false498a

May 27, 2010

Comments/Suggestions/Recommendations on Protection of women from domestic violence rules, 2006

Filed under: Parliament — Fighting Legal Terror @ 11:24 am

 

Comments/Suggestions/Recommendations on

Protection of women from domestic violence rules, 2006

 

Submitted to

 

Shri Mahesh Tiwari, Jt. Dir., Rajya Sabha Secretariat,

Room No. 528 A, Parliament House Annexe, New Delhi-110001

Tel: No. 23034353, Fax: 23017548; E-mail: mtiwari@sansad.nic.in

 

Respected Sir,

With reference to the press release inviting Comments/Suggestions on Protection of women from domestic violence rules, 2006 (Bill No.: G.S.R. 644(E)) from individuals/ organizations/ institutions/ experts on the working and efficacy of the said Rules, we beseech you to accept our views & suggestions and forward these to the Committee on Subordinate Legislation for considering our suggestions as proposed in here.

We are representing “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. We have been spearheading a movement against the Legal Weapons of Family Destruction and fighting against Misuse, and abuse of women-biased laws (IPC 498A, Cr.P.C 125 & Domestic Violence Act).

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.

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

As part of our activities we have conducted an on-line survey at http://www.family-harmony.org. The template of the survey is attached herewith as Annexure A. The consolidated result of the survey is attached herewith as Annexure B.  Sir, The Protection of women from domestic violence rules 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. It is purely a myth to say that the loop holes are being misused by the accused. This statement is not backed up by any data or research or study and is merely based on assumption that all women are innocent.

Because of this blind assumption that only women are victims of domestic violence, many innocent husbands are suffering due to the misuse of the said “Act & Rules” as 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. NCRB suicide data from 1996 to 2008 is attached herewith as Annexure C. 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 the PWDVA, we wish to present the following list of proposals and suggestions for your kind considerations:

  1. 1.      Remove the word, “Women” from the name:

Our objections: We object to the give protection only to “Women”. The wordings are such that only “young married wife” can claim protection and relief.

Our reasoning: The Protection of women from domestic violence Act and the Protection of women from domestic violence rules, were 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 there are 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.

Our Comments/Suggestions: Therefore, we strongly request to make the said Act and the Rules “gender-neutral” by providing protection to MEN as well.

  1. 2.     Provide protection to children/Senior citizens:

Our Objections: We object that the said “Rules” has been designed only to provide protection to “married young women”.

Our reasoning: 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.

Our Comments/Suggestions: Therefore, we sincerely request to increase the scope of the said Act and the Rules beyond “young married women” to a cover a much larger section of victims irrespective of their age & gender.

  1. 3.     Include punishment clause in case of misuse:

Our Objections: The Protection of women from domestic violence Act is one of the most misused laws in our country apart from IPC 498[A].

Our reasoning: We 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.

Below is a list of few case studies which we came across while talking with some of the victims of the misuse of this law:

  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 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 parent. 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.
  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.
  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. Some wives gets 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. Since this Act assumes that whatever the women says as true, is highly vulnerable to misuse.

 

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.

Our Comments/Suggestions: 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.

  1. 4.     Remove live-in relationships out of the context of the Rules:

Our Objections: Live-in relationships are like organized prostitution. If we don’t discourage live-in relationships then we will end up promoting polygamy which is not permitted as per law.

Our reasoning: There are no rules defined under Live-in relationships. A man can have any number of Live-in relationships and similarly a woman can also have many Live-in relationships. This is nothing but a different concept of prostitution and nothing but polygamy. The committee needs to look into this issue and ensure that the Protection of women from domestic violence rules does not cover live-in relationships. If the parliamentarian committee ignores this critical issue then that means that the parliament is promoting polygamy & adultery, thus making the sections 494 & 497 of Indian Penal Code as Un-constitutional.

Our Comments/Suggestions: The parliament should clear this confusion. It cannot take different stands on the same issue of polygamy.  Therefore, we propose to remove live-in relationships from the context of this Act OR make sections 494 & 497 of Indian Penal Code as Un-constitutional.

  1. 5.     Automatic Divorce decree should be passed on moving an application by the respondent husband:

Our Objections: 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.

Our reasoning: 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.

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.

The existing Protection of women from domestic violence rules have 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.

Our Comments/Suggestions: Therefore, we suggest/recommend introducing a new rule for protecting the human rights of the accused husband.

  1. 6.     Remove protection officer:

Our Objections: The Protection officer’s role is to only record the Domestic Incident report without any verification or collection of proof. Often this is done after filing the application to the Magistrate and only for the sake of process, nothing more than that.

Our reasoning: The officer will not have any role in investigating the alleged domestic violence, it is only limited to writing down the false statements and filling the report as per the wishes of the wife’s advocate. It is mostly noted that the job of the PO is just to tick mark most of the rows in the DIR on the insistence of the wife.

Our Comments/Suggestions: The role of a Protection officer is absolutely unnecessary and should be removed.

  1. 7.     Remove sole testimony:

Our Objections: 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.

Our reasoning: 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.

Our Comments/Suggestions: The trial under this Act should be made in compliance to Indian Evidence Act rather than in compliance to Criminal Procedure Code.

  1. 8.    Interim Orders:

Our Objections: We object to the delay on the main case proceedings due to the delay on passing of orders on the interim applications.

Our reasoning: Normally it is seen that there is a delay in passing of interim orders and on this ground the considerable delay on the main case. Even though the “Rules” stipulates that preferably the case should be heard and decided within 60 days but this provision is hardly followed by any court.

Our Comments/Suggestions: The magistrates shall ensure that interim orders are passed at the earliest and at the discretion of the officers and shall ensure the trial is not withheld over an indefinite period due to non-execution of interim orders.

 

 

  1. 9.     Perjury:

Our Objections: We object that due to various loopholes in the “Act & the Rules” the spouse are trading wild and false allegations at each other.

Our reasoning: As there is no provision of punishment in the “Act & the Rules” hence there is no fear in the mind of the litigants and they are indulging in leveling baseless and wild allegations against each other. This is deplorable and results in considerable delay of the proceedings.

Our Comments/Suggestions:

The magistrates shall order perjury and contempt proceedings in respect of exaggerated or false allegation in respect of domestic violence, cruelty when such allegations are proved to be false.  And spouses making false allegations are to be punished. 

10.Enforce strict adherence to section 6 – Application to magistrate:

Our Objections: If a defined rule is not followed then that leaves a chance for misuse. This rule has defined a very neat application form to be addressed to the Magistrate. As per this rule the complainant woman is supposed to fill-in the details of the breakup of the monetary reliefs that she is claiming <<Please refer page.67 in the rules PDF file under the heading – “Monetary reliefs under section 20”>>.

Our reasoning: But the complainant women do not follow this rule. This leads to claiming of exorbitant amounts of maintenance to the tune of lakhs of rupees. Claiming exorbitant amounts of maintenance is nothing but misusing the provision which is meant to protect women. It is impossible to believe that with the current economic conditions prevailing in our country that a woman would need lakhs of rupees of money for basic necessities like food, cloth, and medicines. We have seen cases where the maintenance amounts have been claimed in the range of 25,000/-, 50,000/- to 200,000/- per month. Even the Honorable magistrates, Honorable High court judges and “Honorable members of parliament” are not getting that much amount of money as their salaries. Maintenance includes only the basic necessities i.e., food, cloth, medicines & shelter. In any city in our country these basic necessities will not cost thousands & lakhs of rupees per month. The magistrates are supposed to pass orders ONLY for these basic necessities and other house hold expenses which should never run into thousands of rupees as claimed in some cases. The Act itself mandates that the maintenance amounts should be fair, just & reasonable. But this is hardly followed.

Our Comments/Suggestions: We therefore pray for strict adherence to this rule, else the application should be rejected if there is not breakup given for the monetary relief claimed.

11.   Change in wordings of Form III (Please refer section 7 – Affidavit for ex parte orders):

Our Objections: We object to the way false cases are being filed in the court without any fear.

Our reasoning: We feel that courts of this country are nothing but temple of justice but unfortunately there is a flood of petitions in front of the courts most of which are false and are being filed with ulterior motives.

Our Comments/Suggestions:

In order to stop the misuse of this Act as a black mailing tool, we propose to add the following two statements into the Form-III as points 12 & 13:

12. I have read and understood the facts & allegations mentioned herein and the main application and I confirm that they are true. I confirm that I swear and stand by the facts & allegations that I have made. I understand that making this application will result in hampering of my relation with the accused/respondents and I may be at risk of losing the relationship with him/them permanently.

12 (B). <<This has to be included only if the complainant woman is a wife of any of the accused/respondents>> I understand that making this application will result in hampering of my relation with my husband whom I made as accused/respondent in this case. And the marriage between us will be declared dead & broken down if my husband moves an application praying for automatic divorce decree.

13. I understand that if the facts & allegations that I made under this sworn affidavit proved to be false then I will undergo trial for the criminal cases that might be initiated on me under the sections 387 to 389 of Indian Penal Code and/or I will undergo trial under the perjury & contempt proceedings.

12. Change in wordings of Form II: <<Please put this is braces “Please refer section 6 – Application to magistrate”>>

Our Objections: We object to the way false cases are being filed in the court without any fear.

Our reasoning: We feel that courts of this country are nothing but temple of justice but unfortunately there is a flood of petitions in front of the courts most of which are false and are being filed with ulterior motives.

Our Comments/Suggestions:

In order to stop the misuse of this Act as a black mailing tool, we propose to add the following two statements into the Form-II:

1. I have read and understood the facts & allegations mentioned herein and I confirm that they are true. I confirm that I swear and stand by the facts & allegations that I have made. I understand that making this application will result in hampering of my relation with the accused/respondents and I may be at risk of losing the relationship with him/them permanently.

1 (B). <<This has to be included only if the complainant woman is a wife of any of the accused/respondents>> I understand that making this application will result in hampering of my relation with my husband whom I made as accused/respondent in this case. And the marriage between us will be declared dead & broken down if my husband moves an application praying for automatic divorce decree.

2. I understand that if the facts & allegations that I made herein proved to be false then I will undergo trial for the criminal cases that might be initiated on me under the sections 387 to 389 of Indian Penal Code and/or I will also undergo trial under the perjury & contempt proceedings.

13. Enforce camera recording of the counseling under section 14 – Counselors:

Our Objections: We strongly deplore to the use of the said “Act” being used as a blackmail tool.

Our reasoning: The said “Act” must be used for the needy women rather being misused by greedy women. In traditional cases of misuse, women will insist on registering the case & punishing the accused/respondent during counseling/mediation. But later they deny that they did not insist on registering the case or that they registered in a fit of rage.

Our Comments/Suggestions: In order to stop this particular misuse of this Act as a black mailing tool, we propose to do camera recording of the counseling/mediation done by the counselors if the accused/respondents wishes so. The counselor to give the certified copy of this recoding to the complainant woman, accused/respondents and magistrate. The charge for these proceedings can be put on the accused/respondents.

14. Enforce mandatory accommodation in shelter homes under section 16 – Shelter Homes:

Our Objections: Shelter homes must be provided for the affected victims.

Our reasoning: When a woman undergoes domestic violence it may not be possible for her to continue to live with the accused/respondent.

Our Comments/Suggestions: So, in order to protect these women, the women should be mandatorily accommodated in Govt. sponsored Shelter Homes. The cost for the accommodation may be put on the accused/respondents. The cost will be for her maintenance as per the prevailing rates as declared by the Government.

We 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.

We submit you to please consider our suggestions and please consider us to appear before the Committee for explaining our sufferings by the way of oral pleadings.

We submit that our 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                                                                                            Mahesh M

President                                                                                           General Secretary

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