false498a

June 2, 2010

STOP MISUSE OF DOMESTIC VIOLENCE ACT

Filed under: Law minister — Fighting Legal Terror @ 8:19 am

STOP MISUSE OF DOMESTIC VIOLENCE ACT

Submitted to,

Moily, Shri M. Veerappa

Union Cabinet Minister, Law and Justice

No. 3, Tughlak Lane, 

New Delhi-110 011

Respected Sir,

I am president of “Family Harmony Society” [www.family-harmony.org], a Non Governmental Organization promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. It is a not-for-profit NGO which consists of patriotic sons & daughters of the soil. Please visit our official website www.498a.org.in and www.family-harmony.org to know more about us, our activities, our organization and our aims/objectives.

Honestly concerned about the draconian methods of implementation of
the women-biased laws, lack of credentials of implementing agencies and monitoring Courts, and the Tsunamic effect it has on families, we have embarked upon a “Dharmayudh” to save the traditional Indian Family system from extinction.

We believe that certain misandric elements, in the name of pseudo-empowerment of women are all out to destroy the Indian Family System and values with the active connivance of vested interests that are harboring a diabolic design and agenda to destroy our traditional institution of family. These elements are running berserk clamoring for more draconian enactments that are detrimental to the system of marriage and family in addition to the existing laws which are totally anti-men.

The Protection of women from domestic violence Act is highly fragile and is vulnerable for heavy misuse. The loop holes in it are more favorable to the complainant woman and these loop holes are being highly misused by some of the intelligent, corrupt and greedy women to gain undue advantage over their respondent husbands. We have done numerous studies, survey and research to prove the same.

Because of a blind assumption that only women are victims of domestic violence, many innocent husbands are suffering due to the misuse of the said this “Act”. There is no provision for the suffering husbands to lodge complaint. Thousands of husbands are committing suicides because of family issues and it becomes more lethal when the wife misuses the laws favorable to women. The official data obtained from National Crime Records Bureau [NCRB – http://www.ncrb.nic.in] shows that more men are committing suicides than women year after year. Over the past few months we have come across many such cases and we have rescued such husbands to come out of their suicidal tendencies.

In order to alleviate the sufferings of the victims of the misuse of this Act [PWDVA], I wish to present the following list of loop holes in this Act which are being misused for your kind considerations:

  1. Sec. 17 of the said Act –
    1. When there is a dispute between the spouses and when the wife files a criminal cases like Domestic Violence Act and Dowry Harassment (IPC 498A) against the husband, it becomes impossible for him to continue to live with the wife. And if the wife claims for Right to residence in his house under this section, then husband has to vacate the house along with his aged parent, as it is impractical to even think that an accused and his victim can stay under the same roof that too when the criminal cases are pending. This leads to an unbearable harassment to the husband and his age old parents. Punishing him before beginning the trail is violation of his rights. In some cases the husbands will be re-paying their house loans, but because of the residence orders husband and his parent will be staying outside their houses in spite of paying for house loans, causing a great burden and hardship to them.
    2. If the husband / his parents live in the shared house they have to face harassment of police / face multiple other criminal cases as per the wish of wife’s lawyer. So invariably husband and his old parents have to run away, sometimes without belongings and stay in a rented accommodation.
    3. When the husband & wife are fighting court cases and if they both are made to live under the same roof then everyday they will end up in police stations after quarrelling. Instead of preventing the couple to fight this section is promoting the couple to fight more. In spite of claiming that the husband has done cruelty on wife by launching a case under IPC 498A, if the wife continues to live with the husband then it clearly shows that the case is a false case.
    4. The women are harassing the husbands both while staying with them in the shared house and also fighting with them in the courts. When a woman claims domestic violence and if she continues to live with the husband then how she can justify that she will not be harassed more by the husband. The magistrates, protection officers or the police cannot go and monitor what is happening in the house 24 hours a day. So, how can they come to conclusion that it is only the wife that is being harassed not the husband.
    5. The intention for bringing in this Act is to provide protection and relief to the aggrieved women but not to harass the husbands & in-laws. The Act doesn’t have any clause to punish the husband. But this section is punishing the husband.
    6. This section is providing a meaningless relief to the wife. The need for such a provision or relief is not backed up by any justification. There is no research data or analysis. There are no real time examples provided in the Act.
  2. Sec. 18 of the said Act –
    1. The wife can get an order prohibiting the husband from operating his own bank accounts including his salary accounts, making it impossible for him to live. In one case, received by our NGO, wife first used 498A to send the husband & her mother-in-law to jail. As soon as they were released on bail, wife used this section Domestic Violence Act to lock all their bank accounts & properties including the husband’s salary account. When they went home, they were beaten up by the wife & her kin and the husband & the mother-in-law were thrown out of their own house, thus making them penniless and homeless. This is how women are misusing this law resulting in violation of basic rights of the innocent husbands & aged in-laws. Even in the cases of Dowry death the husband will get a chance to prove not guilty, but this new law first punishes the husband and then gives the husband the chance to prove not guilty.
    2. This section 18[E] is providing a meaningless relief to the wife. The wife can lock the bank accounts of the husband including his salary account. She can even get an ex-parte orders and thus making the husband penniless. Husband has to go to magistrate and beg the magistrate to make him operate his own salary account where his own hard earned money is kept. This is totally absurd and violates the basic human rights of the husband. In these days of debit cards nobody keeps cash with them, people depend on bank ATMs for their daily expenses. Such being the case, locking that bank account will result in making the husband penniless even if he is working and thus making him to beg for his living from his friends, colleagues or relatives. This section has created a provision to make a well educated, well employed husband to beg for his living. Thus this provision when misused violates the Human Rights of the husband. The need for such a provision or relief is unnecessary and not backed up by any justification. There is no research data or analysis. There are no real time examples provided in the Act.
  3. Sec. 19 of the said Act –
    1. The wife can get an order prohibiting the husband from entering the shared household. This resulting in, he being thrown out of his own house without any cause. This section becomes lethal when used in tandem with Sec. 18, making the wife to capture the house of the husband and in-laws and throw them out. In many of the cases we have observed that some women acting like goons misuse this law to capture the hard-earned properties of the husband and in-laws, denying their basic rights. Once the wife gets the control over the property she can use that to accommodate her kin or bring-in her boy-friends.
  4. Sec. 20 of the said Act –
    1. Wife can file multiple maintenance suits for the same relief, one under this section and another under Cr.P.C 125 or any other provision available just to harass the husband by making him run around different courts. This concept of misusing multiple maintenance provisions has gone beyond bearable limits. We have received numerous complaints from victims who come to us to narrate their grievances and this has prompted us file a Public Interest Litigation, in Hon’ble High Court of Karnataka with Writ Pet. No. 9168/10.
    2. Though this section restricts the maintenance amount to be fair & reasonable, the Hon’ble magistrates in various courts are hardly giving attention to this clause. In a hurry to provide justice to the women they are passing meaningless orders with exorbitant amounts as maintenance without any justification. The high amounts of maintenance passed by the magistrates are being misused by the estranged wives for enrichment and luxury.
  5. Sec. 23 of the said Act –
    1. Wives get ex-parte orders using all the above mentioned provisions thus harassing the husband and violating his fundamental rights.
    2. Wives get ex-party orders to get her belongings and come with police protection and take away all the evidences, photos, bank accounts, property documents, gold, cash, credit cards, everything what she knows and what her lawyer suggests along with important house hold items.
  6. Sec. 32 of the said Act [Sole testimony] –
    1. Since this Act assumes that whatever the women says as true, is highly vulnerable to misuse.
    2. Because of the rampant misuse of the Protection of women from domestic violence Act the sole testimony of the woman cannot be taken as a sole witness or as occurrence of violence.
    3. Even the Honorable Supreme Court of India in 14Feburary2010 observed that “in rape cases the testimony of the victim cannot be considered to be the gospel truth, though in normal circumstances her statement has to be relied upon.” So in general to avoid misuse no conclusion should be drawn.
    4. The trial under this Act should be made in compliance to Indian Evidence Act rather than in compliance to Criminal Procedure Code.
  7. The act is made only for “Women” –
    1. I object to the give protection only to “Women”. The wordings are such that only “young married wife” can claim protection and relief.
    2. The Protection of women from domestic violence Act was framed and legislated based on a myth and assumption that only women under go domestic violence. The parliament has not considered the fact the “softer-sex” i.e., Males are equally vulnerable to domestic violence in the hands of a female or another male. Numerous incidents of domestic violence on males covered by press & media, clearly showing the evidence of violence on males, have been ignored by the parliament. It is not appropriate to assume that all “married young women” in our country are Sita Devis. We should not forget that we have enough number of Surpanakas & Kaikeyis in our country. Numerous incidents of crime committed by women can be found in press & media coverage. Some of these media coverage can be witnessed from our website – http://www.498a.org.in/nwsrm_prsRels.html.
    3. Therefore, I strongly request to make the said Act “gender-neutral” by providing protection to MEN as well.
  8. No protection to children/Senior citizens  –
    1. We object that the said “Act” has been designed only to provide protection to “married young women”.
    2. Anybody can be a victim of Domestic violence, including children, infants, teenagers and senior citizens. They can become victim in the hands of their own blood relatives including the mothers of the children and the sons & daughters-in-law of the aged parents. Senior citizens are mostly abused by the daughters-in-law more so by the misuse of these women-biased laws. Even United Nations Organization has recognized that the misuse of IPC 498A or the “Dowry Law” is the biggest form of elder abuse in our country. Such senior citizens in their twilight years should be protected from domestic violence and abuse.
    3. Therefore, I sincerely request to increase the scope of the said Act beyond “young married women” to a cover a much larger section of victims irrespective of their age & gender.
  9. No provision for punishment to women in case of misuse: –
    1. The Protection of women from domestic violence Act is one of the most misused laws in our country apart from IPC 498[A].
    2. I wish to bring your notice that this law is being misused by many of the young, educated & intelligent women with corrupt intentions to satisfy their greed, grudge & fantasies. This law becomes more lethal when misused along with the Dowry Law or IPC 498A. The case under Domestic Violence Act is usually filed just after an FIR U/S 498A is registered for the same cause of action.
    3. The misuse of the Protection of women from domestic violence Act is so rampant that many of the parliamentarians, courts, Chief justices of various High courts have expressed their concerns over the misuse of this Act.
    4. There is an urgent need to introduce a punishment clause in the Protection of women from domestic violence Rules in-line with section 387 to 389 of Indian Penal Code. A new rule should be introduced to protect the rights of the accused by sufficiently compensating the accused. The rule should also make a provision to return back any interim maintenance amount paid during the trial with 10% interest rate.
  10. Automatic Divorce decree should be passed on moving an application by the respondent husband  –
    1. On mere application of common sense one can conclude that a woman who is claiming domestic violence by her husband cannot be presumed to live with him any longer.
    2. More so when she is claiming for the reliefs of Protection, Residence, Maintenance orders as per the existing Protection of women from domestic violence rules. When a woman comes forward, complains and claims for these reliefs, then that itself shows that the marriage between husband and wife has broken down and the relationship between them is not cordial and that is why she has come forward to complain. In such a situation it is impossible to think that they can live together again.
    3. In such a case while providing reliefs to the woman, the husband should be granted automatic divorce decree order if he moves an application for the same at appropriate court. Alternatively appropriate amendments should be brought in the said “Rules” so that husband should be able to move application for divorce in front of the same magistrate where the application for Domestic Violence is pending.
    4. The existing Protection of women from domestic violence Act has been designed to provide protection to woman and not to harass the husband. In such a case husband should not be denied of his basic rights of being in a family, cohabiting with a woman and pass on his genes to the next generation, etc.  Even those who are accused under much severe crimes like IPC 302 (murder) or IPC 307 (attempt to murder) will be given a liberty to live freely till he is proven guilty. Many of the accused people in the 1984 riots & Godhra riots are freely living while they are still undergoing their trials. Their basic rights of getting food cooked by their wives, having children with their wives are not being denied. In such a case why a husband accused under Protection of women from domestic violence Act should be punished and should be denied of his basic rights? Since the existing Protection of women from domestic violence rules doesn’t have any punishments like not allowing husband to eat food or not allowing him to have sex, etc., the husband should be made eligible for an immediate automatic divorce decree if he moves an application for the same, so that his basic rights are not denied but fulfilled by any other woman who is happy to live with him along with the reliefs being fulfilled under this Act for the complainant wife. Not doing so results in violation of human rights of the husband none other than by the parliament.
    5. Therefore, I suggest/recommend introducing a new rule for protecting the human rights of the accused husband.
  11. Misuse w.r.t Section 12(5) of The Protection of women from domestic violence Act not being followed:
    1. Section 12(5) of the “Act” says – “The Magistrate shall endeavor to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.”
    2. But this is hardly ever followed. In fact there is not even a single case where the application/complaint made under this “Act” was disposed off within sixty days period. Because of the gap that this “Act” doesn’t mandate to adhere to this provision of sixty days time period most of the complainants are taking it for their advantage.
    3. As soon as the complainant woman seeks relief under this “Act”, the magistrate grants the order without any hesitation. But when it comes to disposing of the main application the petitioner plays delay tactics and delays the proceedings inordinately. On one hand the petitioner will be enjoying all the reliefs that she got from the court but still she denies to proceed with the trial even as per the normal rules & procedures of the Law. The petitioners drag the case by giving one reason or the other, or by putting one application after other application without any meaningful sense or by going on appeal to higher courts and deny to proceed with the case in the trial court in spite of their being no STAY order on the proceedings from the higher courts.
    4. Though on one hand the petitioner will be enjoying all the relief orders & protection orders passed in favor of her, she denies to proceed with the case because she very well knows that, undergoing trial will expose her of all her false allegations, claims and thereby she runs a danger of losing all her reliefs and protection orders. This is how the misuse is happening at the ground level. These petitioner woman extract the reliefs like monthly maintenance which runs to thousands of rupees and they deny to give evidence about the alleged Domestic Violence and they deny to allow the respondent to cross examine her in the open court.
    5. On the other hand, the respondent husband will be paying hefty maintenance amounts though he is not guilty of the Domestic Violence. There is no law in our country which provides maintenance to a wife from his husband just because she is wife to him unless she is not able-bodied. It makes sense to provide maintenance to wife if the husband has neglected to maintain her or treated her with cruelty. But when a wife puts a false case on husband and makes false & concocted allegations on him, it is cruelty on the husband. In such a case it is totally injustice to ask the husband to pay maintenance. This is nothing but punishment even in case of proving innocence. This loop hole is being taken as an  advantage and some women are taking it for granted that they just need to move an application under the Protection of women from domestic violence Act and they can get all the luxuries of life in her favor irrespective whether the wife has committed mistakes in her marital life or not. Indirectly this “Act” has given a provision to the erring wife to continue to enjoy all the luxuries while harassing the husband at the same time. This “Act” has given a provision to a ABLE-BODIED but a lazy wife to live on the maintenance of husband even though it is she who has done mistakes in the marital life and even though it is she who has constructively deserted the husband. This “Act” has given a provision to provide reliefs to even a wife with criminal intentions of hurting the husband. This “Act” gives protection even to a wife who is undergoing trial in criminal cases in which she is accused of committing crime on the husband or in-laws. This blanket conclusion of providing protection/reliefs to all women including those who were accused of criminal deeds should not be allowed. All these allegations of wives & counter allegations of husbands will be proved in the trial and that is why these women avoid to undergo trial and they delay the proceedings, cunningly.
    6. Of course it is a laid down law that till the pending of the case wife is entitled for interim maintenance. But these petitioner women deny proceeding with the trial because they want to extort the husband as much as possible before their case falls down. This is nothing but “LEGAL EXTORTION”. During such period the innocent respondent husbands go through a traumatized harassment, pain and loss of mental stability which no court can restore back. These polished barbaric acts of some civilized, intelligent, corrupt & cunning wives should be put to an end.
    7. Therefore, I suggest/recommend modifying the section 12(5) of the “Act” to make it mandatory to complete the proceedings of the case as per law within the stipulated time of sixty days irrespective of any applications being pending in higher courts for appeal without any STAY orders in the interest of protecting the human rights of the respondent husbands.

I submit that we are considering filing a Public Interest Litigation to make this Act, in the current form, as unconstitutional in the Hon’ble High Court of Karnataka. For this we have been doing a study on how this Act is being misused. Please find the enclosed Annexure for your kind perusal.

I submit you to please consider my suggestions and please do the needful in your capacity to highlight the issue of misuse in the cases under this Act and do the needful to eradicate the evil-practice of misuse by punishing such women. I submit that my suggestions are just and reasonable and in the event of non-implementation of our suggestions, we would be constrained to go to the streets with Dharnas, Public Fasting and resort to other democratic means of protests.

Please save the family and thereby save our great Nation to retain India a “Vasudeva Kutumbaham”.

Jai Hind!! With profound respects,

Suresh P, 9880141531

President, Family Harmony Society

Bangalore

May 27, 2010

Memorandum regarding the Inordinate Delays of Family Courts, Bangalore

Filed under: Law minister — Fighting Legal Terror @ 11:12 am

Memorandum regarding the Inordinate Delays of Family Courts, Bangalore

 

Submitted to

Hon’able Mr. Veerappa Moily, Hon’ble Minister, Law & Justice,

Ministry of Law and Justice, 4th Floor, A-Wing, Shastri Bhawan, New Delhi – 110 001

 

We beseech you to save the valuable lives of young spouses who approach Family Courts for judicial relief lest the faith we repose in the judiciary is lost.

Your personal and valuable intervention in setting right the gross injustice being done in the matters of matrimonial conflict will go a long way in the history of Judiciary and saving the institution of FAMILY.

After the enactment of the Family Courts Act, 1984, Family Courts have been set up in Karnataka with the ostensible object of saving the institution of Marriage and resolving Matrimonial Discord in a speedy manner.

We believe that great injustice is being done to litigants by Family Courts and Judicial system in the name of saving marriages leading to Family Destruction and creation of a Fatherless Society.

We are constrained to bring to your notice that there is inordinate delay in disposal of matters brought before the Family Courts.

For all practical purposes, the inordinate delay in the disposal of Matrimonial cases by the Family Courts is causing a great harassment to the spouses. The litigants, instead of getting relief, are being tortured by the system, rules, procedures and the legal fraternity. They are destined to waste their time and the prime of their youth at the corridors of the Family Courts for years together.

Following are some of the adverse effects of such excessive delays in the disposal of cases by the Family Courts of Karnataka:

  • The Youth and vigor of Young Women and Men are lost by the time the Family Court renders it decision – be it Just or Unjust.
  • The family Court cannot restore the Youth and Vigor of the Young citizens/spouses nor compensate for their  loss of youth
  • Statutory mandate of law for disposal of cases by 6 months and day to day hearing is not at all followed by the Family Courts
  • In the name of appointing of Amicus Curie’s the Family Courts are taken over by advocates, though the Family Courts Act has specifically banned appearance by Advocates
  • Fathers are denied custody as a rule rather than an exception. If at all visitation is ordered to the fathers it is limited to 30 min and 1 hour in a month contrary to the requirement of UN resolution that no Child should be denied access to either of the parents

 

The Supreme Court has ordered our Citizens saddled with dead marriages to approach the God and live happily blaming fate & destiny thereby indirectly pronouncing that the institution of marriage itself is DEAD. The Judiciary is more tyrannical than the Rulers are.

By the time (nay years, nay decades,) our Courts render Justice or injustice, the women and men who are forced to seek justice lose their Youth and Vigor in the best part of their life which no Court can restore.

The President, The Prime Minister, The Chief justice of India, The Law Commission and The Speaker who are the highest constitutional functionaries of our nation are on record acknowledging the existence of corruption, unjustified delay, overreach, incompetency and procrastination in the Judicial System of our Nation.

We are part of the Family Harmony Society which consists of patriotic litigants before Family Courts in Karnataka. We have been spearheading a movement against the Legal Weapons of Family Destruction and fighting against Misuse, and abuse of family laws and judicial system in all its forms and Manifestations.

Honestly concerned about the draconian methods of implementation of the family-related laws, lack of credentials of implementing agencies and monitoring Courts, and the Tsunamic effect it has on families, we have embarked upon a “Dharmayudh” to save the traditional Indian Family system from extinction.

We believe that certain misandric elements, in the name of pseudo-empowerment of women are all out to destroy the Indian Family System and values with the active connivance of vested interests who are harboring a diabolic design and agenda to destroy our traditional institution of family. These elements are running berserk clamoring for more draconian enactments that are detrimental to the system of marriage and family in addition to the existing laws which are totally anti-men.

Our country is already divided in the name of language, religion and geographic region. But these gender-biased laws are bringing in another dimension of division of our society in the name of gender.

In order to alleviate the sufferings of the litigants of family courts, we wish to present the following list of proposals and suggestions to your kind self:

Disposal of Cases:

  • The Family Courts shall ensure that all matrimonial cases be disposed within a period of one year.
  • The Family Courts to officially state that no new cases to be taken till the old ones are disposed.
  • All long-pending (one year and above) cases should be transferred to the City Civil Courts to dispose of within a time limit.

 

Reforms in Mediation Counseling and Pleadings

  • Banning the presence & pleadings by Advocates in the family Court and Mediation.
  • The Family Court shall nominate NGOs’, retired social welfare officers as counselors and mediators. They shall be adequately compensated fixing a rate of at least Rs10, 000/= per case payable by the spouses equally.
  • The Family Courts shall ensure that mediators are given exclusive powers to decide on dates, adjournments and mandate them to dispose mediations & counseling quickly, without holidays. 
  • The Family Courts shall ensure when a Husband is arrested at the instance of the wife on 498A case, automatic divorce to be granted on application for divorce by either of the spouse.

 

Child Custody matters:

  • The Family Courts shall ensure that equal custody of children are given to both spouses irrespective of allegations of mother be adulterous or father being a drunkard.
  • The practice of child being shown as a TV episode to a father should be discouraged and the Family Courts shall ensure the Shared parenting concept.
  • We strongly deprecate the attitude of the courts which consider the children as the exclusive property of the wife and totally deny access to the Husband and his Family while passing interim and final orders.
  • We strongly deprecate the basic philosophy of the Family Courts that Husband alone is bound to earn and maintain the wife and children, even though the wife is either earning or sufficiently qualified to earn.
  • The practice of passing orders for monetary compensation alone, instead of directly ordering medical, insurance and school-fee payment, purchase of clothes etc., for the children is also considered highly irregular, in view of the fact that there is no guarantee that cash given for such purposes really reach the children to fulfill their basic needs.

Interim Orders

  • The Family Courts shall ensure that interim orders are passed at the earliest and at the discretion of the officers in respect to maintenance and custody and shall ensure the trial is not withheld over an indefinite period due to non-execution of interim orders.

Perjury

  • The Family Courts shall order perjury and contempt proceedings in respect of exaggerated or false allegation in respect of employment, earning and cruelty when such allegations are proved to be false.  And spouses making false allegations are to be punished. 

 

We submit that our demands are just and reasonable and in the event of non-implementation of our demands, we would be constrained to go to the streets with dharnas, Public Fasting and resort to other democratic means of protests.

Please save the family and thereby save our great Nation to retain India a “Vasudeva Kutumbaham”.
Jai Hind!!
With profound respects,

Suresh P, 9880141531                                                                                                                Mahesh M, 9845448472

President,                                                                                                                                                General Secretary

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