By Palak Jain
Introduction
The Constitution of India guarantees “right to equality” as a Fundamental right to both the citizens and non-citizens. Article 14 of the Constitution provides to all the people within the territory of India equal treatment and equal protection of the law.
Equal protection of law is a positive concept that regards the obligation on the state to prevent and protect infringement or violation of rights of people. The Constitution also guarantees to all protection of life and personal liberty. It safeguards the Fundamental rights of people from arbitral decisions. One amongst such safeguard is the power of Courts to grant protection aid to individuals or parties.
Protection Order
A Protection Order is an order issued by a Court to help protect a person and his/her family from abuse or harassment by another and refrain that person to do so. It can restrict the abuser or harasser behavior by:
- Ordering the abuser or the harasser to stop abusing or harassing the person and his family.
- Tell the abuser or the harasser to leave and stay away from your home, work spot, and family.
- Direct the abuser or the harasser to have no contact with you, including no calls, letters, or messages through others.
- Order the abuser or the harasser to stay away from the kids, their sitter, day care, or school.
- A protective order does not act as a punishment for the victimizer. It acts an intention to forestall future brutality or badgering. Nonetheless, infringement of the request can prompt capture and punishment of the victimizer.
The order passed can either be a temporary protective order or an extended protection order. A temporary protection order is passed by judicial Courts that is as a result for as long as 45 days whereas; an extended protection order is an order that extends the initial temporary protection order for a period not more than 2 years.
Who Can Apply?
The person who believes that he/she needs protect from an abuser or harasser is called the “applicant”.
It is he/she who files an application for protection against the victimizer in the Court. The applicant could be:
- An individual who has been a victim of a crime involving sexual assault or stalking or harassment.
- A parent or guardian of a child who has been the victim of a wrongdoing ordered as unsafe to minors.
- An employer or business that believes the crime of harassment has incurred at the workplace.
Protection orders can also be filed by an individual for harassment or coercion or abuse against his/her family members. Often individuals get pressurized and suppressed by their family members for marriage.
Many individuals get forcefully married against their will because of family pressure which leads to grave mental and emotional torture to the individual oppressed.
In the case of Latta Singh Vs. State of Uttar Pradesh[1] the Supreme Court had given a remarkable Judgment that had turned the course and served as a protection precedent to inter-caste married couple against threat or coercion by family members. In this case, the SC had allowed the writ petition of a woman enforcing her right to marry any person of her will under article 36 of the Constitution. The Supreme Court had given the decision in her favor and had granted her protection against harassment.
The Delhi High Court recently provided a 23-year-old homosexual woman with police protection who was coerced into the marriage with a man a few years ago against her will and had now run away from her marital home after her folks tried to cure her sexual orientation through conversion therapy.
The petitioner sought assistance at an NGO- ANHAD, in New Delhi. The woman approached the Court seeking protection under Article 14 (right to equality) and Article 21(right to privacy, autonomy, liberty, and dignity) of the Constitution against her family members and to stop them from contacting, harassing, and threatening her in any manner. The Court has directed the Delhi police to take all necessary protections for the safety of the petitioner at her new location.
The Supreme Court had also, granted protection to an inter-caste married couple from getting arrested as they had gotten married against the consent of their families. The couple was facing life threats from their family member and had sought the Supreme Court for the same.
The Supreme Court directed the Delhi Commissioner as well as the directive general of police in Uttar Pradesh and Rajasthan to refrain from taking any coercive measures against the couple. It further directed them to provide security to the couple in case of a requirement.
The court, in this case, observed that when two adults mutually consent to pick one another as their life partners and decide to get married, it is a manifestation of their rights, which is perceived under Article 19 and 21 of the Constitution.[2].
In the case of Saurabh Kumar Singh Vs. State of GNCT, Delhi & Ors[3], the Delhi High Court had granted a lawyer police protection. The petitioner and his family were repetitively being followed and threatened by the accused against whom the petitioner was appearing to represent his client in a case to not appear and drop the case. The petition was heard by a bench of a single-judge, Justice Brijesh Sethi. The High Court directed security officers to provide protection to the Advocate for his safety.
In India, a restraining order is issued in a form of injunction as a judicial remedy that confers upon a person to do or refrain from doing some act or a thing. Under the Civil Procedure Code, 1908, Sections 94, 95 and Order 39 of it prescribes procedure of granting an injunction, Sections 36-42 of the Specific Relief Act, 1963, too provides provisions regarding granting of an injunction.
In India, two types of an injunction are granted that are restrictive, prohibitive and mandatory in nature. Following are the two types of injunctions enforceable:
- Temporary Injunction
It is an injunction issued by the Court for a definite period of time, or till the final order of the Court has been delivered. It can be passed anytime during a case when immediate relief is required for the victim before the final decree/verdict of the Court.
- Perpetual Injunction
When an injunction issued by the Court refrains a person from doing a particular thing or act permanently, it is said to be a perpetual injunction. It is passed for an indefinite period of time and through a final decree/verdict of the Court.
Recent Cases
Recently, The Jammu and Kashmir High Court provided protection to an inter-religious married couple. The petitioner alleged that couple was receiving death threats from the woman’s family after she had embraced Islam on her own accord and married a Muslim man.
The Bench comprising of Justice Ali Mohammad Margey directed the Director-General of Police J&K to protect to the petitioners to ensure that they are not harmed or attacked or harassed by their family or any other person at their assistance[4].
In the case of X Vs. The State (Govt. of N.C.T of Delhi) & Ors[5], the Supreme Court had directed to mask the identity of the petitioner to provide her protection against her parents. The Court directed to mask her identity from all the documents and records of the proceedings in this case and if required she shall be referred to as “Ms. X”.
According to the Delhi High Court’s order, it was asserted that the girl once was found talking to a boy, Aalim, by her mother and, as a result of which she was beaten and forcefully confined to stop her from interacting with others. Due to immense family coercion and pressure, the petitioner was impelled to take off from her parental house without her future knowing and had retorted to her friend, Aalim for protection.
The father of the petitioner and her uncle had threatened the family members of her friend by calling repetitively for producing the petitioner to them. The Supreme Court has entrusted her responsibility to the Kasturba Gandhi National Memorial Trust for providing her protection, safety, and education until further orders.
Time and again the Courts have ensured that the freedoms and rights of the people are secured and not violated. With changing times and modern outlooks in various sectors of life, the Indian courts have too evolved.
The Punjab and Haryana High Court has recently delivered a significant judgment ruling that there is no difference between married couples and live-in couples seeking protection. It further added that even though live-in relationships are not generally accepted by society, but one cannot say that staying in is illegal or living together without marriage is an offence.
Thus, in a matter pertaining to live-in relationships, where the couple seeks protection of Court can be granted for the protection of their life and liberty against the family members.[6]
Conclusion
A protective order is an important instrument that helps in protecting individuals against abuse, harassment, and threats. Any individual whose right to life and personal liberty is infringed or has been physically, emotionally, or even sexually abused can seek protection through this.
It plays an important role in teaching abusers that there are consequences of violating a person’s right and threatening and abusing him/her. It restrains the person from further inflicting harm to the victim.
Thus, protective orders play a key role in keeping victims of domestic abuse or sexual harassment or even stalking safe and acts as a pillar of support to them.
However, it is also essential for individuals to protect themselves and make safe plans to protect themselves from further abuse, even after a protective order is granted.
- Lata Singh Vs. State Of U.P. & Another(2006) 5 SCC 475 ↑
- Ankit Suklecha & Anr. Vs. Union of India & Ors., Writ Petition (Criminal) No. 9632 of 2020. ↑
- Saurabh Kumar Singh Vs. State of GNCT, Delhi& Ors W.P. (CRL.) 3053/2019 ↑
- Khadeeja Vs. UT of Ladakh, WP (C) No. 971 of 2021 ↑
- (Crl.)No(s).3727-3728/2021 ↑
- Pardeep Singh & Ors Vs. State of Haryana & Ors CRWP-4521-2021 (O&M) ↑