@ Anonymous Iyer
Here is the Article written by Tajobsindia on 498 A , Domestic Violence etc who was very active on this Forum but as of date he is not so active .He has helped a lot of people on this forum with very good and professional Advice .
ABUSE OF WOMEN’S EMPOWERMENT LAWS
Introduction
India has witnessed the phenomenon of domestic violence. This phenomenon is neither unique, nor alien to India. It can be said that it is prevalent all over the globe, but the quantum of the same may vary from country to country. In India, from 1978, the incidence of this phenomenon was rising. This rise was not totally independent of factors. In some cases, the same was linked with demands for dowry.[1]
Before the very first woman empowerment amendment of the Indian Penal Code, 1860, the situation was as aforesaid. Therefore, to combat the same, the Criminal Law (Second Amendment) Act, 1983, was passed which brought into the IPC the section 498A, which deals with cruelty to the woman by her husband or any other relative of her husband. To provide it with the claws, the offences under this section were made cognizable, meaning that the person(s) against whom complaint was made could be arrested without a warrant; non-compoundable, meaning that the matter could not be compromised between the parties concerned; non-bailable, meaning that the person(s) arrested could not be released from police custody despite attaining a bail.
This could have been considered a necessary amendment, in context with the increasing incidences of domestic violence against women. Subsequent to this, other amendments were made to the IPC, for facilitation of protection of women in cases related to extraction of dowry. Recently, the Protection of Women from Domestic Violence Act, 2005, came into force in 2006. This piece of legislation specifically tackles the issue of domestic violence, and provides the (affected woman) with a variety of remedies.
Recently, a few voices in the great crowd have been claiming that these empowerment laws, which were meant to protect the rights of women, are now being used as weapons by the women, against their husbands and in-laws. This certainly is a serious accusation in the face of rising incidences of domestic violence being reported every year. These few voices are men’s rights organisations which have come across harassed individuals and their families. The investigation of the current situation is, therefore, necessary to determine if the said accusations are true.
Research Methodology
Aims and objectives
The primary aim of the paper is to study the prevailing situation in light of the accusations levelled by the men‟s rights organisations regarding the misuse and abuse of the empowerment laws made to protect women from cruelty and domestic violence. Its further aim is to study the effects upon the husbands and their families, if the abuse that is claimed is true.
Scope and Limitations
The scope of this paper is limited to the study of abuses of only a couple of empowerment provisions, these being section 498A of the Indian Penal Code, and the Protection of Women from Domestic Violence Act, 2005.
Hypothesis
That the laws made to protect women are being abused by them, and that the laws might be failing in their purpose by causing more harm than good.
Structure
The paper observes a structure as given below:
- Introduction
- Research methodology
- Harried Married men committing suicides – this section deals with incidences of suicides committed by married men, either due to fear of harassment, or post harassment.
- Enduring humiliation and suffering – this section deals with the husbands and their families who have suffered as a result of false complaints against them.
- The incidence of Domestic Violence in India – in this section, a report prepared by a USAID program is used to show the incidence of domestic violence, along with data from the NCRB, which shows the reported incidences of domestic violence.
- Abuse of the empowerment laws – this section highlights the fact that the empowerment laws meant to protect the women are being abused by them.
- Maintenance: Tax-free monetary benefits? – this section deals with how maintenance may be a motive for abusing the laws.
- Results of the interviews – this section presents a summary of interviews conducted by the researcher. The respondents of the interview are Mr. Rajesh Vakharia, President of the Central India chapter of Save Indian Family Foundation, Mrs. Neena Dhulia – President of the All India Mothers-in-law Protection Forum, Mr. Santosh Patil – President of the Belgaumchapter of Save Indian Family Foundation, and Mr. P. Suresh – President of Nest of Family Harmony.
- Conclusion
Sources of data
The researcher has referred to primary sources, these being two legislations passed by the Parliament, and High Court Cases, and a report of a committee set up by the Government; secondary sources used include reports from independent as well as international agencies, various newspaper articles, and journal articles.
Mode of Citation
A standard form of citation has been followed throughout the paper.
Harried married men committing suicides
In 2008, a married man committed suicide in Nagpur.[2] A year ago, a 27 year old married man committed suicide in Pune.[3] Very recently, another case came to light, again in Pune, where a family of four committed suicide. The members of the family, which were the unfortunate victims of the suicide, were a husband, a wife, their younger, unmarried son, and his 35 year old married elder brother.[4] One might wonder the purpose of mentioning these independent incidences of suicide. If one takes a close look, one shall find that in all the cases, there are young married men involved in the acts of committing suicides.
Late in 2009, in Amravati, a married Police Sub Inspector committed suicide, with his own service revolver.[5]
All these suicides reported above are due to one reason, being the abuse of women‟s empowerment laws, by the women themselves. The suicides mentioned earlier, however, differ from the suicides mentioned earlier, in the respect that in those mentioned earlier, the married men were harassed by their wives and in-laws, where they threatened of filing cases against the husband’s family, if their demands were not met with. In the suicide mentioned subsequently, the married man had already been harassed by his wife and in-laws, by the abuse of the empowerment amendments mentioned above.
One might think that these might be random and rare cases, where the husband, being unable to handle the pressure, commits suicide. Had these been cases of more than a decade ago, it might have been right to say that these were random and rare cases. However, considering the situation today, this would not be the right choice of words.
Enduring humiliation and suffering
Suicide might be considered as a means to escape the suffering, as there might not be suffering post the death of the individual. Those who live on, despite the suffering, have to endure the same, for an unknown period, which could extend to several years.
There have been cases where based upon the false complaint of the wife, the innocent husband and his family members have been arrested, for no fault of their own. There have been absurd incidences of the police arresting family members who could not have possibly done anything wrong; yet despite their sheer incapability, a 92 year old woman [6] and a 2 month old baby have been arrested as they were named in complaints of violence meted out to women. There has been a recent case of a 46 year old rural woman being gang-raped by policemen, because along with the other members of her family, she had been taken into custody due to a false complaint lodged by her daughter-in-law against her family.[7]Even the health condition failed to prevent an arrest under this section, as a woman undergoing a dialysis treatment was also arrested.[8]
The incidence of Domestic Violence in India
In June 2004, a report was released by MEASURE DHS+, a program funded by the US Agency for International Development, better known as USAID. One of the objectives of the MEASURE DHS+ program is “to provide decision makers in survey countries with information useful for informed policy choices”.[9] The report released studied prevalence of domestic violence using data collected from nine countries, which included India. According to one Indian news agency, called Express India, this report has brought to the fore a very disturbing situation. “As many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or coerced s*x, the United Nation Population Fund report said.”[10] Something similar was reported by the Ms. magazine, a feminist magazine from the US. The report said that the Protection of Women from Domestic Violence Act, 2005 was a big step for Indian women, as “the United Nations Population Fund (UNFPA) found that an astonishing 70 percent of women who are married are beaten and s*xually abus”.[11]
The United Nations Population Fund (UNFP) report spoken of here, it is possible that it could be the same report produced by MEASURE DHS+, as data from the MEASURE DHS+ report is used to depict the incidence of domestic violence.[12]There is, however, a problem with the Indian news agency, and the American magazine. They conveniently choose to overlook the context of the 70 percent of the Indian women being abused. The UNFP webpage that hosts this data has two graphical representations of bar diagrams, based on the data derived from the report. According to the first diagram, violence against women in India by their own spouses is a plain 19 percent. The same is confirmed by the report, and it further says that the question asked regarding violence (done) was that if the woman had “been beaten or mistreated physically since age 15,[13] and the 19 percent related to the women who had been beaten by their spouse or partner, while the percentage of women beaten by anyone else was 21 percent.[14] Additionally, the report states that a single-question threshold approach was used in India. In this approach, if the woman responded positively to the first question regarding violence, only then more questions regarding the violence would be asked. If she denied it at the outset, no further questions would be asked.[15] Further, the report also states that in India, questions regarding s*xual violence were not asked.[16]
The second diagram on the UNFP website, which deals with the figure of 70 percent actually says that this is the percentage of women who somehow justify the violence done to them by their spouse or partner, and the same is confirmed by the report.17 For the issue to be dealt with now, it shall be pertinent to bring to the notice the fact that the data for the report was collected in 1998 - 1999.[18]
Using the above as a platform, the complaints lodged under the S. 498A IPC are to be analysed presently.
|
Years
|
No of cases registered under S. 498A
|
Percentage change
|
|
2000
|
45778 -
|
|
2001
|
49170
|
7.4
|
|
2002
|
49237
|
0.1
|
|
2003
|
50703
|
2.9
|
|
2004
|
58121
|
14.6
|
|
2005
|
58,319
|
0.3
|
|
2006
|
63,128
|
8.2
|
|
2007
|
75,930
|
20.2
|
|
2008
|
81,344
|
7.1
|
|
2009
|
89,546
|
10.0
|
|
|
|
|
|
From the table shown above,[19] it is seen that there is an upward trend in the number of cases reported under section 498A. One thing should still be kept in mind that the years prior to 2000, the data collected showed that only 19 percent of the women were subjected to domestic violence. Observing the data carefully shows that there has been a 96 percent rise in the incidences of domestic violence reported, through the decade. This then, among others, gives us two things that should be considered. Either it is the case that the actual rate of domestic violence may have stayed the same, or even reduced, but the number of cases reported have increased because the women would no longer tolerate being subjected to domestic violence; or, it could be that the abuse of the laws are increasing. The latter proposition can be adequately supported by the fact that in the past few years, the membership of men‟s rights organisations, which deal with false cases being filed against the innocent husbands and their families, by their notorious wives.
In the beginning, in 2005, Save Indian Family Foundation, a men‟s rights organisation which deals with the false cases against men, started as a blog. It received a response of around 40 people in a matter of fifteen days. In 2006, it had chapters in about six to seven cities of India, with each chapter having a membership of approximately 600-700 men, and by the end of the same year, the membership increased to about 8000-10000 men. In 2007, there was an increase in the membership with the total members being approximately 30,000 men. 2008 saw an increase of 15,000 more members. In 2011, the membership can be estimated to be around 1,00,000.
Abuse of the empowerment laws
In May 2007, a few months after the Protection of Women from Domestic Violence Act, 2005, came into force, a research organisation called the Centre for Media Studies conducted a study “to gauge general public knowledge and awareness about the PWDVA among the people of Delhi and some districts of Punjab”.[20] The results of the study caused the researchers to conclude that Delhiites had misconceptions about the law, because, of the 513 people interviewed, about 60 percent believed that there would be an intentional misuse of the Act.[21]
The respondents were not wrong on their part. “This Act appears to move on the presumption that all women are innocent, accommodating by nature and carry an amiable disposition. On the other hand vices and ill-behaviour are solely the forte of men.”[22] The provisions of this Act are drafted in such a way that they can be very easily abused. Section 3, which defines the term domestic violence, (unreasonably) widens the scope of violence by including terms like name calling and ridicule, which may be highly subjective. Section 18 lays down the protection orders which a woman can avail of, which do include prohibition upon the respondent from committing any further acts of violence upon the aggrieved, but then go on to prohibit the respondent from even operating the joint account that he holds together with the aggrieved. The Act also provides for residence orders (under Section 19), custody orders (under Section 21) with respect to the child, and compensation orders (under Section 22). Section 23 confers upon the Magistrate powers to grant ex parte orders. Further, section 31 provides for sanctions for breach of protection order granted to the aggrieved, and according to Section 32 (2) the proof for the same is the sole testimony of the aggrieved wife. Additionally, it even makes the offence of breach of protection order a cognizable and non-bailable offence. As shown earlier, women are believed to be innocent and carrying an amiable disposition, which is why probably the Act does not provide for sanctions upon the misuse of the Act.
Similar is the case with S. 498A IPC. Some lawyers handling the cases under S. 498A say that 90 percent of the cases filed are either false, or are based upon questionable grounds. “A lawyer, who handles the cases of Sabla Sangh, told me that in Punjab, on any random day, 75 per cent of the cases listed for hearing in criminal courts are registered under section 498A, and of these more than 90 per cent are malafide.”[23]
The Malimath Committee was probably aware of the situation. In their report, they state that the Indian women are tolerant, and may not try to break the sacred bond of marriage; and that making the offence non-bailable and non-compoundable shall make reconciliation almost impossible. They also state that less tolerant women may, in the heat of the moment, lodge a complaint even when the act is trivial. “The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody.”[24] Again, even in this case, reconciliation cannot be sought due to the aforesaid reasons. Therefore, after having formed an opinion that the law helps neither the wife nor the husband, they put forth a suggestion to make the offence compoundable and bailable.[25]
As a response to this, Centre for Social Research came out with a research study where it said that nearly five crore women had to face domestic violence in India, and that only 0.1 percent of the cases violence were being reported under S. 498A IPC. It also claimed that the conviction rate was very low when only S. 498A IPC was used, and that if the complaint was filed under more than one section, only then would be the conviction rate be high. It concludes saying that S. 498A IPC needs to be strengthened.[26] The report, however, neglects the aspect of what the husband and his family have to go through once a complaint is lodged against them.
In a recent report made for World Health Organisation by HelpAge India, which dealt with the issue of elder abuse in India, it was found that there was “use of crime as a weapon for elder abuse”.[27] The empowerment laws made to protect the women from dowry harassment and domestic abuse were being grossly misused by the young daughters-in-law against their aged parents-in-law.[28]
Recently, the chairperson of State Commission for Women (SCW), Orissa, said that the atrocities committed by women against their husbands were increasing. The SCW has received about 567 such cases, out of which a great number of cases have been resolved. The chairperson maintains that the number of such cases is showing an upward trend. „„Contrary to popular belief, torture of men does not take place in urban areas only. It is rampant in villages also.’’[29]
Maintenance: Tax-free monetary benefits?
The picture becomes even grimmer when issues relate to divorces and the results of the same are taken a look at. One aspect of the fact that false complaints are registered against the husband and his family under section 498A may be the alimony and maintenance. In fact, a lawyer admitted that these provisions were being grossly misused because they wouldprovide the complainant with huge amounts of tax-free money. Another lawyer said that these provisions are used during the divorce for gaining higher alimony.[30]
There are also cases where the alimony demanded is so high that it becomes difficult for the husband to pay the same. In one case, after two and a half months of marriage, a woman wanted her separated husband to pay her alimony of2.5 lakhs per month, so that she could pursue her education in the US. Significant issues here are that the salary of the husband, as stated by him, was only73,620, and that he had already been paying an interim maintenance of12,000 to his separated wife, who was a Pune based dentist. Fortunately, the court refused to enhance the alimony to that extent due to the extremely short duration of marriage.[31] In yet another case, re. Amit Khanna v. Priyanka Khanna,[32] the appellant had to pay alimony of45,000 per month, despite his monthly earning of only41,000 per month. This was so not only because the wife claimed that the husband was a man of reputation and owned several movables and immovables, but the assumption that even in the Income Tax returns, the parties conceal their real incomes, and show only false, lower figures. The High Court reduced the amount of alimony payable saying that when such orders are passed, the earnings of the man assume pertinence, not the earnings and properties of other members of his family.
However, even these two cases cannot be as bad as the case to be discussed presently. In order to be able to pay the alimony of8,000, a man in Punjab approached a court so that he could get permission to sell his kidney, as it was not possible for him pay the alimony with his salary of 3,600.[33]
These are only a few instances; yet they cannot be dismissed as being isolated and rare, because there definitely an upward trend in the incidence of these cases.
Recently, the National Commission for Women (NCW) was considering a few amendments to be made to Section 125 of the Code of Criminal Procedure, which relates to making orders for maintenance. In this, the NCW sought to add that the maintenance shall also be payable to the stepparents and stepchildren of the wife; it sought to remove the provision which would make the payment of maintenance unnecessary in case adultery was proved, because it said that adultery is a frequently used excuse taken by men to deny maintenance to the wives; and, it further said that irrespective of the means of the man, he shall have to maintain his family, while the section talks about men having sufficient means yet refuse or neglect to maintain.[34] It is difficult to understand why men should be burdened so much.
Results of the interviews [35]
The abuse of the law is not restricted to either of urban or rural areas. It happens wherever the husband and his family have even an iota of wealth. Similarly, it does not depend upon the level of education of the wife. Though there may be cases where urban, educated women are abusing the law, mere knowledge that the laws can be abused for their ulterior motives is enough. These wives who abuse the laws are plain intolerant.
Conflicts arise between a couple because of clash of expectations. In cases where the wife earns, she does not want to share the household expenses. Taking the case of Bangalore, there are many wives who marry software engineers expecting a luxurious life. However, the husband realising the instable nature of his job which gets drastically affected due to recessions, tries to make provisions for the future by saving; or he might save for unforeseen contingencies. Thus, even if his earnings are high, he may not be able to provide a luxurious life.
The wife not only finds it difficult to mingle with the family of the husband, she also deliberately tries to stay aloof from the family members. She considers the parents and relatives of the husband as a burden upon her family, which is why she wants to get rid of them. She may also take to antics where she tries to show the husband how good a wife and daughter-in-law she is, and out in the neighborhood and the society, she may just plainly defame the whole family.
For a start, the wife goes to the police station not to lodge a complaint, but with the intention that the police officer in-charge shall call her husband and reprimand him. This she primarily might do to keep the husband in her control. When this trick stops working, she might just go ahead and lodge the false complaint. There are also other reasons why the wife may do so, with these being:
- Marriage happening against, or without the consent of the wife;
- The extramarital relationship of the wife;
- Selfish motives, like demands for a luxurious life which is beyond the reach of the husband;
Was the DV act enacted mainly that they wanted a vote bank during the elections at that period who so ever was in power since as stated by our uncle Tajobs india below its nothing but a collection of earlier laws enacted in a gender biased manner for the fairer s*x
Bharat Ratna DV Act interpreted in terms of Rule 6 sub Rule 5 in relation to Hon’ble M.P. High Court Judgment re. Madhusudhan Bharadwaj & Ors. Vs. Mamta Bharadwaj [2009 CrlLJ 3095]
Bharat Ratna DV Act 2005 has been classified as a Civil Law and the only one penal provision has been notified that is S. 31.
Now, looking at the Act 2005, it's various Sections and the rules defined in Bharat Ratna Domestic Violence Rules, 2006, the fundamental question one need to answer is whether the Bharat Ratna DV Act 2005 is a Civil Law or a Criminal Law?
More women groups have said that it is a civil law and as current laws does not provide ample protection and the remedies, such a law was required to restrain men from committing Acts of domestic violence.
Now prudent persons raises the following questions:-
A. It is touted as a Civil Law, but a ld. Magistrate hears the case and the cases are entered / indexed / classified as a Criminal Miscellaneous case and not as a Civil case. Of course even a family court can try these offenses. The family court is a special court with magisterial powers to deal with cases under S. 125 of Cr.P.C.
B. Applicant / aggrieved person is asking for quick remedies like maintenance and residence orders, child custody etc. - Applicant / aggrieved person have S. 125 of Cr.P.C, which is also tried by a Ld. MM providing similar relief’s and of course, Ld. MM is adapting the procedure as defined in S. 125 to 128 Cr. P. C. - Refer to Rule 6(5). Even S. 125 CrPC has a penal provision in terms of S. 125 (3), even though with Proviso.
C. Applicant / aggrieved person call this a civil law, a piece of social justice and not a criminal law. But Applicant / aggrieved person involves police - Refer to S. 5 & S. 9 (1) (b) - who otherwise cannot be involved without the support of Cr.P.C. (The Code in short). Police has no business to get involved in civil matters that also in family matters.
D. Applicant / aggrieved person calls this a Civil Law but S. 28 (1)unambiguously mentions that - "Save as otherwise provided in this Act, all proceedings under S(s) 12, 18, 19, 20, 21, 22 and 23 and offenses under S. 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)" - Now it is a Civil Law but bound by Criminal Procedure Code. Further S. 28 (2) allows the Ld. MM to lay down his own procedure while disposing the applications made under S. 12 & Section 23 (2), which has very dangerous implications. Many a times (all most all the times qua) a lady uses this provision to avoid the process of evidence and cross-examination and hence provides a preference to a women – Which is a Clear violation of Article 14 of Constitution of India. Further, Rule 6 (5) specifies that all applications under S. 12 are dealt with and Orders are enforced as defined in S. 125 of Cr.P.C.
To get more clarity as to whether the Bharat Ratna DV Act is a Civil or a Criminal Law, one has to do a conjoint reading of the S. 28 (1) & (2) of the Act, Rule 6 (5) & S. 125 - 126 of Cr.P.C.
1. According to Rules - Rule 6(5), the procedure to be adapted is as defined in S. 125 Cr.P.C., which in turn clearly defines in S. 126 of Cr.P.C the actual procedure to be followed. Further S. 126 (2) of Cr.P.C clearly mentions that all evidences must be recorded in presence of the party against whom an order is proposed to be made and the all the evidences are recorded as defined in summons-cases.
Now take a look at Chapter 20 & 21 of Cr.P.C which deals withsummons-cases & summary trials respectively.
1. S. 262 (1) in Chapter 21 of Cr.P.C very clearly defines that one need to follow the procedure defined in Chapter 20 of Cr.P.C, i.e., as defined for summons-cases are to be followed unless explicitly mentioned.
That means, that even for any trials on the applications (remember Application filed u/s 12 (1) of the Bharat Ratna DV Act is defined just an application not a complaint) filed under S. 12 of Bharat Ratna DV Act 2005, recording of plea, if not a formal statement of charge is required as per S. 251 of Cr.P.C. If one considers that the statement of objections filed by the respondent as his plea, the magistrate has the power to convict the respondent on plea of guilty as per S. 252 of Cr.P.C or proceed to recording of evidences as defined under S. 254 of Cr.P.C., and finally conclude the case.
Now, it becomes clear that for disposal applications filed under S. 12 of the Bharat Ratna DV Act, 2005, procedure defined in summons-casesmust be adapted.
The very classification of cases as Summons-case or Warrant case are applicable only in a criminal law and not for a Civil law. Hence, as the procedure adapted for disposal of applications filed under S. 12 of DV Act 2005 is that of summons-cases, the very Act must be held as a criminal law and not as a civil law. The fundamental principle is that "no criminal law is retrospective in nature" and if it is given such retrospective effect, it will be clear violation of Article 20 (1) of Constitution of India.
To get more clarity, refer to the Citation published in 2009 CrlLJ 3095, High Court of Madhya Pradesh (Gwalior Bench) - Case No. Cri. Rev. 826 / 2007 decided on 31/3/2009 between Madhusudhan Bharadwaj & Ors. Vs. Mamta Bharadwaj.
With all the legislation already enacted to provide social justice, speedy & civil remedies etc., was there a need to enact a new law & give it a retrospective effect? Legislation could have amended the existing legislation such as S. 125 of Cr.P.C to include residence orders, (which otherwise or any way provided by many marriage laws including Hindu Marriage Act and / or HAMA).
Giving it a retrospective effect is still worst. We must be aware that a married women cannot levy dowry charges after 7 years of marriage. This law negates that limitation (saving recent Judgment of Hon’ble SC in a MCD case where ex wife files Bharat Ratna DV Act and Hon’ble Bench of SC dismissed the appeal stating CrPC limitation S. 468) In the name of the "shared household", the husband is thrown out of his own earned house or from his inherited house under the disguise of preventing further violence. In the advent of providing speedy remedies, man's voice is snubbed. It is assumed under the disguise of "prima facie" that man is always at fault. It is always assumed that women never tell lies and whatever she tells is gospel truth! Husband resists, charge him under S. 31 of the Bharat Ratna DV Act, make a separate case under S. 498a IPC, Dowry Prohibition Act etc. In Kannada there is a proverb - "Bull gave birth, tie it in backyard". No one ever attempts to check whether a Bull can ever give birth? Which is a clear violation ofArticle 14 of Constitution of India.
It is very clearly established that a criminal law cannot be retrospective, but a civil law can be applied retrospectively, if it is unambiguously provided in the Act itself with a properly justified reason & with a clearly defined effective date in the past. Neither the entire Bharat RatnaPWDV Act, 2005 nor the Rules mentions this unambiguously anywhere in the whole Act or in the Rules published in Gazette of India or even it has any mention as Legislative intent anywhere if one carefully reads 60 off debates of Lok Sabha and Rajya Sabha combined together till this Bharat Ratna DV Act was passed by Legislature. The language of the Act does not even give any hint that it can be applied retrospectively. Legislature has the power to issue a GO to that effect even before an Act comes into force, if it is so intended. There is nothing to that effect in the Act or in the rules and there is no GO as well. With the power under S. 37 of the Bharat Ratna DV Act, the legislature could have made the Rules applicable retrospectively, but the Government has not done it so. Hence the Act cannot be applied retrospectively. If it is allowed to Act retrospectively, then it will be a clear violation of Article 20 (1) of Constitution of India.
For the retrospective operation of civil laws, to get more clarity, let us refer to the following rulings of the Hon'ble Supreme Court of India.
In Re.: 1976 (1) SCC 906 - Govind Das & Others ETC. ETC Vs. Income Tax Officer & Another on 18/12/1975
In Re.: 1981 (4) SCC 93 - Accountant General & Anr ETC. ETC Vs. S Doraiswamy & ORS. ETC. ETC on 13/11/1980
In Re.: 1994 (5) SCC 450 - Union of India Vs Tushar Ranjan Mohanty on14/07/1994
In Re.: 2006 (2) SCC 740 - S.L. Srinivasa Jute Twine Mills P. Ltd Vs.Union of India & Anr on 15/02/2006
Now coming to the question as why S. 26 is included in Bharat Ratna DV Act, 2005, allowing a lady to claim the any / all reliefs u/S. 18, 19, 20, 21 & 22 of the Bharat Ratna DV Act 2005.
The presumption here is that a lady, who is subjected to violence, cruelty etc., or her spouse would have initiated some proceeding either under any marriage Act or S. 125 Cr.P.C or under other criminal or civil provisions prior to commencement of the Bharat Ratna DV Act on 26-10-2006, and as there are some short comings in previous provisions such as:
1. neither the marriage Acts nor the Cr.P.C 125 nor IPC S. 498a provides for Protection / restraint orders to be passed.
2. while the marriage Acts provide for residence & child custody orders, Cr.P.C. 125 & other criminal provisions does not explicitly provide for such reliefs.
Hence in order to enable a lady to get the protection orders & other reliefs as defined in S(s) 18, 19, 20, 21 & 22 of the Bharat Ratna DV Act, S. 26 must have been included. This explanation also means that Bharat Ratna DV Act 2005, by the virtue of it is not retrospective in nature, but only certain Sections – viz. S(s) 18,19,20,21 & 22 - of the Act can be read along with the other applicable law in force under which the Application / complaint has already been filed. That means that apart from passing the order for reliefs as defined in specific Acts, the magistrate or the family court judge can also pass protection / restraint order subsequent to the whole Act coming into force, provided that such cases / disputes between the parties are pending before the courts.
Now, it becomes very clear that as the Bharat Ratna DV Act, 2005 is fundamentally a criminal law, retrospective operation is barred under article 20 (1) of the Constitution of India. It is like saying"they were unequal some 20 years ago and by making this Act operational retrospectively, legislature is removing that inequality that existed in the past" and such a bald reasoning is not allowed under Constitution of India.
The real issue here is the order for interim reliefs under S. 23 of the DV Act. Interim reliefs are provided upon receiving a mere affidavit by the Applicant / aggrieved person overlooking the applicable laws at the time when the cause of Action has arisen, and the violation of the same leads to cases under S. 31 & also under S. 125 (3) of Cr.P.C.
Now how does one question that the ld. Court cannot hold the person guilty for violation of interim Order as interim Order would have been made subsequent to commencement of the Act and it's violation would definitely become contempt of Court?
About inclusion of S. 26 in the Bharat Ratna DV Act:
1. All or any reliefs under S(s). 18,19,20,21 & 22 of the Act can only be claimed along with the application / petition filed u/s 12 (1) of the Act or under any other provisions under which the cases may be pending before a criminal Court or a family Court or a civil Court but not independently.
2. If the reliefs under those Sections are claimed along with petition filed u/s 12 of the DV Act, one need to see, when the cause of Action has arisen, whether the Act was in force at that time or not?. If the cause of Action dates prior to commencement of the Act, then the very petition filed u/s 12 (1) becomes null & void and no reliefs can be granted.
Madras HC decision can be considered as right in holding the violation of protection order is punishable under DV Act S. 31 is also my view.
Let us look at it from this perspective.
According to S. 26, S(s). 18,19,20,21,22 of Bharat Ratna DV Act can be read with along with either HMA, or Cr.P.C 125 and protection & orders for other reliefs can be passed either by a magistrate or by a family judge. DV Act is retrospective only to within the scope of S. 26 is my view. But filing fresh petition under Section 12 (1) of the Act is barred if, the cause of Action dates back prior to 26-10-2006. It is clearly held by Hon'ble Supreme Court in 2006 (2) SCC 740 - S.L. Srinivasa Jute Twine Mills P. Ltd Vs. Union of India & Anr on15/02/2006 : Case no. : Appeal (civil) 6777 of 2003:- "Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only ’nova constitutio futuris formam imponere debet non praeteritis’. In the words of LORD LANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enActment or necessary intendment." (SeeDelhi Cloth Mills & General Co. Ltd. v. CIT, Delhi AIR 1927 PC 242)."Every statute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of trans actions already past, must be presumed to be intended not to have a retrospective effect. "(See Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970). As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a Section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (SeeReid v. Reid, (1886) 31 Ch D 402). In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union ofIndia v. Raghubir Singh (AIR 1989 SC 1933). The above position has been highlighted in "Principles of Statutory Interpretation" by Justice G.P. Singh. (Tenth Edition, 2006) at PP. 474 and 475)"
Now, if the protection order U/s 18, residence orders U/s 19, monetary reliefs U/s 20 (not applicable if pending case is under HMA or Hindu Maintenance & Adoptions Act or under other matrimonial laws), custody orders U/s 21 (again not applicable if the pending case is under HMA or order matrimonial laws), compensation orders U/s 22 are passed under any other case already pending before magistrate or a family judge, under the scope of S. 26 of DV Act, violation of any of the orders are chargeable under penal Section i.e. U/s 31. In this case question of retrospective operation of the Act does not arise at all as these orders under the scope of S. 26 would have got passed in already pending cases subsequent to commencement of the Act. If such orders under already pending cases are passed even before commencement of the Act, they are still rendered null & void. In the former case, the Article 20 (1) of constitution of India is not violated, where in the later case, it will any way be violated.
The doctrine of Casus Omissus does not apply to Bharat Ratna DV Act and retrospective effect to the DV Act cannot be taken as an obvious interpretation of the intent of the statute. There is a limited retrospective effect that is only to the extent and scope as defined inSection 26. Even if one argues that it is a case of omission, then the fundamental question that arises is, whether the fine print like "E&OE (Errors & Omissions are Expected") are allowed to be a part of a statute that is bound to govern the country and the society? If yes, what is legislature's proposal to handle the chaos & the disorder in the society that may the result of such omissions? Who proposes to compensate the adversary who may end up as the looser because of such omissions?
Even in case of casus omissus is assumed to apply to Bharat Ratna DV Act, the resulting situation is governed by the general law, in this case the retrospective effect cannot be taken beyond the scope defined in Section 26.
No law which impairs or takes away the fundamental rights of any citizen guaranteed by the Constitution of India or impairs or takes away the protection enjoyed till passing of such laws cannot be made to operate retrospectively and that is the governing law. If one attempts to employ casus omissus rule to Bharat Ratna DV Act.
Now, one can simply pose one question, what if a lady is found to be abusing the beneficial provisions of law? Does the statute provide any remedy? The simple answer is "No". Then, under casus omissus principle, the interpretation under general law applies and there is S. 340 of CrPC is my view.
Bharat Ratna DV Act has been specifically (in particular, the other references to Article 14 & Article 21 are just name sake) passed underArticle 15 (3) of Constitution of India – “Nothing in this article shall prevent the State from making any special provision for women and children” and this Act has only been made as a "welfare legislation" only to guarantee social justice and to provide more protection. The Bharat Ratna DV Act is touted as a "second chance" to erring husbands & male partners and to Act as a deterrent to the people who are indulged in treating their female partners with cruelty. In the advent of making a piece of legislation to give more protection to weaker sections of the society (read as weaker s*x) the legislation / statute / rules therein cannot take away the other citizens rights guaranteed by constitution of India and if they attempt to take away such rights, such legislation / statute / rules therein are deemed to be void to such an extent of derogation - Read Article 13 of Constitution of India. The law should have helped the weaker Section (read weaker s*x) to come into the main stream of the society, on the other hand, it is helping the mischievous & extra intelligent ladies to take revenge & to blackmail husband(s) and in laws (grabbing propertiers in the name of residence rights). That is to be construed as the failure of legislation.
Bharat Ratna DV Act is not class legislation and class legislation is barred under Article 14 of Constitution of India. When looked vis-a-vis with S. 125 of CrPC, which is classified as a piece of "social justice & a welfare legislation" and HMA & HAMA provide equal opportunities to get reliefs to both spouses and they do not come under either classification. The S. 125 CrPC, provides the opportunity not only to destitute wives but also to destitute parents & children to claim maintenance from the Husband, Father or the Son as it is accepted principle & practice of Indian society that male children have to take care of their parents, father is responsible for his children till the children attains majority and husband is expected to take care of a wife who is not capable of maintaining herself.
Appended hereto is an article about class legislation and the Hon’ble Supreme court's views about the same.
Also, for a Statute to be called as the one which is "reasonably classified", it has to adhere to Article 14 of constitution of India - "Equal Protection before Law" and should pass the tests as laid down by the Hon'ble Supreme Court.
Bharat Ratna DV Act is not a class legislation in any manner and to call it a "reasonably classified" statute, it fails the tests laid down as it attempts to take away the male partner's rights which are guaranteed by the classification. Hence, it's aim is only to bring in social parity and to help the deprived to come into the mainstream breaking the shackles. In other words, the Act is to perform as a deterrent to those erring male partners and hence have been causing the domestic violence. Even under this theory, the statute cannot be allowed to operate retrospectively.
Also, it is important to note that there can be no presumption that only male partners are causing the domestic violence and it can be opposite also. Hence, it is important for the Hon’ble Courts to be vigilant and analyse, which part of the section of the litigant(s) are subjected to domestic violence and to analyse the same, it is important that the Hon’ble Courts ensures that the parties lead their evidence and are subjected to cross-examination as laid down by Hon'ble High Court of Madhya Pradesh in opening re. citation herei
![Dr. Atul [9013898936]](/img/avatars/my_avatars/118016.jpg)
Looks like Helping Hand himself is in need of Help 
