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Should the quantum of compensation in a case of domestic violence be determined by the degree of violence suffered by the victim or the ability of the perpetrator to pay? This is the question before the Supreme Court, which issued notice in the case last week.
The petitioner has moved the top court against orders passed by the Bombay High Court and the trial court directing him to pay Rs 3 crore to his wife under Section 22 of The Protection of Women from Domestic Violence Act, 2005. (DV Act)
On April 26, a Bench of Justices Hrishikesh Roy and Prashant Kumar Mishra noted “the fundamental question” raised by counsel for petitioner “is whether the compensation awarded should co-relate to the degree of domestic violence suffered by the victim or is it to be linked to the financial status of the guilty party”.
The DV Act is intended to “provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”.
Under Section 3 of the Act, “any act, omission, commission or conduct of the respondent” that “harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse”, constitutes domestic violence.
“Harass[ing], harm[ing], injur[ing] or endanger[ing] the aggrieved person…to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security” also amounts to domestic violence.
The law defines an “aggrieved person” as “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”.
Under Section 22 (“Compensation orders”), “in addition to other reliefs”, a “Magistrate may…pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent”.
Section 12 allows an aggrieved person or anyone on their behalf to apply to a Magistrate for one or more reliefs under the Act, including “a relief for issuance of an order for payment of compensation or damages without prejudice to the right…to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent”.
Petitioner’s argument
Senior advocate Madhavi Divan, representing the husband, raised a question regarding the quantum of compensation (Rs 3 crore) awarded to the wife under Section 22 of the DV Act.
According to the order, counsel submitted that the compensation “should be relatable to the damages, injuries including mental torture and emotional distress caused by the act of the spouse, and…cannot relate to the standard of living of the parties”.
Divan argued that while the standard of living criteria can perhaps be made applicable in cases of maintenance under Section 20 of the Act, in this case, the compensation awarded under Section 22 has been “based on the petitioner’s annual income, who is a US citizen, for the year 2008-2009”.
Section 20 of the DV Act (“Monetary reliefs”) allows the magistrate, while disposing of an application for relief under Section 12, to “direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person” where the monetary relief is “adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed”.
The magistrate can either “order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require”.
Deciding compensation
In 2008, the Delhi High Court in Chaturbhuj vs. Sita Bai held that the object of maintenance proceedings is not to punish a person for his past neglect but to prevent the destitution of a deserted wife by providing her food, clothing, and shelter through a speedy remedy.
In 2017, in Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy, the Supreme Court ruled that the “amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance”. The court also relied on its 1970 ruling in Dr. Kulbhushan Kumar vs. Raj Kumari, where it held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife.
Advocate Saumay Kapoor told The Indian Express that while Section 20 provides for compensation for all the losses of the aggrieved person, Section 22 exists to compensate only for the exact injury. “The payment under Section 22 is punitive in nature. However, the objective of paying compensation is not to put the offender in penury but to set an example and act as a deterrent,” Kapoor said.
According to Kapoor, since maintenance and compensation are governed by different sections of the Act, “there exists a big gap of legal knowledge in the computation of damages”. Due to the absence of clear precedents, “propositions of law from maintenance cases” are often borrowed and applied to DV cases, he said.
Advocate Dharmender Arya, who takes up family law cases, said damages are usually computed on the basis of both injuries suffered by the victim, as well as the financial status of the parties. “The court has the discretionary power to decide this value. Often, it goes case by case, taking into account the victim and the husband’s status, and the kind of violence inflicted,” Arya said.
