Divorce and restraining orders in India

What is a restraining order in a divorce case?

A restraining order is awarded by a court to protect a person from taking any kind of action that will be dangerous for him. There are two types of restraining orders in divorce cases- Automatic restraining orders and domestic violence restraining orders. It is a kind of civil order issued by the court that controls a person from doing something either permanently or for a temporary period.

How to get a restraining order against a husband in India?

A restraining order in India is issued in the form of an injunction which is a judicial remedy that demands a person to abstain from doing a certain act. The procedure of awarding an injunction is laid down under Sections 94, 95, and Order XXXIX of the Code of Civil Procedure, 1908, and from Sections 36-42 of the Specific Relief Act, 1963. There are two types of injunctions

• Temporary Injunction: The court issues a temporary injunction for a set time or until the court issues its final decision. It is used where the victim needs immediate relief during a case and the court has not yet made its verdict.

• Perpetual Injunction: In India, a court may issue a perpetual injunction to prevent someone from doing anything permanently. A person is forever barred from performing specific acts when a permanent injunction is granted. It is approved by a court's final ruling.

An application must be submitted by a civil lawyer to the relevant court or tribunal where the subject is being considered to get an order of injunction in India. Specific Relief Act Section 38(3) lays down the situations in which a perpetual injunction can be granted by the court:

• To stop the violation of a contract that already exists in the person's favor who is asking for the injunction.

• Whenever a contract imposes a duty.

• When there is no way to determine the actual harm caused or probably to be prompted by the invasion when the invasion is so severe that monetary compensation will be insufficient, when the individual towards whom the injunction is requested enters or risks to invade the right to enjoy property, or when an injunction needs to halt ongoing legal actions.

Therefore, The Specific Relief Act's Section 41 lists a few situations, nonetheless, in which a perpetual injunction won't be issued. In India, divorce or domestic violence cases typically result in the issuance of a restraining order or permanent injunction. Getting a restraining order against a spouse or in-laws is advised to secure protection from any manipulation or exploitation.

What are the specific rights of women against exploitation in the context of the Protection of Women from Domestic Violence Act enacted in 2005?

• Right against physical/sexual exploitation (498A IPC)

• Right against economic exploitation (S.125 of CrPC)

• Right to compensation against desertion (1994 6 SCC 641).

• Right to keep the children below 5 years under the custody of the mother.

• Right to hold matrimonial gifts and streedhan.

• Right against dowry.

• Right against cruelty, bodily harassment, torture, etc.

• Right against domestic violence (S.3)

How to get a restraining order against a wife or husband in India?

A legal procedure is involved to acquire a restraining order against a spouse. Here are some methods as per how you can get a restraining order against your wife-

• Consult a Lawyer: It is advisable to consult an experienced lawyer Before taking any legal action. They can assist you through the procedure and help you understand the legal importance.

• Document Evidence: Collection of evidence is necessary to obtain a restraining order and this can be done by having a record of threatening messages, photographs, videos, witness statements, medical reports, etc. The evidence should defend your lawsuit that you are in apprehension for your safety or well-being due to your wife's actions.

• Choose the Appropriate Court: A petition must be filed in an appropriate court and your lawyer will suggest to you the court depending on your location and the stringency of the situation, whether you may need to approach the District Court or the High Court.

• File a Petition: Your lawyer will draft a petition framing the events that guarantee a restraining order. The petition should include details about the happenings, dates, and any evidence you have compiled.

• Affidavit: A sworn declaration outlining the circumstances that prompted your request for a restraining order will be required. This affidavit is a sworn declaration that must be accurate and thorough.

• Supporting Documents: Your petition and affidavit should include any necessary proof and supporting papers. The proof you gathered earlier may be included in this.

• Temporary Restraining Order (TRO): An interim injunction or a Temporary Restraining Order (TRO) can be asked of the court if the situation is urgent. This fast order is intended to give you immediate safety while the court reviews your case.

• Notice to the Opposite Party: Your wife will receive notice of the plea and the hearing date from the court after you have filed the petition. This gives her a chance to refute the accusations.

• Hearing: On the scheduled hearing date, show up. Make your case for the restraining order you want and offer the supporting documentation you have gathered.

• Final Order: If the court determines that a restraining order is necessary, it will deliver a final order outlining the rules that your spouse must abide by. This can entail keeping a particular separation from you, abstaining from getting in touch with you or doing any other actions judged essential for your safety.

Provisions related to protection orders under the Indian Divorce Act, of 1869

1. Section 27 (Deserted wife may apply to the court for protection): Any district court with competent jurisdiction can be reached out by a deserted wife to protect her interest. Section 4 of the Indian Succession Act 1925, does not apply to Hindus, Muhammadans, Buddhists, Sikhs, and Jain).

2. Section 28 (Court may grant protection order): By using their discretionary power the court may or may not award the restraining order concerning the property. If the Court believes that the desertion happens on absurd grounds and without the wife's consent and she's maintaining herself from her property or any business or industry or from any part of the property of the husband on which she has an interest or right then on such grounds, it may expand protection order to the wife. Such orders have got to be conclusive or time passed.

3. Section 29 (Discharge or variation of orders):If the court has discretionary power to award protection then under section 29 it also has the additional power to dismiss the same on any reasoned ground. The grounds on which, discharge or variation of the existing order can take place- If the husband ends the desertion and unites with his wife again to carry his matrimonial duties etc..Wife abuse of the protection awarded by the court, orFor any additional reasonable grounds.

4. Section 30 (Liability of husband seizing wife's property after notice of order):The wife is allowed to file a suit against her husband or her husband's creditors or any other person who claims or continues to hold the property thereby going against the court orders. Then, that property must be delivered to the wife by the husband in a suitable condition and also pay compensation to the wife and such compensation shall be double of the property's value.

5. Section 31 (Wife's legal position during the continuance of order): If the wife obtains a safety order from the court then-

• She shall be presumed to have been deserted by her husband without reasonable cause,

• She shall acquire the absolute and full right over the property.

• She will have the right to enter into the Agreement concerning the property,

To protect such right she shall be in the position of suing others who infringe her right over the property and being sued for the same during the continuance of a protection order.

What does property under protection orders mean

In the case of the wife, property means any property which is entitled to her as laid down in section 3(10) of the Divorce Act, of 1869. Section 27 clearly states that property means any property on which the wife requests protection and such property can be through possession or acquisition.

Which courts have jurisdiction under the Divorce Act, of 1869

Under Section 3(3) of the Divorce Act, of 1869, district courts have the jurisdiction to grant orders of protection under the Act of 1869, as follows:

1. The court of the district Judge having ordinary jurisdiction,

2. Where the husband and wife solemnize their marriage or,

3. Where the husband and wife reside or have last resided together before their desertion.

Protection order under the Protection of Women from Domestic Violence Act, 2005

Under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act), courts grant protection orders to prevent the respondents from contacting the aggrieved party or prohibit the respondent from entering where the aggrieved party is employed or is residing.

Why do we need a lawyer?

Article 21 of the Indian Constitution guarantees the interest of deserted women. With the idea of protection order the Constitution framers aimed to ensure women a life worth living. Hence, the females must be aware of the rights given to them in the garb of protection orders and also must be conscious of not misusing them. For this, an experienced lawyer will help you obtain a restraining order and guide you through all the further procedures. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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