PWDVA LAW (COMMENTS / VIEWS ON RULES OF THE ACT) AS INTERPRETED BY A COMMON MAN - PART - II:-
The Domestic Violence Rules of 2006 are imbalanced, harsh and one-sided and there is every chance of misuse of the Act by unscrupulous women who could easily trap many innocent men for any petty things that dissatisfied her. Women should be given protection, but not by forfeiting the rights of men. It is a deprivation of their `liberty' as per Article 21 of the Constitution of India which reads "No person shall be deprived of his life and liberty except according to procedure established by law". I demand the INSERTION of a MISUSE Clause inherent in the Domestic Violence Act. I also demand it to be made gender neutral, with the replacement of the word husband and wife with spouse, and man and women with person
Immediately Amend Unconstitutional and Biased Rules
Rule 6 [5], 12(4) and 14 of the Protection of Women from Domestic Violence Rules, 2006 are downright unconstitutional, volatile of Articles 14, 15, 19 and 21 of the constitution of India, gender biased, not in consonance with the International covenants such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, as are necessary in the present circumstances of the case, award costs and render justice. Rules 5 and 8 are heavily biased against men. All rules mentioned here need to be either struck down or amended.
Comments on Unconstitutional Rules
Rule 6 (5) under the D.V. Act states that the applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Criminal Procedure Code, 1973. The jurisdiction of the Magistrate to grant maintenance allowance is governed by Section 125 of Cr. P.C. Consequent to the alleging of domestic violence, there is no reason as to why this should be mentioned against the monetary relief meant to help the women in view of the expenses meted out by her. This creates an utter confusion and also multiplicity of proceedings and consequences which would be grossly unfair to both parties.
Rule 12(4) r/w section 32 :- This section lays down that the offence of breach of protection order by the respondent shall be a cognizable and a non-bailable offence and the court may conclude on the sole testimony of the aggrieved person that the offence has been committed. If this has to be construed as a cognizable one, then it goes without saying that it is common to both man and woman. It has to be gender neutral one. There are women prisoners too, to ascertain the fact that women are also committing crimes. A woman can be an equal criminal as a man if not more. It is highly dangerous in the present scenario to get married. No man would like to marry, if he reads the Act as a whole. Instead of protecting a family which is a basic block of the society, the Government interferes and teaches how to doubt a person and the ways to trap a person to bring him under the purview of the Act. After the protection order is passed, even if the aggrieved person invites him to meet her, he should restrain himself from doing so. If he obliges to her request, he will be framed/charged under Sec. 32. The Act just says women will be protected at any cost and advices man not to believe his wife. Sec 32(2) states that based on the sole testimony of the aggrieved person, the court may conclude that an offence under sub section (1) of section 31 has been committed by the accused. The court jumps to conclusions without hearing the so-called accused, which is unconstitutional and against the principles of natural justice. Even in a murder case the accused will be heard first and then only sent to imprisonment. But here this is contrary to the general law and rules of justice. An allegation suffices for proof of evidence. Hearsay is taken for gospel. There is every possibility and likelihood that a woman lodge false allegations and complaints to the police and thereby forcing the courts to pass an exparte order by invoking the provisions of sections 31 and 32. This means on the sole testimony of my wife, the court may come to the wrong conclusion that an offence under sub section (1) of section 31 has been committed by me and could pass orders detrimental to my interest. Any penalty or penal provision in any Act should have a fixed period. The maintenance has to be paid for how long? Even life sentence is for a fixed time. But a married man suffers while living with his wife, while she leaves him and also after she left him. It has become possible now, for a perfectly innocent man, who has done nothing outside the law, to be sent to prison on one person's unsubstantiated word. In the light of the above submissions, the provision of the section has got to be struck down, if not properly amended.
Rule 14(3): The said provision proceeds on the assumption that the respondent has already committed the offence and it is not necessary to prove the veracity of the allegation and in the undertaking, admission of guilt is implicit. Rule 14(5) makes it clear that the respondent shall have no occasion to plead the
defense for justification. This is nothing but guiding the goat to the butchery.
In the real interest of many innocent victims, I submit therefore while looking in to the physical, verbal, emotional, psychological, economic abuse, the law should provide for the getting assistance of a recognized expert medical practitioner as to whether physical abuse of any kind has occurred as well as a recognized expert psychiatrist report and opinion as to whether any non-physical abuse like emotional, mental, psychological abuse has taken place.
Rule 5 :- Domestic Incidence Reports
This Rule permits lodging of D.I.R. either with the protection officer or with the service provider. This strictly speaking may not be a desirable state of affairs, inasmuch as lodging of D.I.R. with the protection officer would render the service provider purposeless. Whereas F.I.Rs. are entered in a pre-printed consecutively numbered paged in a bound book and the copy of F.I.R. will be transmitted to the magistrate to avoid manipulations, whereas D.I.Rs. does not contain any such safeguards which promotes ante-dating or ante-timing as well as other manipulations. This kind of senseless formats could very well be used to blackmail both the parties by corrupt persons etc. to extract/extort money or for personal gains.
Rule 8:- Duties and Functions of the Protection Officer
When all are equal in the eyes of law, it is impossible to accept this provision as constitutional because of the bias. At one end the Constitution strives at attaining equality, at the other end, the Parliament promotes the statute which discriminates men , thereby resulting in discrimination of women also, which ultimately fools the common man by providing the title of the Act as "PREVENTION OF WOMEN FROM DOMESTIC VIOLENCE ACT " . Discrimination includes any type of distinction, exclusion or restriction of any person on the basis of s*x. The Constitution does not favour gender discrimination of any sort. Protection of women is a must and that is not challenged anywhere in the present letter but it is forfeiting of the rights of men and discrimination of men on the basis of s*x that is being challenged here. Hence, the application to a Magistrate can be made at the instance of the "aggrieved person" who is a woman alone is not tenable and unconstitutional.
This is a biased provision in favor of women alone. The DV Rules directs the Protection Officer to get the aggrieved person alone to get medically examined. Any Rule that discriminates men/women i.e., on the basis of s*x is unconstitutional. The Statute cannot assume that the aggrieved person can only be a women always and the assumption that women alone could have sustained bodily injuries is not correct. Many women do harass men by physical, verbal, mental and emotional abuse which does not come to the light in view to uphold the tradition, moral and ethical values of life. Even Laws do not protect them.
I submit therefore while looking in to the physical, verbal, emotional, psychological, economic abuse, the law should provide powers to the protection officer to get assistance of a recognized expert medical practitioner as to whether physical abuse of any kind has occurred as well as a recognized expert psychiatrist report and opinion as to whether any non-physical abuse like emotional, mental, psychological abuse has taken place. The duties and functions as prescribed under the Statute imply that the said Officer has to only protect the women and assist them in the procedure. A Statute cannot direct the concerned authority to protect and assist a particular gender, which is against the principle of legal balance. The Statute provides for a Domestic Incident Report (D.I.R.) to be prepared either by the Protection Officer under Section 9 (b) and forward it to the Magistrate and to the service providers and the police officer of the local limits; whereas under Section 10 (2) (a), a service provider has the power to record the D.I.R. if the aggrieved person so desires and forward a copy to the Magistrate and to the protection officer having jurisdiction. Making of a D.I.R to the Magistrate under Section 9(1)(b) is distinct from recording the D.I.R. under Section 10 (2) (a). Rule 5 permits lodging of D.I.R. either with the protection officer or with the service provider. This strictly speaking may not be a desirable state of affairs, in as much as lodging of D.I.R. with the protection officer would render the service provider purposeless.
The Protection Officer/Service Provider only remains as a person of authority to assist the aggrieved person without powers for investigation. Therefore any report of domestic violence is to be presumed to be true for consideration by the Magistrate and on the filing of the Domestic incident report by the Protection Officer under Rule 6 the Magistrate can pass orders under the Act and any disobedience of the order is made a non-bailable offence and this is against the principles of natural justice.
Mere accusation / allegation / information of the wife cannot be taken as gospel of truth as they may even be of false in nature and hence any receipt of information cannot be construed to be a cognizable offence.
While the Family Court Act attempts at reconciliation, the provisions of the Act attempts to bring discord in marital relationships by providing for the Protection Officer to advise the `aggrieved person' on what relief to claim and providing for the Magistrate to frame charges on the basis of prima facie satisfaction without going into the details of allegations of both parties and to pass a Protection Order and the non-compliance of this order would be an offence under Sec. 31 of the Act resulting in imprisonment. It is pertinent to note that an appeal against this order provided for under Sec. 29 of the Act does not provide for any order of stay. While a petitioner can seek a relief and court can grant or deny the relief claimed by the petitioner or suitably mould the relief depending on the facts of the case, by virtue of the Act, the Court could act as an adviser and direct the "aggrieved person" to seek certain relief even when it is not asked for by the "aggrieved person".
It is strange that the protection officer has to wait till a request has been made by the aggrieved person. The appropriate suggestions would be to incorporate a mandatory provision for an expert medical opinion/report for any physical, s*xual abuse from a recognized expert medical practitioner, as well as a psychiatric opinion/report for all other non-physical abuse including verbal,
mental, emotional, psychological abuses to assess the physical and mental condition of the aggrieved person as well as to report qualitatively and quantitatively the degree of harm and injury allegedly sustained. This will also ensure to some extent that unscrupulous woman do not resort to any false complaints.
The Part III is comments on "Retrospective" OR "Prospective" examination of PWDVA, 2005.
Ld. Members of LCI are encoraged to comment their views on Part I / II for common consumption.
Rgds,
D. Arun Kumar, New Delhi
