What is a restraining order?
An order which is granted by the court, that prevents a person from harassing and contacting someone is called a restraining order. It is basically granted to protect the person’s life from danger or apprehension of danger. It can prohibit a person from doing something for permanent period of time or for a temporary period of time. It is not a punishment but an order which is issued to prevent violence or harassment with the aggrieved person in future. However, if the abuser still violates the order, he can be arrested by the police and punished by the court.
Restraining order in India?
In India, there is no such concept as of a restraining order in any law per se but it is issued in form of injunctions which is provided in the Specific Relief Act, 1963, and the procedure of its application is as per section 94 and 95 of the Code of Civil Procedure.
Injunction is a remedy in the form of court order that restrains a person to do or not doing something. There are two types of injunction
(a) Temporary Injunction :
As the name itself suggest it is a court order which is issued for a temporary period of time till the final order of the court comes regarding the case. It can be granted at any stage of the suit.
(b) Perpetual Injunction:
It is issued for a permanent period of time. It restrains a person to do an act permanently and is a final decree of the court. It continues for all the time to come.
How to get a restraining order?
To get a restraining order one has to file a petition at appropriate court through a civil lawyer including written statement of the aggrieved why he or she required court’s protection. If the judge gets satisfied after reviewing the petition and hearing testimony and other evidence signs restraining order that day itself or may hold hearing another day when the aggrieved can explain request verbally.
If it is a case of domestic violence, the aggrieved party can directly approach a police officer, or can directly file a complaint with the Magistrate for obtaining a restraining order. Within three days from the day complainant filed the court hear the case. After the hearing, if the Magistrate gets satisfied with the aggrieved’s case, a restraining order is issued.
What does restraining order do?
Restraining order stops the abuser to stay away from the aggrieved person including his or her home, workplace and family. It also directs the abuser not to contact the aggrieved person through message, calls, letters etc. It prevents the abuser from harassing.
Can anyone get restraining order?
Yes anyone who has been either physically, emotionally or mentally abused or harassed can get a restraining order. But a child below the age of 18 years can apply through an adult who acts as his representative. However, it does not prevent the child from hearing before the judge, the judge will have to consider the child’s view.
Application fee to get restraining order
There’re no fees for filing a petition to get a restraining order. However, if one hires a lawyer for filing the petition one has to pay lawyer’s fees.
Procedure of the court hearing
The aggrieved person makes a statement which includes the reason for applying for getting a restraining order, if the same has hired a lawyer, then the lawyer makes a statement on behalf of the applicant i.e., aggrieved person.
After this, the respondent makes a statement that why the order should not be issued by the court.
Step followed by this is to present evidence and witnesses. Both parties get the chance to cross-examine. And the petitioner sums up the statement that why the order should be issued and the respondent sum up the statement that why the order should not be issued.
The judge reviews all the evidence and witnesses of both the sides and immediately announces the decision and if satisfied, sign for a restraining order on the same day itself or may hold hearing at a later date.
Punishment for violating the restraining order
If the abuser violates the restraining order granted by the court, he shall be punished with imprisonment which may extend to 6 months or be liable to fine. However, if the abuser has already been convicted for the same offense and if he violates the order second time, he shall be punished with imprisonment which may extend to 2 years
In Morgan Stanley Case, the Hon’ble Supreme Court inter alia observed and provided the given below guidelines for granting temporary injunction besides others:
- Where extremely serious and irreparable injury will be caused to the applicant, an order can be passed ex parte.
- The court shall examine the time when the plaintiff got notice of the act complained;
- If the plaintiff has acquiesced to the conduct of the respondent then ex-parte temporary injunction shall not be passed;
- The petitioner shall be acting in utmost good faith; and
- Order shall be for a temporary period.
This article is authored by Rukshana Badar, student of B.A. LL.B (Hons) at Maharishi Dayanand University.