Domestic Violence Act: Right to Residence and Protection Orders

The Domestic Violence Act is a civil law with criminal teeth. Its main purpose is to give a woman immediate safety and a roof over her head, while other disputes such as divorce and maintenance continue.

Who can apply under the DV Act?

Any woman who is or has been in a domestic relationship with the respondent and who alleges domestic violence. This includes a wife, a woman in a relationship in the nature of marriage, a mother, sister or daughter living in the same household. Domestic violence covers physical, sexual, verbal, emotional and economic abuse (Section 3).

What is the “shared household”?

It is the house where the woman lives or has lived in a domestic relationship, alone or with the respondent. In Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, the Supreme Court held that the shared household is not limited to a house owned or rented by the husband. It can include a house owned by the in-laws where the couple lived. The Court also said the owners’ interests must be balanced, and that a residence order is not a declaration of ownership.

In Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90, the Court held that the woman need not have actually lived in the shared household at the time of the violence to claim the right to reside there.

What is a protection order?

Under Section 18, the Magistrate can order the respondent not to commit domestic violence, not to enter the woman’s workplace or children’s school, not to contact her, not to alienate assets or operate joint bank accounts, and not to harm her relatives or helpers.

What is a residence order?

Under Section 19, the Magistrate can:

• Restrain the respondent from dispossessing the woman from the shared household
• Direct the respondent to leave the shared household (this cannot be ordered against a woman)
• Restrain the respondent from selling or renting out the house
• Direct the respondent to arrange alternative accommodation of the same standard, or pay its rent

Can a woman be evicted from her in-laws’ house under the Senior Citizens Act?

Not summarily. In S. Vanitha v. Deputy Commissioner, Bengaluru, (2021) 15 SCC 730, the Supreme Court held that eviction orders under the Senior Citizens Act cannot be used to defeat a woman’s right to residence under the DV Act. Both claims must be weighed together.

What other relief can she get?

• Monetary relief for expenses, loss of earnings and medical costs, and maintenance (Section 20)
• Temporary custody of children (Section 21)
• Compensation for injuries, including mental torture and emotional distress (Section 22)
• Interim and ex parte orders where urgent (Section 23)

Maintenance can also be claimed under Section 144 BNSS; courts adjust amounts awarded in different cases.

How do you apply?

1. File an application under Section 12 before the Magistrate where the woman lives, the respondent lives or the cause of action arose. In Noida and Ghaziabad this is the court of the Judicial Magistrate.
2. A Protection Officer can help prepare a Domestic Incident Report, but it is not compulsory before the court acts.
3. The court should hold the first hearing within three days and try to decide the case within 60 days of that hearing (Section 12).
4. There is no limitation period for filing the Section 12 application (Kamatchi v. Lakshmi Narayanan, (2022) 15 SCC 50).

What if the order is violated?

Breach of a protection order or interim protection order is an offence under Section 31, punishable with up to one year, a fine of up to ₹20,000, or both. Report the breach to the police or the Magistrate.

Need help?

We represent women and families in DV Act cases in the Noida, Ghaziabad and Delhi courts. Speak to our divorce and family lawyer in Noida, see our family law practice, or contact us. Also read about child custody and the welfare test.

Where a 498A or dowry complaint has also been filed, see our 498A / dowry case defence page.

Frequently asked questions

Can a wife stay in the in-laws’ house after a dispute?

She can claim the right to reside there if it is the shared household where she lived. The court balances her right with the owners’ rights and may order alternative accommodation instead.

Is a DV case a criminal case?

The main proceeding is civil in nature and is heard by a Magistrate. Breaking a protection order, however, is a criminal offence under Section 31.

Can a DV complaint be filed after leaving the matrimonial home?

Yes. There is no limitation period for a Section 12 application, and a woman who has been in a domestic relationship can apply even after leaving.

Can relief under the DV Act be claimed along with divorce?

Yes. DV Act relief can be sought alongside divorce, maintenance or criminal cases, and courts take account of relief already granted elsewhere.

Sources

• Protection of Women from Domestic Violence Act, 2005 — Sections 2(s), 3, 12, 17 to 23 and 31
• Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414
• Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90
• S. Vanitha v. Deputy Commissioner, Bengaluru Urban District, (2021) 15 SCC 730
• Kamatchi v. Lakshmi Narayanan, (2022) 15 SCC 50

This article is general legal information, not legal advice for your specific case. Law and procedure change; please consult an advocate before acting.