Domestic violence committed prior to coming in force of DV Act

Question asked on: 29/01/2017

Whether court can take cognizance of domestic violence committed prior to the enforcement of DV Act ?

Advised by: Shivendra Pratap Singh,

The Protection of Women from Domestic Violence Act, 2005 came into force in year 2005. This Act came into force when several acts of domestic violence had been committed in the shared house hold and had made the life of woman miserable. Your main question is whether act of domestic violence committed prior to the coming in force of this Act, can be taken is consideration by the court and appropriate order can be passed by the court.

There is no such bar has been put under this act to refrain the court from taking into consideration of such acts in passing order under domestic violence Act. In Saraswathy v. Babu, (2014) 3 SCC 712; the supreme court has held that

We are of the view that the act of the respondent husband squarely comes within the ambit of Section 3 of the DVA, 2005, which defines “domestic violence” in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the DVA, 2005 cannot be taken into consideration while passing an order.

Your sister having being harassed by her husband and in laws since 1998 is entitled for taking shelter of this Act despite of the fact that offence of “domestic violence” as mentioned in section 3, has been committed prior to the coming into force of this Act.

She is entitled for protection order and residence order under Sections 18 and 19 of the domestic violence Act along with the maintenance as allowed by the trial court under Section 20(1)(d) of the domestic violence Act. 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.In Savita Bhanot v. Lt. Col. V.D. Bhanot, (2010) 118 DRJ 391;the Delhi high court has expressed its view as

It is a historical reality that the women in our society have been subjected to discrimination, misbehaviour and ill – treatment, not only outside but, also inside their house, the main causes for their plight being (i) illiteracy (ii) economic dependence on men and (iii) insensitivity to their rights and their dignity.

Even a working woman, whether she be a construction worker who works side by side with her husband or a well-educated and a suitably employed professional is not always accorded the dignity and respect, which ought to be given to her on the home front.

The legislature has from time to time been making efforts to impart justice and fair play to the women by means of various statutory enactments and Protection of Women from Domestic Violence Act, 2005, is a landmark initiative taken by the Parliament to confer certain important benefits including right of residence on a woman and to penalize those, who fail to provide those benefits to the women despite judicial mandate in the form of order passed by a Court under the provisions of the Act.

This Act does not punish for the offence committed under this Act except for the breach of an order of the court. It is a civil remedy provided by the criminal court. Therefore an act of domestic violence however, committed before the coming of this Act shall be taken into consideration by the court and pass appropriate order under this act for protection of woman from domestic violence. Hence, you can file case under this Act irrespective of the fact that act of domestic violence has committed before 2005.

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Shivendra Pratap Singh

Advocate, Lucknow

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