Police Refusal and Parallel Remedies in a Domestic Violence Case
A women's legal aid clinic in a district town is advising R, 29, married for seven years with two children aged six and three. R lives in a house owned by her father-in-law; her husband and in-laws have subjected her to repeated physical violence, including a recent injury documented by a government hospital. She has no independent income and has moved to her maternal home five kilometres away. Her husband has filed a petition for restitution of conjugal rights under the Hindu Marriage Act. The local police station declined to register an FIR, calling it a family matter. R has an audio recording of threats and WhatsApp messages. The next hearing in the restitution case is in ten days. She wants protection, maintenance and custody, but is ambivalent about divorce and fears losing her children's school access. The clinic has one paralegal and can request a panel lawyer from the district legal services authority.
1. The police have refused to register an FIR. Map the legal routes available and the order in which the clinic should pursue them, explaining what each forum can and cannot deliver.
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Police refusal is not the end of the criminal route. The clinic should first request a written refusal or record the officer's name, date and time, and preserve the medical report, audio recording and messages. It should then escalate to the Superintendent of Police under the BNSS provision corresponding to erstwhile CrPC 154(3). If that fails, it can apply to the Magistrate under the provision corresponding to CrPC 156(3) for a direction to investigate. In parallel, a private complaint can be filed for hurt and for cruelty under the BNS provision corresponding to IPC 498A.
The criminal route can produce investigation, arrest and prosecution, but it cannot by itself order residence, maintenance or custody. Those need the Protection of Women from Domestic Violence Act, 2005. The clinic should file a PWDVA application immediately, because the next restitution hearing is only ten days away and interim protection may be urgent. The two tracks should be coordinated so that R's statements are consistent. The paralegal should explain that FIR registration is a legal right, but outcomes are slow, and should not promise arrest. The panel lawyer can appear in the restitution matter and support an application under Section 26 PWDVA.
2. Should the clinic file under the Protection of Women from Domestic Violence Act, 2005, or wait for the restitution petition? Explain how Section 26 and the reliefs under Sections 18 to 22 shape the choice, including residence and custody.
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The clinic should file under the PWDVA now and should not wait. Section 12 allows an application before the Judicial Magistrate First Class. Sections 18 to 22 provide protection orders, residence orders, maintenance, custody and compensation. Section 26 expressly permits these reliefs to be sought in any pending civil or criminal proceeding, including the restitution petition. So the clinic need not choose between forums; it can file independently and also seek interim relief in the pending case.
The restitution petition does not bar domestic violence reliefs. A claim for restitution can coexist with allegations of violence and may be used to pressure R. A residence order under Section 19 can restrain the husband from dispossessing her from the shared household. The house is owned by the father-in-law, so the clinic must argue the shared-household point carefully: courts have protected a woman's right to reside in a shared household even where title is with in-laws, while not creating an indefeasible right against a third party's title. Maintenance under Section 20 and custody under Section 21 should be sought on the basis of the children's welfare and school access. Maintenance can also be claimed under BNSS 144. The urgent step is an interim protection and residence application, supported by the medical record and threats.
3. R later says she wants to withdraw because her husband has apologised. How should the paralegal respond without substituting her own judgement for R's?
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Start from R's autonomy. The paralegal should not lecture, moralise or abandon her. Ask what has changed, assess immediate danger, and document the apology and any conditions attached to it. Explain the options without pressure: she can withdraw the FIR, but a PWDVA protection order can remain; she can seek counselling; she can keep evidence and a safety plan; she can return to the clinic later. Explain that in a cognizable offence the state is the complainant, so withdrawal may not automatically end prosecution. If she fears retaliation, discuss shelter, protection orders and confidentiality.
The professional duty is informed choice, not obedience to a script. Ambivalence is common in abusive relationships and should not be treated as a false complaint. The paralegal should check whether the apology is accompanied by threats, financial pressure or family mediation that silences her. Refer her to a women's collective or counsellor if she wishes. Respect her decision while making the risks and remedies clear.