Domestic Incident Report (DIR):
As per section 2 (e) of the Protection of Women from Domestic Violence Act, 2005 (DV ACT), domestic incident report means, a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person by the protection office.
INTRODUCTION:
What is DIR, what its procedure is and what’s the impact of DIR on DV cases, to understand all these questions regarding DIR we have to comprehend domestic violence act.
DIR is used exclusively in the cases of domestic violence.
What is domestic violence?
Violence defined by the World Health Organization (WHO) “as intentional use of physical force or power, threatened or actual, against oneself, another person, against a group or community that either results in or has a high likelihood of resulting in injury, death, psychological harm, mal development or deprivation”.
“Domestic violence refers to violence, abuse and intimidation between people who are currently or have previously been in an intimate relationship. The perpetrator uses violence to control and dominate the other person. This causes fear, physical harm and/or psychological harm.”
As per section 3 of the DV Act “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it harms or injures or causing physical, emotional, mental or economic abuse; harass to coerce her or any other person related to aggrieved person to meet unlawful demand of dowry”.
Now, in our society cases of domestic violence are infrequent it’s a myth actually, we see or hear numerous of cases of domestic violence. The National Family Health Survey (NFHS-4) suggests that 30 percent women in India in the age group of 15-49 have experienced physical violence since the age of 15. The report further reveals that 6 percent women in the same age group have experienced sexual violence at least once in their lifetime. About 31 percent of married women have experienced physical, sexual or emotional violence by their spouses. Only 1% of such women have ever sought help and initiated any action against such violence.
This type of violence violates the Article 14, 15 and 21 of the Constitution of India, which clearly elucidates that state shall not deny any person equality before the law or the equal protection of law neither state shall discriminate against any citizen on the basis of caste, creed or sex and most importantly every person has the right to live with dignity respectively.
So, in such cases Indian Government made some constitutional provisions for to protect women from the domestic violence and consequently, set up institutional sources. One of the special act which was enacted by the parliament I 56 year of republic of India is the Protection of Women from Domestic Violence Act (PWDVA), 2005 this act came into force on 26th October 2006.
The PWDVA is a civil law that defines domestic violence, recognizes a woman’s right to reside in a violence-free home and provides remedies in cases of violation of this right. The PWDVA operates in addition to all other existing criminal and civil law. The PWDVA has to be read in conjunction with the PWDVR (Protection of Women from Domestic Violence Rules). This act will help in apprehending DIR its procedure and role in domestic violence cases.
What is DIR :
In simple terms it’s a report made in prescribed form i.e Form I of Protection of Women from Domestic Violence Rules (PWDVR), 2006, on receipt of a complaint of domestic violence.
A DIR is somewhat similar to an FIR recorded under criminal law, as it is a public record of a complaint. A Protection Officer (PO) is obliged to record a DIR on receiving a complaint of domestic violence. The DIR is to be filled and signed by the aggrieved person and countersigned by the PO.
A DIR is meant to be an authentic record of the complaint presented and is not a report of an investigation. The PO need not conduct any enquiries at the time of recording the DIR or triggers any judicial process. Judicial processes are commenced only if the aggrieved person so desires accordingly, to initiate such process, an application under Section 12 has to be filed in Court. However, the PO must ensure that the DIR is completed with care and precision and accompanied by all relevant supporting documents.
In filing DIR protection officer plays a vital role. Who is a Protection Officer. What is PO’s precise role and duties?
Protection Officer (PO) is the key authority appointed under the DV Act to implement the act.
Under section 8 of the DV Act the state government the State Government appoints Pos in each district as it may consider necessary. The State Government make this decision after considering a number of factors, including the population of the state, the volume of reported cases of gender violence and the number of individuals or agencies that can provide infrastructural or other support to POs in the discharge of their duties.
As per rule 3 of PWDVR, PO is appointed by the state government and their tenure is for minimum 3 years.
What is PO’s precise role and duties:
Protection Officer role is to prepare a DIR in a prescribed manner upon the complaint of domestic violence with a copy forwarded to local police officer and service provider. Protection Officer is to make application before the magistrate on behalf of the aggrieved person. Duty of the Service Provider, recorded the domestic incident in a prescribed form to get the aggrieved person medically examine and intimate. The duty of the Magistrate is within 3 days of the receipt of the application by court first date of hearing is fixed. Likewise other aggrieved persons had their duties under the protection of women from the domestic violence act.
The Duties of PO are provided in section 9 of DV Act read with rules 8,9,10 of PWDVR. We can categorize its duties:
- Pre-litigation duties- Where any aggrieved person approaches court or upon receiving information from any person who witnessed such violence or aggrieved herself, a PO will assist such person and PO’s primary objects will be:
PO will reduce such information into writing and ensures same to be signed by such person and he will provide that person the copy of information free of cost;
PO will minimize the aggrieved person’s exposure to such violence;
PO will provide for her safety – to facilitate her access to support services such as shelter homes and medical facilities; and
PO will assist with the preparation of the Domestic Incident Report (DIR) and applications to Court.
- During litigation duties- After the aggrieved person files an application under the PWDVA, the Court assumes supervision and directs the PO as per rule 10 of PWDVR to perform various functions. In simple words before passing any order or granting any relief Magistrate assign PO to make an appropriate inquiry for the clarification on the case and to establish truth in regard to same.
Magistrate or State Government time to time can assign such additional duties to PO.
What is the impact of DIR in domestic violence cases:
Section 12 of PWDVA states, that an aggrieved person or protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the said act.
Though proviso of section 12 clearly elucidates that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the PO.
In the judgment of:
Nayanakumar Vs. The State of Karnataka and Anr.
A careful reading of the provisions contained in Section 12 of PWDVA makes it clear that it is only before passing an order on an application that is filed by aggrieved person, that the Magistrate is required to take into account any Domestic Incident Report.
In other words if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Service Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party.
DIR is a detailed report of the aggrieved person which contains intelligible specifics like her own details; details of people who committed violence; incidents of violence; type of violence and etc. We can clearly culminate that DIR plays a vital role in domestic violence cases as it is a detailed report of violence and further it helps in establishing the prima facie case in court. The Magistrate has to consider not only the DIR that is filed along with the application, but also those DIRs that may have been forwarded by the PO on earlier occasions. As a public record of an incident of domestic violence, the DIR constitutes valuable evidence of past incidents of domestic violence.
In practice we have learned Judges (Magistrate) have discretionary power, as per legal dictionary discretion is the power or right to make official decision using reason and judgement to choose from among acceptable alternatives. In simple terms it’s a power of the judiciary to make some legal decisions according to the facts and circumstances.
The said discretion is used by the Magistrate in the domestic violence cases regarding DIR, its obligatory for PO to file DIR but is it mandatory for Magistrate to call upon DIR.
Though, it brings us to our last and very important question.
Is it mandatory for magistrate to call upon the DIR:
The DIR is to be attached to any such application filed u/s 12 PWDVA. Even if the aggrieved person chooses not to file an application, the PO has to forward copies of all DIRs recorded to the Magistrate within whose jurisdiction the alleged act of domestic violence has occurred. A Magistrate has to consider any DIRs received from a PO before passing any orders under the PWDVA.
But time to time courts has laid down guidelines and ruled out judgments explaining that is it mandatory for Magistrate to call upon DIR or not. Some of the judgments are mentioned hereinafter:
In the case of Bhupender Singh Mehra & Anr. Vs. State of NCT of Delhi & Anr. 2010 (4) JCC 2939 has spelt out that such a procedure bind the magistrate. The relevant portion of the said judgment is reproduced hereunder:
“Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of the Domestic Violence Rules. This proforma is in detailed analytical form where the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed”. The same stand was taken in the case of Uma Narayan v. Mrs Priya Krishna Prasad (Criminal Originial Petition No 9277 of 2008.
But in 2011 in the case of Abhiram Gogoi vs. Rashmi Rekha Gogoi, , it was held by Hon’ble Gauhati High Court that it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes a maintenance order under Section 18 of the DV Act.
A similar view was taken by the Hon’ble Delhi High Court in the case of Shambhu Prasad Singh vs. Manjari, 2012 SCC Online Del 1371, that receipt of domestic incident report is not a pre-requisite for issuing a notice to the respondent. Insistence to take into consideration the domestic incident 14 of 18 report of protection officer would not apply at the stage of initiation of enquiry under Section 12 of the DV Act, because a Magistrate, on the basis of an application supported by affidavit, on being satisfied can even grant ex parte orders in favour of the aggrieved person under Sections 18, 19, 20, 21 or 22 of the DV Act.
In the case of Jagdish Kumar Bakhri vs. Manju Bakhri, 2012 SCC Online P&H 395, High Court observed that a bare perusal of Section 12 of the DV Act would signify that it is not mandatory for the Court to call for domestic incident report on each and every date of hearing, before passing any order. If no domestic report is received in the court, then in such eventuality, there is no bar for the court to pass an order under Section 12 of the DV Act.
In a recent case of Sh. Rakesh Choudhary & Ors. vs. Smt. Vandana Choudhary on 7th June, 2019
On a conjoint reading of Sections 9 and 12 of the DV Act, it is manifestly clear that it is duty of the Protection Officer to work under the control and supervision of the Magistrate and to perform duties imposed upon him by the Magistrate and in case, he has received a complaint on domestic violence, then to make a domestic incident report and submit it to the Magistrate, as well as to forward copies of the complaint to the Police Officer in charge of the police station within local limits of whose jurisdiction, domestic violence is alleged to have been committed. The proviso added to Section 12(1) of the DV Act is only to the effect that in case a domestic incident report has been received by the Magistrate, the same shall be considered before passing any order on an application received. Section 12 of the DV Act per se does not hold that a Magistrate on receipt of complaint is obligated to call for a domestic incident report, before passing any order on an application. So it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes any order provided under various sections of the Act; so receipt of domestic incident report is not a pre-requisite for issuing notice to the respondent. Magistrate, on the basis of an application supported by affidavit, on being satisfied can even grant ex parte orders in favour of the aggrieved person under Sections 18, 19, 20, 21 or 22 of the DV Act.
CONCLUSION:
The concept of DIR works on ‘how to’ which has been lost in the wordily interpretation of the courts. DIR is a detailed analytical proforma, it embrace the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. It is important for magistrate to call upon DIR due to its detailed report it helps in evaluating the verity of the case and according justice to the right person.
By taking the idea of DIR further and by widening its concept the Court can use DIR in right direction for protecting the individual interest of parties so that none can feel injustice.
