@ Sh. Assumi development is mentioned in last para
A sufferer's Perspective
Mentioned below are couple of debatable issues that needs clarity from the legal authority as far as Protection of Women from Domestic Violence Act, 2005 is concerned.
These are interpretations of & questions raised by a person – a simple common man who suffered and is still continuing to suffer at the hands of a cantankerous wife.
One should not forget the fact that, these laws are dealing with natual instincts and behavioural aspects of a human being, which needs a very delicate approach. No welfare intetion will be achieved by using any type of force, either by law or otherwise. It will only end up creating unrest in different forms, which is dangerous to health & wellbeing of the society and social fabric will be torn apart.
The basic questions here are:
a. What sort of a law is this Protection of Women from Domestic Violence Act, 2005? Is this an act to provide more protection to women who are deprived or is it meant to be an assassins tool to black mail and for legalising the extortion?
Can any piece of legislation be a diktat?
b. Are all the provisions of the act are consitent with the fundamental rights guaranteed by the constitution of India to its citizen? Does tha act has any voidable provisions on the ground that they are most arbitrary and violating the fundamental rights guaranteed by the Constitution of India?
c. Now, do we need such a piece of legislation to be operational retrospectively?
d. How many more families are to be broken by this act before the legislation & judiciary considers amendments to this act and other related acts to make it more gender neutral?
1. The act is passed under Article 14, 15 and 21 of Constitution of India – Now the question is, whether any of the Articles under which the act was passed prevents a husband from defending himself or deprive him of his legitamate right of his liberty? It is important to take a look at this law in the light of respective Articles and also in the light of Article 13(2) of Constitution of India.
I. The Articles as such are reproduced below in case feminists have forgotten:
Article 13(2)
The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
Article 14 : The state shall not deny to any person equality before law or the equal protection of laws within the territory of India.
Article 15 : (1) The state shall not descriminate against any citizen on the grounds of religion, race, caste, s*x place of birth or any of them (2) No citizen shall, on grounds only of religion, race, caste, s*x, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children.
[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]
[(5) Nothing in this article or in subclause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
Article 21 : No person shall be deprived of his life or personal liberty except according to procedure established by law.
II. Now the prudent questions:
1. Under which law, the women was treated unequally in Indian legal framework contest first of tell readers? Socially may be yes to certain extent, and those are mainly because of vast customs & traditions followed in different geographies of this country. But in a Metropolitan area, it is totally different. Women has broken her shackles and on equal footing with the man in all respects. Rather, she is making the best use of the social & political opporunities provided.
2. In the advent of giving more protection to women can the law take away the husband's or male partner's fundamental rights? Is this the interpretation of Article 15(3) of Constitution of India? If yes, will it not violate Article 14, 15(1) and Article 21 of Constitution of India? Or is it that Article 15(3) is more of a social measure, which is meant for upliftment of the society and to assist the weaker s*x to come to the fore front in all walks of life, be it education, profession, employment, politics, industry segments etc?
III. Now take a look at the following sections from The Act, 2005:
Section 19(1)(b) directing the respondent to remove himself from the shared household Now the question is, under which law in the past, was the empowered the Magistrate to direct the husband or male partner to remove himself from his own (either inherited or otherwise) house? Will it not violate Article 21? Is this the intention of the Article 15(3) that is making any special laws for women & children? What is being promoted by this section? How does the law infringe upon the rights existed by the virtue of the Constitution and other laws that are in force? Section 19(1)(c) creates a fear in the mind of the respondent that if he enters, any thing can happen to him and all sorts of allegations would come up and hence allows the female partner (so called aggrieved person) to black mail the husband or the male partner. Whether this would mean, the law is legalising the blackmailing? Will it not become legal terrorism?
IV. Section 19(1)(e) – restraining the respondent from alienating or disposing off the shared household or encumbering the same;
Now the question is, what if the husband / MIL is in need of some urgent funds to handle some emergency situations, and s/he decides to create an encumbrance and the DIL/wife with ulterior motive, comes in the way and files a case under The Act, and the Magistrate, passes the restraint order under this section, what is that the MIL/husband is expected to do to handle his emergency situation?
1. Under the present property & assets related Acts, if the property is a self acquired one, no one including wife or children can prevent the man from doing whatever he wishes to do with it. Right or wrong educate me ! He has all the rights to gift it even to a third party, whether or not they are related to the man or donate it to some charity through a will. If the property is a inherited one, only the children of a man have a say in it, and if the childern are minor, wife (being mother) needs to put her consent on such an alienation. For taking some loans by pledging the inherited property, none can stop. But here, wife, with ulterior motives can always abuse this act and create all sorts of rukus.
2. Take a look at the S.19(4) of The Act – An order under sub-section 3 shall be deemed to be an order under Chapter VIII of Code of Criminal Procedure, 1973 and shall be dealt accordingly.
This is all about giving the bonds of good behaviour and keepting peace with the aggrieved person, even though the husband may not be at fault at all. Again the question is, all these requires formal proof and cannot be dealt on just prima facie or domestic violence likely to happen.
What next, ask for kidney of Mother-in-Law (in the name of domestic relationship) since husband's Kidney does not stand a cross match ! Go ahead after all UNIFEM’s
US$ 1,40,000/- funding that you received for two years (2006 – 08) have to be justified to them when they asked for Report from Lawyers Collective whose detailed Report you madam till date have not provided to UNIFEM tabhi funding bhi band ho gayi 2008 onwards including that of your sister NGO hai na ki nahi madam asali kahanai yeh hai .................
