Roshni B.. (For justice and dignity) 18 September 2011

Domestic violence cases drag on for years, say lawyers

CHENNAI:

Intended to secure speedy justice for victims, the Prevention of Women from Domestic Violence Act, 2005 mandates that cases should be disposed of within six months.

However, lawyers at the Madras high court say there are several instances when cases have dragged on for as long as two years, primarily due to a lack of efficient supervision at different stages.

V Kannadasan, former special public prosecutor for the human rights court, is still fighting one such case on behalf of his client whose husband, a software engineer earning close to Rs 70,000, left her without any means to look after herself and their three-year-old daughter.

"He filed his counter only this week though we lodged a complaint against him in 2009. Our petition has not even been taken for an enquiry. The intention of the legislation is to get speedy justice for women," he said.

While magistrate courts have the jurisdiction to entertain petitions under the Act, civil courts - including family courts - can try the case only if there is a related suit pending before them, Kannadasan said. The social welfare department could create awareness among its officers and the high court could also consider sensitizing the subordinate judiciary to help reduce the delay, he said.

The Act aims at safeguarding women from physical abuse, s*xual abuse, verbal and emotional abuse such as name-calling, specially with regard to not having a child or a male child, and economic abuse, wherein a woman is deprived of economic or financial resources.

D Prasanna, president, Women Lawyers' Association (WLA), said the delay arose primarily during the counselling carried out just after a complaint is submitted.

"Once a complaint is submitted to protection officers who sit at the district collectorate in Chennai, an intimation is sent to the opposite party, calling them for preliminary counselling. The delay occurs here because several people don't respond and so, notices are sent repeatedly. Authorities should arrive at a system where after a specified number of such attempts, the case will be referred to the magistrate for hearing," she said.

Pointing out that a legal aid clinic had been set up exclusively for cases under the Domestic Violence Act at the high court, the WLA president said it would help to have a protection officer present in the same building. "We have two rooms which are furnished and airconditioned but one of them is always closed. A protection officer can be easily accommodated here. Surrounded by judges and advocates, protection officers will be persuaded to move files faster compared to an atmosphere where they sit removed from the court. It will help make the process more efficient," she said.

https://timesofindia.indiatimes.com/city/chennai/Domestic-violence-cases-drag-on-for-years-say-lawyers/articleshow/10023680.cms

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Tajobsindia (Senior Partner ) 19 September 2011

Three wordings caught our attention in this titilating NEWS posting!

1. “reconciliation delays”

2. “Prime facie”

3. “interim maint.”

Take a look at following Section of the Bharat Ratna Act.

Section 15: In any proceeding under the act, the Magistrate may secure the services of such person, preferably a woman, whether such person is related to aggrieved person or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.

Now the question is; If the Magistrate secures the services of any third person and if that person happens to be relative of the aggrieved women, will the law ever take its own course? Will it not deprive the man of his right to defend? Will it not violate Article 14 of Constitution of India?

Now the question is; What if the woman is cantankerous in nature, should the man and the other family members keep suffering? Is this not open for abuse of process of law?

Section 18: The Magistrate may, after giving aggrieved person and the respondent an opportunity being heard, and being prima facie satisfied that domestic violence has taken place or likely to take place, pass protection order in favour of the aggrieved person and prohibit the respondent from 

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by

the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used of held or enjoyed by both parties, jointly by the aggrieved person and the respondent or singly by the respondent including her stridhan, or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependents, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other acts as specified in the protection order.

Now the questions are;

What are the guide lines for a Magistrate for being prima facie satisfied? Just affidavits from the aggrieved person or does he require something more? How does the Magistrate come to conclusion that the domestic violence is likely to take place? Just statements and affidavits of the so called aggrieved person or does he require something more?

Take a look at sub section (d) – What if a lady is making all sorts of communication and enraging the respondent by all such sorts of communications, what is that he is expected to do? Respond or not to respond? If these sorts of attempts are brought to the notice of the Magistrate, what is that he is expected to do? Just ignore or give some directs of restraint to aggrieved person?

Take a look at sub section (e) – If the respondent is prevented from operating his bank accounts held singly, say his salary account, without of the leave of Magistrate, will it not violate Article 15(1) and Article 21 of the Constitution of India? If there is any maintenance order, the respondent may be directed to pay the same to the aggrieved person, if he does not pay, the Magistrate may direct his employers or debtors to deduct the awarded amount from the salary and remit the same to court or direct the banker to debit the respondent’s account to the extent of award and remit the same with the court under Section 20(6) of the act. But all these require some formal proof to be provided by the aggrieved person, but here every thing just works on prima facie.

In other words, the above section(s) are saying that do not disclose details of your income, bank accounts to your female partner may be your wife as well , thereby affecting the very basic trust & understanding that must be existing between the husband & wife. In the advent of domestic violence and protection order, the law is promoting that there should not be any element of trust between the husband & wife and promoting the individual ego, which is dangerous to family welfare and hence social harmony.

Let us take a look at; Section 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 keeping 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.

Take a look at Section 20(1)(d) the maintenance for the aggrieved person as well as her children, if any, including the order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force.

First thing, to note here is, previously, there were some ceiling on the maintenance that could have been ordered under Section 125 of Code of Criminal Procedure. But now such ceiling has been removed by an Amendment through Central Amendment Act 50 with effect from 24-09-2001 and reently Hon’ble Apex Court also clarified on the same.

And also, the clause of providing interim maintenance in deserving cases has been added by the same Amendment Act with effect from 24-09-2001.

One need a proper explanation from the legislature, why again one more Act providing the same relief, that too over & above an order made under section 125 of Cr.P.C? Does this not violate the Article 14 and is it not open for abuse till that time my fellow brohers will remain complainant about delay and latches in “implementing in right spirits the Bharat Ratna Act”?