Who is entitled to claim maintenance under the PWDVA?
All categories of persons mentioned under Section 125 of the CrPC are entitled to claim maintenance under this law. This includes the wife, minor children whether legitimate or illegitimate, major children suffering from physical or mental abnormalities or injuries and the mother. Others entitled under their personal laws may also claim.
v How is the amount for monetary relief to be calculated?
Under Section 20 of the PWDVA- the monetary relief amount has to be adequate, reasonable and fair and consistent with the standard of living to which the
aggrieved woman is accustomed. In calculating the amount of monetary relief the courts will follow the standards prescribed under the law of maintenance.
[Section 23(2) of the HAMA] Court has to consider the following factors while arriving at the amount of monetary relief to be granted:
o The social status of the couple, this includes the husband's income and standard of living of the couple
o The reasonable needs of the wife: this includes, at the very minimum, her needs as to food, clothing, residence and medical expenses
o The value of the wife's property and income, if any
o The number of persons entitled to maintenance from the husband under the HAMA: this includes, besides the wife, children, her parents and a widowed daughter-in-law.
v Can an order for monetary relief be a lumpsum amount or does it have to be in monthly instalments?
Whether monetary relief is a monthly payment or in the form of a lump sum one time payment will depend on what the aggrieved woman has asked for and on the discretion of the court. Under the PWDVA either monthly payment or lump sum may be granted under Section 20 (3)
v If a woman has already obtained an order under Section 125 CrPC or any other suit for maintenance, can she apply under the PWDVA seeking its enforcement?
There is no advantage to seeking the enforcement of a Section 125 order under this law. However, the breach of Section 125 order can be regarded as being economic abuse, and hence 'domestic violence'.
v What does the proviso to Section 12(2) mean? How will the set off be calculated?
Proviso to Section 12 (2) states that where a decree for any amount as compensation or damages has been passed by any court in favor of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under the PWDVA shall be set off against the amount payable under such decree and the decree shall be executable for the balance amount, if any, left after such set off.
After the order is passed, the amount will then be deducted in accordance with the provisions under Section 125 Cr PC or HAMA or any other law.
v Can a Muslim woman seek an order for monetary relief under the PWDVA?
A Muslim woman who is not divorced can ask for monetary relief under the PWDVA. However, if she is divorced her rights will be determined under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and she will have to go under that law or under Section 125 CrPC. (See Daniel Latifi v Union of India [(2001)7 SCC 740]
A Muslim woman can apply for an order for monetary relief against her son.
v How will the court ensure that orders for monetary relief and compensation, alternate accommodation are executed when the respondent does not have the means of making the payment?
The Supreme Court in Leelavati v State of Uttar Pradesh (1982 (1) SCC 437) has opined that if a person is healthy and able bodied he must be held to have the means to support his wife, children and parents. The Court may initiate proceedings under Section 125 (3) of the CrPC and cause the Respondent to be arrested, if he does not pay on an order under Section 125.
v What is the procedure to be followed in cases where an order for monetary relief is not complied with?
Rule 6 (5) provides that all orders under the PWDVA will be enforced the manner laid down under Section 125 of the Code of Criminal Procedure.
Rule 10 (e) provides that the Protection Officer, if directed to do so in writing by the Magistrate shall assist the courting enforcement of orders in the proceedings under the Act in the manner directed by the Magistrate, including orders under Section 12, 18,19,20 21,23.
Proceedings for enforcement of orders under the PWDVA may be initiated as provided under Section 125 (3) of the CrPC. Magistrate may issue a warrant for levying the amount due in the manner provided for levying fines and may sentence a person for the whole or any part of the monthly amount or any other amount mentioned in the order granting monetary relief.
In appropriate cases the Court may direct the respondent's employer to pay the aggrieved person directly, under Section 20 (6) of the PWDVA, by attachment of property, etc.
When the Magistrate gives an order for monetary relief coupled with a Protection Order, then non-compliance with the order shall amount to breach under Section 31 of the PWDVA. It is advisable always to ask for a protection order coupled with any other relief.
36. Under Section 20(4) the magistrate is required to send a copy of the order for monetary relief to the police. How will this order be enforced since the police have not been given any power to get the order enforced?
When the order is given to the police, the aggrieved person should also ask for an order directing the police to assist in the enforcement of the order. Even if such a direction is not given, it is necessary to keep a record of the domestic violence with the police so that they have a history of the case and can assist when the necessity arises. If a Protection Order has been given in conjunction with the order for monetary relief, then breach of a protection order is a cognizable offence and a complaint may be lodged with the police under Section 31.
CUSTODY ORDERS
v Can a woman claim custody over her children under the PWDVA?
Yes, under Section 21 of the PWDVA. It is to be noted that custody orders can be applied for only in addition to applications for protection or other orders. This means that where there is domestic violence and a woman wants a protection order, etc, she can also apply for temporary custody.
The magistrate can give for orders of temporary custody of children only. This will not prevent the other party from going to an appropriate forum and seeking permanent custody or joint custody of the children.
If a matter with regard to custody of children is pending in a court, an application under the PWDVA for temporary custody of children can be made in the same court.
v How will the court decide on the best interest of a child
At the time of deciding on applications of temporary custody the best interests of the child or the welfare of the child must be kept in mind. In Rosy Jacob v Jacob Chakramakkal, the SC while opining on matters to be considered in appointing a guardian, held that
"In considering what will be the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, character and capacity of the proposed guardian and his nearness of kin to the minor…"
The welfare of the child is not to be decided on the aspect of material comforts alone. In McGrath (Infants) (1983) 1 Ch 143 quoted with approval in Dhanwanti Joshi v Madhav Unde (1998) 1 SCC 112 it was held that
".. the welfare of the child is not to be measured by money alone nor by physical comfort only. The word 'welfare' must be taken in its widest sense.
The moral and religious welfare must be considered as well as its physical well being. Nor can the ties of affection be disregarded."
Walker v Walker - 6 1981 New Ze Recent Law 257
"Welfare is an all encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters, understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child's own character, personality and talents."
ENFORCEMENT
v How will an order against prohibiting the respondent from communicating with the aggrieved woman be enforced?
If the communication is by phone, a record can be kept and the aggrieved person can be advised to install a caller ID.
If the communication is by e-mail, a record of the same can be kept and produced before the court as evidence. If the respondent visits the aggrieved person at her office or at the residence, the aggrieved person should immediately call the police so that the respondent violating the order can be arrested.
Rule 10 (e): The Protection Officer, if directed to do so in writing by the Magistrate shall assist the courting enforcement of orders in the proceedings under the PWDVA in the manner directed by the Magistrate, including orders under Section 12, 18,19,20 21,23.
The Protection Office should be contacted and informed about the communication made by the respondent so that immediate action can be taken as per procedure under the PWDVA.
A bond to maintain peace (for preventing any further acts of domestic violence) may also be executed under section 19 (4). Police help may also be sought to give protection to the aggrieved woman or aiding her in the enforcement of any order given under this law.
v What can be done to prevent the breach of a residence order?
The Magistrate order the Respondent to execute a bond for preventing the commission of domestic violence under Section 19 (3) which provides for residence orders. The breach of any order under Section 19 shall then be dealt with in accordance with the procedure set out in Chapter VIII of the CrPC. Hence violations of conditions in the bond may lead to the arrest of the respondent.
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