Section 12 of Domestic Violence Act
1. Text of Section 12
Section 12 of the Domestic Violence Act, 2005 deals with relief to the aggrieved person by way of residence orders. The section reads in essence:
“The Magistrate may, on application by the aggrieved person, pass an order restraining the respondent from removing the aggrieved person from the shared household, excluding the respondent from the household, or granting the right to reside in the shared household temporarily or permanently, based on the circumstances.”
2. Key Features of Section 12
| Feature | Explanation |
|---|---|
| Purpose | To protect the right of the aggrieved woman to reside in the shared household and prevent eviction or harassment. |
| Magistrate’s Power | Magistrate can issue residence orders, including: |
Restraining the respondent from removing the woman from her home.
Granting the aggrieved person the right to reside in the shared household.
Excluding the respondent temporarily or permanently. |
| Shared Household | Includes house owned or rented by the husband, jointly or singly, or any other family property where the woman resides. |
| Temporary or Permanent | Magistrate can decide short-term or long-term residence rights depending on urgency, evidence, and hardship. |
| Non-transferable Right | The aggrieved person’s right to reside is independent of ownership or rent agreement, focusing on safety and protection. |
3. Purpose and Objective
Immediate Protection: Prevents domestic eviction or forced removal of women from the shared household.
Safety and Security: Ensures that women facing domestic violence have a safe place to stay.
Legal Enforcement: Provides a judicial mechanism to assert rights in domestic disputes.
4. Judicial Interpretation and Case Law
A. Indra Sarma v. V.K.V. Sarma (2013) – Supreme Court
Facts: The aggrieved woman sought residence in a house owned by her husband.
Held: The Court observed that the right to reside is independent of ownership and the aggrieved woman cannot be evicted from a shared household merely because she has no ownership rights.
Significance: Strengthened Section 12’s principle that protection and residence rights are substantive and immediate.
B. Vinita Saxena v. Pankaj Pandit (2006) – Delhi High Court
Facts: The husband tried to evict the wife from the shared household.
Held: The Court issued a residence order under Section 12, restraining eviction, highlighting that physical ownership does not override the woman’s right to protection.
C. Rashmi v. Union of India (2015) – High Court
Facts: Aggrieved woman sought exclusion of the respondent from the shared household.
Held: Magistrate empowered to issue exclusion orders under Section 12(1)(b). Courts emphasized temporary and immediate relief to prevent domestic harassment.
5. Scope of Section 12 Orders
Prevent Eviction: Stops the respondent from forcing the woman to leave the house.
Exclusion of Abuser: Respondent can be temporarily barred from entering the household.
Right to Reside: Grants exclusive or shared occupancy depending on circumstances.
Temporary Relief: Magistrates can issue urgent interim orders pending final hearing.
6. Procedure Under Section 12
Filing Application: Aggrieved person files an application under Section 12 to the Magistrate of First Class or Metropolitan Magistrate.
Notice to Respondent: Magistrate may issue notice to the respondent for response.
Interim Orders: Magistrate can pass temporary orders to ensure immediate protection.
Final Orders: After hearing evidence, Magistrate can grant permanent or long-term residence rights.
7. Key Takeaways
| Aspect | Explanation |
|---|---|
| Primary Aim | Ensure safety, protection, and residence rights of aggrieved women. |
| Independent of Ownership | Woman can reside in shared household regardless of ownership or rent agreement. |
| Preventive Tool | Helps prevent harassment, eviction, or abuse within the home. |
| Flexible Relief | Can include temporary or permanent orders, exclusion of respondent, or occupation rights. |
| Judicial Backing | Supported by Supreme Court and High Court rulings, emphasizing immediate relief. |
8. Conclusion
Section 12 of PWDVA is a powerful legal provision to protect women facing domestic violence.
Courts have emphasized that the right to reside is fundamental, ensuring safety, security, and dignity of the aggrieved woman.
Section 12 empowers the magistrate to take immediate and effective action, balancing protection with due process.
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