If Domestic Violence Act retrospective in operation?
Legal Fighter
(Querist) 30 September 2008
This query is : Resolved
Hi Experts,
I have read that all the newly formed statute are prospective in nature if it is not specifically mentioned that the statute is retrospective in its operation. But the courts are taking contrary view and putting the Domestic Violence Act as retrospective in operation though nothing is specifically mentioned for the same. Also Domestic Violence Act being quasi-criminal, may attract binding of Section 20 of Constitution of India for violation of fundamental right due to its retrospective operation.
Can you please provide me some supreme court judgment which clear this ambiguity of operation of a new statute?
Thanks & Regards,
Manish
ARVIND JAIN
(Expert) 30 September 2008
THERE IS NO AMBIGUITY.DV LAW IS NOT RETROSPECTIVE.
Legal Fighter
(Querist) 30 September 2008
Below is one judgment of Madras High Court. Can you please comment..
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 2.4.2008.
CORAM
THE HON'BLE MR.JUSTICE M.JEYAPAUL
Crl.O.P.No.7156 of 2007
and
M.P.Nos.1 and 3 of 2007
1. Dennison Paulraj
2. Baby Mercy
3. G.Devasagayam
4. Johnson Gunaraj Devasagayam
5. Jasmine glory
6. Jhansi Rani Petitioners
vs.
Mrs.Mayawinola Respondent
Criminal Original Petition filed under section 482 Cr.P.C. seeking to call for the records pertaining to the private complaint filed by the respondent in C.M.P.No.1772 of 2007 in unnumbered M.C. Of 2007 pending on the file of Judicial Magistrate II, Poonamallee and quash the same as against the petitioners.
For petitioners: Mr.M.Venkataraman, Senior Counsel
for Mr.V.Krishnakumar
For respondent : Mr.Ramasubramanian for
M/s.Ram & Ram
ORDER
The petition is filed seeking to quash the private complaint taken on file in C.M.P.No.1772 of 2007 pending on the file of the learned Judicial Magistrate II, Poonamallee.
2. The sum and substance of the petition filed by the respondent, who is the wife of the first petitioner herein, invoking the provision under section 23(2) of the Protection of Women from Domestic Violence Act 2005 (in short the Act) read with rules 6(4) and 7 of the Rules framed therein is as follows:-
The respondent herein married the first petitioner herein on 5.7.2004 at CSI Trinity Church, Avadi. The respondent lived with the first petitioner in the matrimonial home. All the petitioners herein started harassing the respondent. Having made sarcastic comments on the shortage of cash and jewels and about the quality of the articles given to the respondent during her marriage by her parents, started pressurising the respondent to bring more money from her parents. The second petitioner who is the mother-in-law of the respondent, ill-treated her without even providing proper food. She was not allowed to take rest. The second petitioner extracted work from morning till evening and treated her as maid servant. The respondent, therefore, suffered mental agony eversince her pregnancy and got depressed. She also underwent psychological and emotional abuse, insults and intimidation from the petitioners herein on a day to day basis. The petitioners also made an attempt to abort the pregnancy of the respondent by giving some tablets and papaya fruits. The respondent had to leave the matrimonial home during her pregnancy with tears. The first petitioner had filed a petition seeking judicial separation setting out all sorts of baseless allegations against the respondent. The petitioners threatened the respondent and her parents not to contest the matrimonial proceedings pending before the Family Court, Chennai. They have also warned that if the respondent continue to contest the matrimonial proceedings launched by the first petitioner, the petitioners would engage mercenaries to kill the respondent and her parents along with her child. For the last six months, the respondent received unanimous phone calls threatening her and her family members with dire consequences, if she chose to contest the matrimonial proceedings filed by the first petitioner. The respondent and her family members were threatened not to interfere with the second marriage of the first petitioner with some other girl The respondent also suffered mental agony and on account of which her general health got deteriorated. The respondent also has filed application praying for protection order and residence order to live with the first petitioner in the matrimonial home with her child. Therefore, the respondent has prayed that the petitioners should be restrained from wielding any threat or indulge in any violence or giving out intimidation to the respondent and her child and her relatives. She has also sought for re-entry along with her child to the matrimonial life with the first petitioner
SHEKHAR MISHRA
(Expert) 30 September 2008
Dear Manish,
Arvindjee is right.DV Act is not retrospective.
Even the judgment you have posted confirms this fact.
Guest
(Expert) 30 September 2008
As per the judgement restrospective.
Legal Fighter
(Querist) 30 September 2008
8. On a careful perusal of section 31 of the Act, it is found that the act of domestic violence does not attract penal consequence as per the Act. Only if a protection order is passed and the respondent in the main petition violates the protection order passed by the court, then such act of breach of protection order is construed as an offence. The penal consequence emanates from the date of protection order passed by the court. But, it does not date back to the act of domestic violence committed by the husband and his relatives. Therefore, it is farfetched to contend that the provisions of the Act can be invoked only if any domestic violence is committed after the Act came into force. The court is competent to take cognizance of the act of domestic violence committed even prior to the Act came into force and pass necessary protection orders. The Act can be applied retrospectively to take cognizance of the act of violence alleged to have been committed even prior to the coming into force of the Act.
G. ARAVINTHAN
(Expert) 30 September 2008
Generally all the Special Acts on Criminal Law were not retrospective
K.C.Suresh
(Expert) 01 October 2008
Ministry of Women and Child Development had issued a notification to bring it into force from 26th October, 2006. The Act was passed by the Parliament in August last year and assented to by the president on 13th September, 2005. But implementation was pending as detailed consultations will required with the State and other agencies for framing the rules.The Ministry has simultaneously issued another notification laying down the rules framed for the implementation of the Act. These rules provide for, among other things, appointment of protection officers, service providers and counselors. Action to be taken in the event of the respondent breaching the protection order passed by the Magistrate in favour of the aggrieved woman is also prescribed in these rules. Both the notifications are now available on the Ministry’s website www.wcd.nic.in .
Legal Fighter
(Querist) 01 October 2008
i agree that the act came into force on 26.10.2006 but its operation should be prospective as its a new act and quasi-criminal in nature. the courts are taking different views in terms oe being retrospective.
can i ask supreme court to clear this ambiguity by sending a letter?
Manish Singh
(Expert) 01 October 2008
Dear Mr. Mittal.
this act is not retrospective.
You once again go through the said judgment and will get to knoew the facts.
The followwing lines are the reason for ambiguity but it doesnt say that the act be implemented retrospectively. the judiciary can not on its own implement an act retrospectively when there is no provision for the same is provided by the Legislature.
"The Act can be applied retrospectively to take cognizance of the act of violence alleged to have been committed even prior to the coming into force of the Act"
These lines are said since the act of domestic violence is in continuance nature hence one has to look into the acts of the accused in erms of domestic violence even prior to coming the Act in force. All the acts of the accused as a whole constitutes domestic violence so one is bound to look into the things happened before the implementation./
Legal Fighter
(Querist) 01 October 2008
doesn't this make it retrospective? Otherwise if its not retrospective how can a court take congnizance and punish the respondent?
Kiran Kumar
(Expert) 05 October 2008
the judgment referred by Mr. Mittal above, in fact gives retrospective effect to the DV Act.
lets c some more law in this context.
let this query be opened for further discussions.
Legal Fighter
(Querist) 05 October 2008
can i send a letter PIL to Supreme Court asking for clarity on this point? Will supreme court entertain such letter PIL?
Aniruddha.P.Pawse
(Expert) 05 October 2008
Not Retrospective You can sent a letter to CJI SC.
SANJAY DIXIT
(Expert) 05 October 2008
Nice point raised by Mr Manish Mittal.
Also thanks for the judgment of Madras High Court.
Earlier to this I was in thought that DVAct has no Retrospective effect.
But the above judgment gives the DVAct a Retrospective effect.
Legal Fighter
(Querist) 05 October 2008
Different courts are giving different views for retrospective operation of DV Act. There is as such no clarity and the courts are using their sole discretion in this matter. The matter will remain ambigious till the time we get a verdit from Supreme Court.
Adv.Shine Thomas
(Expert) 10 October 2008
Dear Manishji, The judgment delevered by the single judge is perversive and has gone beyond the purview of the section 482 of the Cr.p.c. The reasons shown by the court is baseless and the same has to be overruled by the appellate court for tha sake of criminal justice. If retrospective effect is not given by the Parliament ,no court can simply presume that it has retrospective effect. Court has no infallibility.That is why the appeal courts are constituted.If there was earlier harassments there are so many provisions in the I.P.C also.The Chennai court deleberately avoided the fact that she waited these days to file the present petition to invoke the ACT,which give more power to a Magistrate than a District judge. Please file an appeal which would be allowed.
Manish Singh
(Expert) 23 October 2008
no the judge never said that the act is retrospective but he only said that the offence commited by the accused is of continuance nature and it was continued even before of the act coming into force so the application must be applied to the acts of the accused for the prior acts to constitute the offence as a whole.
I shall request the members to go through the case thoroughly and then give your opinions.
THE SC is not going to entertain this kind of PIL since the said implication
of any act has been done several times by the judiciary and it is the way to decide amount of offence commited by the accused.
ritu bhadana
(Expert) 03 April 2009
i thanx mr. manish manish mittal for providing the judgment........the act is retrospective
