual assault
- Whoever
- being a police officer
- commits sexual assault on a child
- within the limits of the police station where he is appointed or
- in the premises of any station house whether or not situated in the police station to which he is appointed or
- in the course of his duties or otherwise or
- where he is known as a police officer
- is said to commit aggravated sexual assault
- Whoever
- being a member of the armed forces or security forces
- commits sexual assault on a child
- within the area to which he is deployed or
- in any area under the command of security or armed forces or
- in the course of his duties or otherwise or
- where he is known as a member of security or armed forces
- is said to commit aggravated sexual assault
- Whoever
- being a public servant
- commits sexual assault on a child
- is said to commit aggravated sexual assault
- Whoever
- being on management or staff of a jail or protection home or other place of custody established under law
- commits sexual assault on a child
- being inmate of such jail or remand home or protection home or other place
- is said to commit aggravated sexual assault
- Whoever
- being on management or staff of a hospital, whether Govt or private
- commits sexual assault on a child
- in that hospital
- is said to commit aggravated sexual assault
- Whoever
- being on management or staff of an educational or religious institution
- commits sexual assault on a child
- in that institution
- is said to commit aggravated sexual assault
- Whoever
- commits gang sexual assault on a child
- is said to commit aggravated sexual assault
Explanation
- when
- a child is subjected to sexual assault
- by one or more persons of a group in furtherance of their common intention
- each of such persons
- shall be deemed to have committed gang sexual assault and
- each of such persons
- shall be liable for that act in the same manner as if it were done by him alone
- Whoever
- commits sexual assault on a child
- using deadly weapons, fire, heated substance or corrosive substance
- is said to commit aggravated sexual assault
- Whoever
- commits sexual assault
- causing grievous hurt or causing bodily harm to sexual organs of the child
- is said to commit aggravated sexual assault
- Whoever
- commits sexual assault on a child
- which
- physically incapacitates the child or causes the child to become mentally ill
- makes the child pregnant as a consequence of sexual assault
- inflicts the child with HIV or other life threatening disease which may render the child physically incapacitated or mentally ill
- commits aggravated sexual assault
- whoever
- taking advantage of a child’s mental or physical disability
- commits sexual assault on the child
- commits aggravated sexual assault
- Whoever
- commits sexual assault on a child
- more than once or repeatedly
- commits aggravated sexual assault
- Whoever
- commits sexual assault on a child below twelve years
- commits aggravated sexual assault
- Whoever
- being a relative of a child through blood or adoption or marriage or guardianship or in foster care or
- having a domestic relationship with a parent of a child or
- who is living in the same or shared household with a child
- commits sexual assault on such child
- commits aggravated sexual assault
- Whoever
- being in ownership or management or staff of any institution providing services to a child
- commits sexual assault on the child
- commits aggravated sexual assault
- Whoever
- being in a position of trust or authority of a child
- commits sexual assault on the child
- in an institution or home of the child or anywhere else
- commits aggravated sexual assault
- Whoever
- commits sexual assault on a child
- knowing that the child is pregnant
- commits aggravated sexual assault
- Whoever
- commits sexual assault on a child and
- attempts to murder the child
- commits aggravated sexual assault
- Whoever
- commits sexual assault on a child
- in the course of communal or sectarian violence
- commits aggravated sexual assault
- Whoever
- commits sexual assault on a child and
- who has been previously convicted under this Act or of any sexual offence under any other law
- commits aggravated sexual assault
- Whoever
- commits sexual assault on a child and
- makes the child to strip or parade naked in public
- commits aggravated sexual assault
Section 10 Punishment for aggravated sexual assault
- Whoever
- commits aggravated sexual assault
- shall be punished
- with imprisonment of not less than five years which may extend to seven years and also fine
Section 11 Sexual harassment
- A person
- commits sexual harassment upon a child
- when such person with sexual intent
- utters any word or makes any sound or
- makes any gesture or exhibits any object or part of body
- with intention that such word or sound shall be heard or such gesture or object or part shall be seen by the child or
- makes a child exhibit his body
- so as it is seen by such person or any other person or
- shows any object to a child for pornographic purposes or
- repeatedly follows or watches or contacts a child
- directly or through electronic, digital or other means or
- threatens to use a real or fabricated depiction
- of any part of a child’s body or his involvement in a sexual act
- through electronic, film or digital or other mode or
- entices a child for pornographic purposes
Section 12 Punishment for sexual harassment
- Whoever
- commits sexual harassment upon a child
- shall be punished
- with imprisonment of upto three years and also fine
Chapter III
Using Child for Pornographic Purposes and Punishment Therefor
Section 13 Use of child for pornographic purposes
- Whoever
- uses a child in any form of media
- including advertisement telecast by television channels or internet or any other electronic form or printed form
- whether or not such programme or advertisement is intended for personal use or for distribution
- for the purposes of sexual gratification
- which includes-
a. representation of the sexual organs of a child
b. usage of a child engaged in real or simulated sexual acts
c. indecent or obscene representation of a child
- shall be guilty of the offence of using a child for pornographic purposes
Section 14 Punishment for using child for pornographic purposes
- Whoever
- uses a child or children for pornographic purposes
- shall be punished with imprisonment of minimum: five years and also fine and
- in the event of second or subsequent conviction
- with imprisonment of minimum seven years and also fine
Chapter V
Procedure for Reporting of Casts
Section 19 Reporting of offences
- Any person, including the child
- having apprehension that an offence under this Act is likely to be committed or
- having knowledge that such an offence has been committed
- shall provide such information to
- the Special Juvenile Police Unit or
- the local police
Section 19 (5)
- Where
- the Special Juvenile Police Unit or local police is satisfied
- that the offended child is in need of care and protection
- it shall make immediate arrangement
- to give him the prescribed care and protection
- including admitting the child into shelter home or to the nearest hospital
- within twenty-four hours of the report
Section 19 (6)
- Special Juvenile Police Unit or local police
- shall report the matter
- including need of the child for care and protection and steps taken in this regard
- to the Child Welfare Committee and the Special Court
- within twenty-four hours
- No person
- shall incur any liability, whether civil or criminal
- for giving the abovesaid information in good faith
Section 20 Obligation of media to report cases
- Any personnel
- of the media or hotel or hospital or club or photographic facilities
- on coming across any material or object
- which is sexually exploitative of the child through any medium
- shall provide such information
- to the Special Juvenile Police Unit or local police
Section 21 Punishment for failure to report or record a case
- Any person
- who fails to report commission of an offence u/s 19(1) or 20 or
- who fails to record such offence u/s 19(2)
- shall be punished
- with imprisonment upto six months or fine or both
Section 22 Punishment for false complaint or false information
- Any person
- who makes false complaint or provides false information against any person of an offence u/s 3, 5, 7 and 9
- solely with intention to humiliate, extort or threaten or defame him
- shall be punished
- with imprisonment upto six months or fine or both
- Where
- a false complaint has been made or false information has been provided by a child
- no punishment
- shall be imposed on such child
Section 23 Procedure for media
- No person
- shall make any report on any child from any media or photographic facilities
- which may have the effect of lowering his reputation or infringing upon his privacy
- without having complete and authentic information
- No reports in any media
- shall disclose the identity of a child
- including his name, address, photograph, family details, school or other particulars which may lead to disclosure of his identity
Chapter VII
Special Courts
Section 28 Designation of Special Courts
- For providing a speedy trial:
- State Govt shall designate for each district
- in consultation with Chief Justice of High Court
- a Court of Session
- to be a Special Court to try offences under this Act
- While trying an offence under this Act:
- a Special Court
- shall also try an offence
- with which the accused may be charged under CrPC at the same trial
Section 29 Presumption as to certain offences
- Where
- a person is prosecuted for committing or abetting or attempting an offence u/s 3, 5, 7 and 9
- the Special Court shall presume
- that such person has committed or abetted or attempted the offence
- unless the contrary is proved
Section 30 Presumption of culpable mental state
- In any prosecution for any offence under this Act
- which requires a culpable mental state of the accused
- Special Court shall presume
- the existence of such mental state
- but it shall be a defence for the accused
- to prove the fact that he had no such mental state with respect to the act charged as an offence
- For this section:
- A fact is said to be proved
- only when the Special Court believes it to exist beyond reasonable doubt and
- not merely when its existence is established by a preponderance of probability
Chapter VIII
Procedure and Powers of Special Courts and Recording of Evidence
Section 35 Recording of evidence and disposal of case
- Evidence of the child
- shall be recorded within thirty days of the Special Court taking cognizance and
- reasons for delay if any
- shall be recorded by the Special Court
- The Special Court
- shall complete the trial, as far as possible
- within one year from the date of taking cognizance
Section 36 Child not to see accused at the time of testifying
- The Special Court shall ensure
- that the child is not exposed in any way to the accused at the time of recording of evidence
- while at the same time ensuring
- that the accused is in a position
- to hear the statement of the child and to communicate with his advocate
- Special Court may record the statement of a child
- through video conferencing or
- by utilising single visibility mirrors or curtains or any other device
Section 37 Trials to be conducted in camera
- The Special Court shall try cases
- in camera and
- in presence of parents of the child or any other person in whom the child has confidence
Proviso
- Where
- Special Court is of the opinion
- that the child needs to be examined at a place other than the court
- it shall proceed
- to issue a commission in accordance with section 284 of CrPC
Chapter IX
Miscellaneous
Section 39 Child to take assistance of experts etc.
- State Govt shall prepare guidelines
- for use of non-governmental organisations, professionals and experts or
- persons with knowledge of psychology, social work, physical or mental health and child development
- to be associated with pre-trial and trial stage
- to assist the child
Section 40 Right to take assistance of legal practitioner
- Subject to section 301 CrPC:
- the family or guardian of the child
- shall be entitled to assistance of a legal counsel of their choice for any offence under this Act
Proviso
- If
- the family or guardian of the child are unable to afford a legal counsel
- the Legal Services Authority
- shall provide a lawyer to them
Section 42 Alternative punishment
[As substituted in 2013 and amended in 2018]
- Where
- an act or omission constitutes an offence under this Act and
- also u/s 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E or 509 of IPC
- the offender shall be liable to punishment
- under this Act or under IPC
- whichever provides for greater punishment
Note: Section 42
- was substituted by the Criminal Law (Amendment) Act 2013 and
- was amended by the Criminal Law (Amendment) Act 2018
Section 42A Act not in derogation of any other law
- Provisions of this Act
- shall be in addition to and not in derogation of provisions of any other law
- In case of any inconsistency:
- provisions of this Act
- shall have overriding effect on provisions of any such law to the extent of inconsistency
Note:
- Section 42A
- was inserted by the Criminal Law (Amendment) Act 2013
Section 43 Public awareness about Act
- Central Govt and every State Govt
- shall take all measures
- to ensure that provisions of this Act are given wide publicity through media
- including television, radio and print media
- to make
- the general public, children and their parents and guardians aware of these provisions
Section 44 Monitoring of implementation of Act
- Implementation of this Act shall be monitored
- by the National Commission for Protection of Child Rights or
- by the State Commission for Protection of Child Rights, as the case may be
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
Short title
Section 1(1)
- This Act may be called
- Protection of Women from Domestic Violence Act 2005
EXTENT
Section 1(2)
- It extends to the whole of India
- Entry 87 of the Fifth Schedule to the Jammu and Kashmir Reorganisation Act, 2019 provides as under:
- In sub-section (2) of section 1, words, “except the State of Jammu and Kashmir” shall be omitted in the Protection of Women from Domestic Violence Act 2005.
- The Fifth Schedule lists out the Central Laws which have been made applicable to the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
DEFINITIONS
Section 2
- “aggrieved person” means
- a woman
- who is [or has been] in a domestic relationship with the respondent and
- who alleges to have been subjected to an act of domestic violence
- a woman
- “child” means
- any person below the age of eighteen years and
- includes
- any adopted, step or foster child
- “domestic incident report” means
- a report made in prescribed form
- on receipt of a complaint of domestic violence from an aggrieved person
- “domestic relationship” means
- a relationship between two persons
- who live [or have lived together] in a shared household
- when they
- are related by consanguinity or marriage or
- are related through a relationship in the nature of marriage or
- are related through adoption or
- are family members living together as a joint family
- Consanguinity
- the fact of being descended from the same ancestor
- “Magistrate” means
- Judicial Magistrate first class or Metropolitan Magistrate
- exercising jurisdiction where
- the aggrieved person resides [temporarily or otherwise] or
- respondent resides or
- domestic violence is alleged to have taken place
- “monetary relief” means
- compensation
- which Magistrate may order the respondent to pay to the aggrieved person
- at any stage during hearing
- to meet expenses incurred and
- to meet losses suffered by the aggrieved person as a result of the domestic violence
- “respondent” means
- any adult male person
- who is [or has been] in a domestic relationship with the aggrieved person and
- against whom aggrieved person has sought relief
Proviso
- An aggrieved
- wife or
- female living in a relationship in the nature of marriage
- may also file a complaint
- against a relative of the husband or male partner
- “shared household” means
- a household
- where the person aggrieved lives [or has lived] in a domestic relationship
- either singly or along with the respondent …
- and includes
- such a household
- whether owned or tenanted either jointly by the aggrieved person and respondent or singly
- having any right, title, interest or equity in it
- such a household
- which may belong to joint family of respondent
- irrespective of any such right, title or interest
DEFINITION OF DOMESTIC VIOLENCE
Section 3
- Any
- act, omission or conduct of respondent
- shall constitute domestic violence…
(a)
- in case it
- harms or injures or endangers
- health, safety, life, limb or well‑being of the aggrieved person
- whether mental or physical or
- tends to do so
- harms or injures or endangers
- includes
- causing physical abuse, sexual abuse
- verbal and emotional abuse and economic abuse
(b)
- in case it
- harasses, harms or endangers the aggrieved person
- to coerce her or any person related to her
- to meet any unlawful demand for dowry or other property or valuable security
- harasses, harms or endangers the aggrieved person
(c)
- in case it
- has the effect of threatening the aggrieved person or any person related to her
- by any conduct mentioned in clause (a) or (b)
(d)
- in case it
- otherwise injures or causes harm to the aggrieved person
- whether physical or mental
Explanation I
- “physical abuse” means
- an act or conduct of a nature
- to cause bodily pain or danger to life, limb or health
- to impair health or development of aggrieved person
- an act or conduct of a nature
- includes
- assault, criminal intimidation and criminal force
- “sexual abuse” includes
- conduct of a sexual nature
- that abuses, humiliates, degrades or otherwise violates the dignity of woman
- conduct of a sexual nature
- “verbal and emotional abuse” includes
- insults, ridicule, humiliation, name calling and
- insults or ridicule specially with regard to not having a child or a male child and
- repeated threats to cause physical pain
- to any person in whom aggrieved person is interested
- “economic abuse” includes
(a)
- deprivation of any economic or financial resources
- to which aggrieved person is entitled under any law or custom
- which the aggrieved person requires out of necessity
- including, but not limited to
- household necessities for the aggrieved person and her children
- 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, valuables, shares, securities 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 aggrieved person or her children
- her stridhan
- any other property jointly or separately held by aggrieved person
(c)
- prohibition or restriction
- to continued access to resources or facilities
- which aggrieved person is entitled to use or enjoy
- by virtue of the domestic relationship
- including access to the shared household
Information to Protection Officer
Section 4 (1)
- Any person who has reason to believe
- that an act of domestic violence
- has been committed or
- is likely to be committed
- that an act of domestic violence
- may give information about it
- to the concerned Protection Officer
Section 4(2)
- No liability, civil or criminal
- shall be incurred by any person
- for giving in good faith of such information
Duties of police officers and service providers
Section 5
- A police officer, Protection Officer, service provider or Magistrate
- who has received a complaint of domestic violence or
- who is otherwise present at an incident of domestic violence or
- when incident of domestic violence is reported to him
- shall inform the aggrieved person..
(a)
- of her right to make an application
- for obtaining a relief by way of
- a protection order
- a residence order
- an order for monetary relief
- a custody order
- a compensation order
(b)
- of availability of services
- of service providers
(c)
- of availability of services
- of Protection Officers
(d)
- of her right to free legal services
- under Legal Services Authorities Act 1987
(e)
- of her right to file a complaint u/s 498A IPC
- wherever relevant
Proviso
- This Act does not relieve a police officer
- from his duty to proceed in accordance with law
- upon receipt of information as to commission of a cognizable offence
Duties of shelter homes
Section 6
- If
- an aggrieved person or
- a Protection Officer or a service provider, on her behalf
- requests in charge of a shelter home
- to provide shelter to her
- such person shall provide shelter
- to the aggrieved person in the shelter home
Duties of medical facilities
Section 7
- If
- an aggrieved person or
- a Protection Officer or a service provider, on her behalf
- requests in charge of a medical facility
- to provide any medical aid to her
- such person shall provide medical aid
- to the aggrieved person in the medical facility
Appointment of Protection Officers
Section 8 (1)
- State Govt
- shall appoint
- such number of Protection Officers in each district
- as it may consider necessary and
- shall also notify
- the area within which a Protection Officer
- shall exercise his powers and perform his duties
Section 8 (2)
- Protection Officers
- shall as far as possible be women and
- shall possess prescribed qualifications and experience
Duties and functions of Protection Officers
Section 9 (1)
- It shall be the duty
- of the Protection Officer
(a)
- to assist the Magistrate
- in discharge of his functions under this Act
(b)
- to make a domestic incident report to the Magistrate
- upon receipt of a complaint of domestic violence
- and forward copies thereof
- to in charge of the police station
- having jurisdiction over the place of domestic violence
- and to service providers in that area
- to in charge of the police station
(c)
- to make an application to the Magistrate
- if the aggrieved person so desires
- claiming relief for issuance of a protection order
(d)
- to ensure
- that the aggrieved person is provided legal aid
- under Legal Services Authorities Act 1987
(e)
- to maintain a list of all
- service providers providing legal aid or counselling
- shelter homes and
- medical facilities
- in a local area within jurisdiction of the Magistrate
(f)
- to make available a safe shelter home
- if the aggrieved person so requires
- and forward a copy of his report
- of having lodged aggrieved person in a shelter home
- to the police station and the Magistrate
- having jurisdiction over the shelter home
(g)
- to get aggrieved person medically examined
- if she has sustained bodily injuries
- and forward a copy of the medical report
- to the police station and the Magistrate
- having jurisdiction over the place of domestic violence
(h)
- to ensure
- that the order for monetary relief u/s 20 is complied with and executed
- in accordance with procedure under CrPC
Section 9 (2)
- The Protection Officer shall be
- under control and supervision of the Magistrate
SERVICE PROVIDERS
Section 10 (1)
- Any
- voluntary association registered under Societies Registration Act
- company registered under Companies Act or any other law
- with the objective of
- protecting rights and interests of women by lawful means
- including providing of legal aid, medical, financial or other assistance
- shall register itself with State Govt
- as a service provider
Section 10 (2)
- A service provider so registered
- shall have the power to
(a)
- record the domestic incident report
- if aggrieved person so desires
- and forward a copy thereof
- to the Magistrate and Protection Officer having jurisdiction
(b)
- get the aggrieved person
- medically examined
- and forward a copy of the medical report
- to the Protection Officer and the police station
- having jurisdiction over the place of domestic violence
(c)
- ensure that the aggrieved person
- is provided shelter in a shelter home
- if she so requires
- and forward a report of the lodging
- to the police station
- having jurisdiction over the place of domestic violence
Section 10 (3)
- No suit, prosecution or other legal proceeding
- shall lie against any service provider
- who is acting or purporting to act under this Act
- for anything which is in good faith done
- in exercise of powers or discharge of functions under this Act
- towards prevention of commission of domestic violence
Duties of Govt
Section11
- Central Govt and every State Govt
- shall take all measures to ensure that
(a)
- provisions of this Act are given wide publicity
- through public media
- including television, radio and print media
(b)
- Central Govt and State Govt officers
- including police officers and members of judicial services
- are given periodic sensitization and awareness training
- on issues addressed by this Act
APPLICATION TO MAGISTRATE
Section12 (1)
- An
- aggrieved person or
- Protection Officer or any other person, on her behalf
- may present an application to the Magistrate
- seeking one or more reliefs under this Act
Proviso
- Before passing any order on such application:
- Magistrate shall take into consideration
- any domestic incident report received by him
- from the Protection Officer or the service provider
Section12 (2)
- The relief sought for may include
- a relief for issuance of an order
- for payment of compensation or damages
- without prejudice to the right of such person
- to institute a suit for compensation or damages
- for injuries caused by acts of domestic violence
Proviso
- Where a decree for compensation or damages
- has been passed by court in favour of aggrieved person
- amount payable under an order by Magistrate under this Act
- shall be set off
- against the amount payable under such decree
- and the decree shall
- notwithstanding anything in CPC or any other law
- be executable for the balance amount
Section12 (4)
- Magistrate shall fix the first date of hearing
- which shall not ordinarily be beyond three days
- from the date of receipt of application by court
Section12 (5)
- Magistrate shall endeavour
- to dispose of every application u/s 12(1)
- within sixty days
- from the date of its first hearing
Service of notice
Section13 (1)
- A notice of the date of hearing fixed u/s 12
- shall be given by Magistrate to the Protection Officer
- who shall get it served
- by prescribed means on the respondent
- and on any other person as directed by Magistrate
- within a maximum period of two days or
- further reasonable time allowed by Magistrate
Section13 (2)
- A declaration of service of notice by Protection Officer
- shall be the proof that such notice was served
- unless the contrary is proved
Counselling
Section14 (1)
- Magistrate may
- at any stage of proceedings under this Act
- direct respondent or aggrieved person or both
- to undergo counselling with any member of a service provider
- who possesses prescribed qualifications and experience in counseling
Section14 (2)
- Where Magistrate has issued any such direction:
- he shall fix the next date of hearing
- within a period not exceeding two months
Assistance of welfare expert
Section15
- In any proceeding under this Act:
- Magistrate may secure services
- of such person as he thinks fit, preferably a woman
- whether related to the aggrieved person or not
- including a person engaged in promoting family welfare
- for assisting him in discharging his functions
Proceedings to be held in camera
Section16
- If Magistrate considers that
- circumstances of the case so warrant
- and
- either party to the proceedings so desires
- he may conduct proceedings under this Act
- in camera
Right to reside in a shared household
Section17 (1)
- Notwithstanding anything in any other law:
- every woman in a domestic relationship
- shall have the right to reside in the shared household
- whether or not
- she has any right, title or beneficial interest in it
Section17 (2)
- The aggrieved person shall not be evicted or excluded
- from the shared household or any part of it
- by the respondent
- save in accordance with procedure established by law
PROTECTION ORDERS
Section18
- Magistrate may
- after giving aggrieved person and 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 commission of acts of domestic violence
(c)
- entering
- place of employment of the aggrieved person
- school or other place frequented by aggrieved person: if the person aggrieved is a child
(d)
- attempting to communicate in any form whatsoever
- with the aggrieved person
- including personal, oral, written, electronic or telephonic contact
(e)
- alienating any assets, operating bank lockers or bank accounts
- used or held by both parties jointly, or singly by respondent
- including her stridhan or other property held jointly or separately
- without leave of Magistrate
RESIDENCE ORDERS
Section19 (1)
- While disposing of an application u/s 12(1):
- Magistrate may, on being satisfied
- that domestic violence has taken place
- pass a residence order
(a)
- restraining respondent from dispossessing
- or in any other manner disturbing possession
- of the aggrieved person from the shared household
- whether or not respondent has a legal or equitable interest in the shared household
(b)
- directing the respondent
- to remove himself from the shared household
Proviso
- No such order shall be passed
- against any person who is a woman
(c)
- restraining 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 of the shared household
- or encumbering the same
(e)
- restraining the respondent
- from renouncing his rights in the shared household
- except with leave of Magistrate
(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 circumstances so require
Section19 (3)
- Magistrate may require from the respondent
- to execute a bond, with or without sureties
- for preventing commission of domestic violence
- Such order shall be deemed
- to be an order under Chapter VIII of CrPC
Section19 (5)
- While passing an order under this section:
- court may also pass an order
- directing officer-in-charge of the nearest police station
- to give protection to the aggrieved person or
- to assist her or the person making application on her behalf in implementation of the order
Section19 (6)
- While making an order under sub-section (1):
- Magistrate may impose on the respondent
- obligations relating to discharge of rent and other payments
- having regard to financial needs and resources of parties
Section19 (7)
- Magistrate may direct
- officer-in-charge of the police station in his jurisdiction
- to assist in implementation of the protection order
Section19 (8)
- Magistrate may direct the respondent
- to return to possession of the aggrieved person
- her stridhan or other property or valuable security
- to which she is entitled
MONETARY RELIEFS
Section 20 (1)
- While disposing of an application u/s 12(1):
- Magistrate may direct the respondent
- to pay monetary relief
- to meet expenses incurred and losses suffered by aggrieved person and her children as a result of domestic violence
- Such relief may include but is not limited to
- loss of earnings
- medical expenses
- loss caused due to damage or removal of any property from control of aggrieved person and
- maintenance for aggrieved person and her children including an order of maintenance u/s 125 CrPC or in addition to such order
Section 20 (2)
- The monetary relief so granted
- shall be adequate, fair and reasonable and
- shall be consistent with the standard of living to which the aggrieved person is accustomed
Section 20 (3)
- Magistrate shall have the power
- to order an appropriate lump-sum payment or monthly payments of maintenance
- as nature and circumstances may require
CUSTODY ORDERS
Section21
- Notwithstanding anything in any other law:
- Magistrate may
- at any stage of hearing of the application
- for protection order or for any other relief
- grant temporary custody of any child
- to the aggrieved person or to the person making application on her behalf
- and specify arrangements
- for visit of such child by the respondent
Proviso
- If Magistrate is of opinion
- that any visit of the respondent
- may be harmful to the interests of the child
- Magistrate shall refuse to allow such visit
COMPENSATION ORDERS
Section22
- In addition to other reliefs:
- Magistrate may
- on application being made by the aggrieved person
- pass an order directing the respondent
- to pay compensation and damages
- for injuries, including mental torture and emotional distress
- caused by acts of domestic violence committed by the respondent
Interim orders
Section 23 (1)
- In any proceeding before him under this Act:
- Magistrate may pass such interim order
- as he deems just and proper
Ex parte orders
Section 23 (2)
- If Magistrate is satisfied
- that an application prima facie discloses
- that respondent is committing or has committed
- an act of domestic violence
- or that there is a likelihood
- that respondent may commit an act of domestic violence
- that an application prima facie discloses
- he may grant an ex parte order
- against the respondent
- on the basis of affidavit of the aggrieved person
- u/s 18, 19, 20, 21 or 22
Jurisdiction
Section27 (1)
- The court of Judicial Magistrate of first class
- or the Metropolitan Magistrate
- shall be the competent court
- to grant protection order and other orders
- and to try offences under this Act
- within the local limits of which…
(a)
- the person aggrieved
- permanently or temporarily resides
- or carries on business or is employed or
(b)
- the respondent resides
- or carries on business or is employed or
(c)
- the cause of action has arisen
Section27 (2)
- Any order made under this Act
- shall be enforceable throughout India
Appeal
Section 29
- There shall lie an appeal
- to the Court of Session
- within thirty days
- from the date on which Magistrate’s order is served
- on aggrieved person or respondent, as the case may be
- whichever is later
Protection Officers to be public servants
Section 30
- Protection Officers and members of service providers
- while acting under this Act or under rules or orders made under it
- shall be deemed to be public servants
- within the meaning of section 21 IPC
Penalty for breach of protection order
Section31 (1)
- A breach of
- protection order or interim protection order
- by the respondent
- shall be an offence
- and shall be punishable with
- imprisonment of upto 1 year or fine upto 20000 rupees or both
Section31 (2)
- Such offence shall be tried
- as far as practicable
- by the Magistrate who had passed such protection order or interim protection order
Section31 (3)
- While framing charges for such offence:
- Magistrates may also frame charges
- u/s 498A or other provisions of IPC or Dowry Prohibition Act
- if commission of an offence under those provisions is disclosed by facts
Cognizance and proof
Section32 (1)
- Notwithstanding anything in CrPC:
- the offence u/s 31(1)
- shall be cognizable and non-bailable
Section32 (2)
- Upon the sole testimony
- of the aggrieved person
- the court may conclude
- that an offence u/s 31(1) has been committed by the accused
Penalty against Protection Officer
Section33
- If any Protection Officer fails or refuses
- to discharges his duties as directed by Magistrate in the protection order
- without any sufficient cause
- he shall be punished with
- imprisonment of upto one year or fine upto 20000 rupees or both
Cognizance of offence
Section 34
- No prosecution or other legal proceeding
- shall lie against the Protection Officer
- unless a complaint is filed
- with previous sanction of State Govt or an authorised officer
Protection of action in good faith
Section 35
- No suit, prosecution or other legal proceeding
- shall lie against the Protection Officer
- for any damage caused or likely to be caused
- by anything which is done in good faith under this Act or rules or orders under it
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PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
Delhi Law Academy has concisely presented the entire Domestic Violence Act in question-answer form comprised in 35 questions and answers:
Question 1:
- Does this Act extend to the whole of India? Does it also extend to Jammu and Kashmir?
Ans:
- Yes, this Act extends to the whole of India.
Explanation:
- Entry 87 of the Fifth Schedule to the Jammu and Kashmir Reorganisation Act 2019 provides as under:
- In sub-section (2) of section 1, words, “except the State of Jammu and Kashmir” shall be omitted in the Protection of Women from Domestic Violence Act 2005.
- The Fifth Schedule lists out the Central Laws which have been made applicable to the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh.
Question 2:
- Who is called an aggrieved person under the DV Act?
Ans:
- Aggrieved person means a woman
- who is [or has been] in a domestic relationshipwith the respondent and
- who alleges to have been subjected to an act of domestic violence
Question 3:
- What is meant by a domestic relationship?
Ans:
- “domestic relationship” means
- a relationship between two persons
- who live [or have lived together] in a shared household
- when they
- are related by consanguinity or marriage or
- are related through a relationship in the nature of marriage or
- are related through adoption or
- are family membersliving together as a joint family
Question 4:
- What is meant by a shared household?
Ans:
- “shared household” means a household
- where the person aggrieved lives [or has lived] in a domestic relationship
- either singly or along with the respondent …
Question 5:
- Can there be a relationship in the nature of marriage in a case where the party entering into the relationship knew that the other party was already married?
Ans:
- This relationship is not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage. It is a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife.
- All live-in- relationships are not relationships in the nature of marriage.
- This relationship would not fall within the definition of “domestic relationship” u/s 2(f) of the DV Act. Consequently, any conduct of the respondent in connection with this type of relationship would not amount to “domestic violence” under the DV Act.
Authority: Indra Sarma v. V.K.V.Sarma [2013 SC]
Question 6:
- What is a domestic incident report?
Ans:
- “domestic incident report” means
- a report made in prescribed form on receipt of a complaint of domestic violence from an aggrieved person
Question 7:
- Against whom can a complaint be filed under the DV Act?
Ans:
- Against 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 relief
- An aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or male partner.
Question 8:
- What does “monetary relief’ mean under the Protection of Women from Domestic Violence Act 2005?
Ans:
- “monetary relief” means compensation
- to meet expenses incurred and
- to meet losses suffered as a result of domestic violence
Question 9:
- Elaborate the meaning and scope of the term “domestic violence” under the DV Act?
Ans:
- The term domestic violence has been defined u/s 3 of the DV Act. It means
- conduct which harms or endangers the health or well‑being of the aggrieved person, whether mental or physical
- conduct which causes physical abuse, sexual abuse, verbal and emotional abuse and economic abuse of the aggrieved person
- harassment of the aggrieved person or her relative to meet any unlawful demand for dowry or other property
- conduct which has the effect of threatening the aggrieved person or her relative with any act mentioned above
Question 10:
- Which “abuses” are included within “domestic violence” under the DV Act?
Ans:
- Physical abuse
- Sexual abuse
- Verbal and emotional abuse
- Economic abuse
Question 11:
- What is meant by physical abuse under the DV Act?
Ans:
- “physical abuse” means
- conduct which causes bodily pain or danger to life, limb or health of the aggrieved person
- conduct which impairs health or development of the aggrieved person
- assault, criminal intimidation and criminal force
Question 12:
- What is meant by sexual abuse under the DV Act?
Ans:
- “sexual abuse” includes
- conduct of a sexual nature that abuses, humiliates or otherwise violates the dignity of woman
Question 13:
- What is meant by verbal and emotional abuse under the DV Act?
Ans:
- “verbal and emotional abuse” includes
- insults, ridicule, humiliation and name-calling, especially with regard to not having a child or a male child and
- repeated threats to cause physical pain to any person in whom the aggrieved person is interested
Question 14:
- What is meant by economic abuse under the DV Act?
Ans:
- “economic abuse” includes
- deprivation of economic or financial resources which the aggrieved person requires or is entitled to
- including household necessities, stridhan, property jointly or separately owned by the aggrieved person and maintenance
- disposal of household effects
- alienation of assets, valuables, shares and the like or her stridhan or any other property jointly or separately held by the aggrieved person
Question 15:
- Can any unrelated person provide information about an act of domestic violence and if yes, to whom?
Ans:
- Any person who has reason to believe that an act of domestic violence has been committed or is likely to be committed may give information about it to the concerned Protection Officer
Question 16:
- What are the duties of a police officer, Protection Officer, service provider or Magistrate on receipt of a complaint of domestic violence or when he is otherwise present at an incident of domestic violence?
Ans:
- Under Section 5 of the DV Act, such police officer, Protection Officer, service provider or Magistrate shall inform the aggrieved person..
- of her right to make an application for obtaining a relief by way of
- a protection order
- a residence order
- an order for monetary relief
- a custody order
- a compensation order
- of availability of services of service providers
- of availability of services of Protection Officers
- of her right to free legal services
- of her right to file a complaint u/s 498A IPC wherever relevant
Question 17:
- What are the duties of a shelter home?
Ans:
- To provide shelter to the aggrieved person
Question 18:
- What are the duties of a medical facility?
Ans:
- To provide medical aid to an aggrieved person on request of the aggrieved person or a Protection Officer or a service provider, on her behalf
Question 19:
- What are the duties and functions of Protection Officers under the DV Act?
Ans:
- to assist the Magistrate in discharge of his functions
- to make a domestic incident report to the Magistrate upon receipt of a complaint
- to make an application to the Magistrate for issuance of a protection order
- to ensure that the aggrieved person is provided legal aid
- to make available a safe shelter home if the aggrieved person so requires
- to get the aggrieved person medically examined if she has sustained bodily injuries
- to ensure that the order for monetary relief u/s 20 is complied with and executed
Question 20:
- Who is a service provider under the DV Act?
Ans:
- Any voluntary association or company with the objective of
- protecting rights and interests of women by lawful means
- including providing of legal aid, medical, financial or other assistance
- which has registered itself with the State Govt as a service provider
Question 21:
- Who can file an application to a Magistrate under the DV Act?
Ans:
- An aggrieved person or Protection Officer or any other person, on her behalf may present an application to the Magistrate seeking relief under this Act.
Question 22:
- Within what time period will such application be disposed of?
Ans:
- Magistrate shall endeavour to dispose of every such application within sixty days from the date of its first hearing.
Question 23:
- When can a Magistrate conduct proceedings in camera under the Protection of Women from Domestic Violence Act 2005?
Ans:
- When the Magistrate considers that circumstances of the case so warrant and either party to the proceedings so desires.
Question 24:
- What special right has been granted by the DV Act to an aggrieved person regarding her residence?
Ans:
- U/s 17 of the DV Act, every woman in a domestic relationship shall have the right to reside in the shared household whether or not she has any right, title or beneficial interest in it.
Question 25:
- What orders can be passed by a Magistrate under the DV Act?
Ans:
- Protection Orders under section 18
- Residence Orders under section 19
- Monetary Relief orders under section 20
- Custody Orders under section 21
- Compensation Orders under section 22
Question 26:
- What is meant by a Protection Order under the DV Act?
Ans:
- On being prima facie satisfied that domestic violence has taken place or is likely to take place
- Magistrate may pass a protection order in favour of the aggrieved person and prohibit the respondent from
- committing any act of domestic violence
- aiding or abetting in commission of acts of domestic violence
- entering the place of employment of the aggrieved person or the school or other place frequented by aggrieved person: if the person aggrieved is a child
- attempting to communicate in any form with the aggrieved person including personal, oral, written, electronic or telephonic contact
- alienating any assets, operating bank lockers or bank accounts held by both parties jointly or singly by the respondent including her stridhan or other property held jointly or separately
Question 27:
- What is meant by a Residence Order under the DV Act?
Ans:
- On being satisfied that domestic violence has taken place Magistrate may pass a residence order
- restraining the respondent from dispossessing or in any other manner disturbing possession of the aggrieved person from the shared household
- directing the respondent to remove himself from the shared household
- restraining respondent or his relatives from entering any portion of the shared household in which the aggrieved person resides
- restraining the respondent from alienating or disposing of the shared household
- 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
Question 28:
- What provisions are there in the DV Act relating to execution of a bond?
Ans:
- Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing commission of domestic violence.
- Such order shall be deemed to be an order under Chapter VIII of CrPC.
Question 29:
- What provisions are there in the DV Act relating to monetary reliefs to an aggrieved person?
Ans:
- Magistrate may direct the respondent to pay monetary relief to meet expenses incurred and losses suffered by the aggrieved person and her children as a result of domestic violence
- Such relief may include
- loss of earnings
- medical expenses
- loss caused due to damage or removal of any property from control of the aggrieved person and
- maintenance for the aggrieved person and her children including an order of maintenance u/s 125 CrPC
Question 30:
- What kind of Custody Orders can be passed under the DV Act?
Ans:
- Magistrate may at any stage grant temporary custody of any child to the aggrieved person and specify arrangements for visit of such child by the respondent.
Question 31:
- A Compensation Order under the DV Act can provide compensation for what types of injuries?
Ans:
- Magistrate may pass an order directing the respondent to pay compensation and damages for injuries, including mental torture and emotional distress caused by acts of domestic violence committed by the respondent.
Question 32:
- Which Magistrate shall have jurisdiction under the DV Act?
Ans:
- The court of Judicial Magistrate of first class or the Metropolitan Magistrate within the local limits of which…
- the person aggrieved 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
Question 33:
- What consequences shall follow on breach of a protection order?
Ans:
- A breach of a protection order by the respondent shall be an offence u/s 31 of the DV Act.
- It shall be punishable with imprisonment upto 1 year or fine upto 20000 rupees or both
Question 34:
- What is the nature of the offence u/s 31?
Ans:
- The offence u/s 31 shall be cognizable and non-bailable.
Question 35:
- What consequences shall follow when a Protection Officer fails to discharges his duties as directed by the Magistrate in a protection order?
Ans:
- If a Protection Officer fails to discharges his duties as directed by the Magistrate in a protection order without any sufficient cause,
- he shall be punished with imprisonment of upto one year or fine upto 20000 rupees or both
****************