Memorandum: Highlight The Effects Of Ill Conceived Legislation On Ordinary Citizens . Asking for discussions, review and changes .
To The Hon'ble Law Minister,
Law Ministry
Govt Of India
Sir,
We are a group of registered NGO's, working to alleviate the suffering inflicted on vulnerable sections of society, viz senior citizens and innocent families, and protecting basic human rights for men, by ill conceived and clumsily drafted legislations, promoted as a law to protect women.
The Protection of Women from Domestic Violence Act (DV Law), effective from Oct 2006, which the Supreme Court of India has termed as clumsily drafted, has several provisions that are wrong, goes against commonsense and tramples fundamental rights such as equal protection under the law, due process and the right to own property. This is to bring to your notice these wrongs, and we ask for a review for changes, or scraping of this Law to help society.
This memorandum is the result of the press conference held on the 19th of April at the Press Club Of India, attended by several NGOs working to protect vulnerable sections of society from the tyranny of such laws.
Under section 17 of the DV Law, a women can seek entry into any house she ever lived in the past 10 years, whether she has any claim or right to it or not. Under section 19 she can throw any man, who was in a domestic relationship with her, out of his own house. This law is worded in a fashion that the house could be of senior citizens or retirees, a mans friends or relatives, etc. Senior citizens work all their lives to save and live in a house of their own to live their golden years with dignity. This is an outright injustice to force to them to abandon their homes or force them to live with their daughters-in-law due to the provisions made under this clumsily drafted law.
This law offers unscrupulous women and their greedy relatives, the incentive to legally grab property and hold the owners to ransom or subject them to extortion.
A Delhi High Court Judge in his detailed article titled "DV Law a recipe for
disaster?" in practical Lawyer Journal, has said DV Law has no parallel in
legal history.
The Supreme Court, in Batra vs Batra, 15/12/06 said:
"the husband and wife may have lived together in dozens of places e.g. with
the husband's father, husband's paternal grand parents, his maternal
parents, uncles, aunts, brothers, sisters, nephews, nieces etc.... all these
houses will be shared households.... Such a view would lead to chaos and
would be absurd.
It is well settled that any interpretation, which leads to absurdity, should
not be accepted.
23. No doubt, the definition of 'shared household' in Section 2(s) of the
Act is not very happily worded, and appears to be the result of clumsy
drafting, but we have to give it an interpretation which is sensible and
which does not lead to chaos in society."
We have sent signature campaign letters to various departments, to protect the Batra Vs Batra Judgment of Supreme Court. We seek your support help our senior citizens by protecting this judgment.
While questioning the need for this law when other laws exist with sufficient provisions
in to protect women, we seek the following:
· WCD (Ministry of women and child development) review committees consist of all women committees with radical and extreme views. We seek that representatives of Regd. NGO's like MASI (Mothers and sisters Initiative) and Gender Human Rights Society be included on this committee. This is to ensure that there is balance and sanity in the review of this law.
· Removal of maintenance from the purview of the Domestic Violence law. Maintenance is covered under two different laws, viz HMA and 125Cr.PC.
· Service providers in DV (Domestic Violence) LAW should be neutral persons
and made accountable for their actions to ensure justice for the greater good of society. Restricting service providers to women's group's activists and organizations is like asking the wolf to guard the sheep. These groups are not above temptation to extortion, blackmail and corruption. Besides, who will monitor their actions and penalize them for abuses? Judges and officials should be neutral. They should be insulated from pressure and intimidation under the garb of gender sensitization.
· Complainant should replace the phrase, "aggrieved women" in this law, in order to make it gender neutral.
· MASI (Mothers and sisters Initiative) is a Regd. NGO consisting solely of women. MASI also provides free guidance and support especially to women
victims of dowry (498a) Law, protection of women from Domestic violence Law
2005 (effective from Oct 2006).
We look forward to working with you on creating a safer and just society. Please support us in this effort.
Thanking you,
Yours Sincerely,
Sandeep Bhartia (9971117829)
President
www.ghrs.in
Gender Human Rights Society (Regd. NGO)
*Some Supporting Organizations:
Indraprashta Senior citizens Society (Regd.) NGO
Mothers and Sisters Initiative (MASI) (Regd. NGO)
http://www.savefamily.org ( Delhi )
http://www.498a.org ( NRI )
http://www.saveindianfamily.org(Bangalore)
http://www.asha-kiran.org
http://mynation.net
http://www.protectindianfamily.org ( Bombay )
www.sahanaindia.org (Hyderabad )
www.forgottenwomen.org
http://www.siftimes.com
Copy To: Prime minister.
UPA Chair person.
Leader of Opposition.
Minister Women and Child development.
Law commission.
Some big problems with PWDVA (Protection of women from domestic violence act) called DV (domestic violence) LAW in short. Point 1: ************************************************ Service providers in DV (Domestic Violence) LAW should be neutral persons for correct justice and good for society. Restricting service providers to women rights activist's organizations is unfair. Judges and officials should be neutral. There should not be a force on them, to give one sided views, as part of the job requirement. To put a force by Law, that if you do not say one sided views, then after 3 years you will be removed from the list of service providers, and so will not get Govt. money, is wrong, this is to encourage, distorted picture and reports, by money. Rule 11 (1), of 2006 Rules of DV Law should be changed. Condition for service providers i.e., "With the objective of protecting the rights and interests of women "should be removed. Social service neutral organizations should be service providers, and protection officers.
50% of service providers and protection officers should be men, and 50% women, men are
equal part of family. Protection officers should not be appointed by WCD
(Ministry of women and child development) but appointed by judiciary, to encourage impartiality.
The DV Law is drafted such that in almost all matrimonial disputes women will file DV LAW.
So more then 10,000 posts of service providers and protection officers will be created,
which is a big number. Also service providers and protection officers will be under pressure to
say one sided things to the press, the more one sided and biased or false things a protection
officer or service provider says the better chances of more Govt. money. For example a vocal
service provider person saying wrong one sided, biased things to press, will have more
chances of becoming a protection officer. This give untrue picture to society, and so service
providers condition to be an organization (Rule 11 (1), of 2006 Rules of DV Law)
"With the objective of protecting the rights and interests of women "should be removed.
In form VI of rules 2006 of DV LAW, point 4, "number of persons employed for providing such
service "should be changed to "number of persons with details of how they are involved " .
Social service organizations usually do not get high Govt. funding to employ person, persons
work without money for social service. So the word "employed "should be removed. Usually
only WCD (Ministry of women and child development) funded feminists organizations have
the money to "employ" persons of sufficient expertise. By this clause to focus on number of
employed person, feminists want that only WCD (Ministry of women and child development)
funded organizations should qualify as service providers. This is to increase posts for getting
which you have to say one sided things only, hence distorted and false things.
Also very Important, press has to now come to these posts practically reserved for persons
who are willing to say one sided things (should we call this lies ) for getting jobs, to get news.
As Law ensures that they only get paid to get complaints by women in gender difference of
opinion cases, in which DV will almost always be filed. This is a common trick being used by
radical feminists to control press world over. Point 2: ******************************* A 3 member committee is made by WCD (Ministry of women and child development) to look into the domestic violence LAW and other things; committee may consider Supreme Court judgment (15/12/2006 S.R Batra V Tarun Batra.) about Domestic Violence LAW. This is all women committee consisting or radical feminists. Please put a few representatives of family saving organizations also part of the committee, or few neutral men. Family Laws affect men and normal women also. Present maintenance Laws give extra amount for renting a house to wife, this is correct Law. To through people out of their own legally earned houses by Law is wrong. Husbands do not get any share in wife's ancestral property; this point should also be noted.
Point 3: *********************************** Before there was 1 maintenance LAW, then in 2001 125CrPC was modified. So maintenance cases are being filed by wife at 2 places, and try to get the maintenance judgment that is higher. With DV LAW people are now fighting 3 maintenance cases; the wife can take the maintenance amount highest in these. This is as expected adding to the multiple proceedings in which parties may already be spending out their time, energy and resources. This is against basic common sense, just because feminists LAW makers at WCD want to give more options to the wife. This way she will get the highest maintenance from these 3 cases. This way, she has more options to lie in one court, and if that is caught, she can always correct the lie caught in other case, while keeping the lies not caught in 1st case. She now has 3 chances, apart from the chances to put pressure of arrest to see in advance the man's proofs at state commission for women, crime against women cells. Also this increases the probability to get a relative or friends contact by wife's family, in any of these places, this can harm the husband, due to barbaric, biased Laws against husbands. Also DV Law was made to enable the women to get maintenance from other males also like old father-in-law. We have come across case where a retired couple was asked to give maintenance to daughter in Law, just 3 days after they received the notice of complaint, 3 days requirement is as per the DV LAW. Sometimes it can be difficult to even get the copy of the tick mark complaint in 3 days for respondent. Section 20(3) should be removed; this says "The magistrate shall have the power to order an appropriate lump-sum payment or monthly payments of maintenance, as the nature and circumstances of the case may be ". Forcing a man to pay a lump sum maintenance is wrong, all maintenance Laws should clarify that lump-sum maintenance can be given only if the respondent asks for the same, and both parties agree for that.
************************************* Point 4: If a woman gives a complaint in writing telling about any instance in details, catching a lie in this is sometimes possible. Many husbands thus are able to save themselves in courts from false complaints, due to this. So feminists in DV Law have ensured that the women do not have to tell the incident details, just filling a tick mark type form is sufficient(Form 1, rule 2006) , form contains tick marks for whether emotional violence took happened, verbal violence happened etc. , to further safeguard women doing false complaints and to encourage false complaints, in the DV Law women do not have to sign on any complaint( even tick mark forms ! ) , this is done so that she can later refuse and say I did not sign these tick mark columns also, the person who signed misunderstood. DV Law then goes far to ensure that the person signing false can not be legally punished for signing false complaints under DV LAW (e.g. section 35). Protection officer or anyone else can sign, on her behalf. Also protection officer or someone else just have to tick mark the form, without giving actual incidence details. Without any sign by complainant women, all DV Law provisions can be invoked, e.g. it is sufficient to through every man out of the costliest house, a women ever lived in (section 19), get monetary compensation apart from maintenance for trouble faced mental, verbal, emotional etc. types (section 22), or get maintenance from any man, (judgments for maintenance e.g. from retired father-in-law, apart from husband or live in partners have already come), (section 20) etc.. This is done to encourage misuse and false complaints, so the women can later say I did not sign the tick mark form. Even for ex party orders she do not have to sign affidavit in tick mark form 3, her parents can sign saying as per there understanding the form filled is correct. This is done to ensure that after getting ex party orders in all barbaric DV Law provisions, the women can later still say, my father or mother misunderstood, and father or mother can say that this was based on his or her best understanding. In case this form3 affidavit is signed, the magistrate is asked by LAW to pass orders under all sections of DV Law, if the application prima facie discloses (i.e. says) that there is a chance of some verbal violence happening. So judge is kind of made helpless in DV Law, as per LAW, judge has to pass orders just on the basis of complaint. Just as dowry LAW (498a) made police helpless, they have to arrest whether the case is false or true without investigation, and non bailable, DV Law makes Judges helpless. I think to hide this fact from the parliament members that the women or any of her relatives do not have to sign at any place, elaborate arrangements have been made in the DV Law, e.g. Rule 6(4) is deliberately added out of place to confuse the person reading the Law, to give an impression that affidavit is required. This full rule 6 about the application to the magistrate is deliberately silent about any sign on the application, and then to avoid the possibility of anyone getting curious, if any sign by women is required, the Rule 6(4) suddenly mentions an affidavit. Then very next Rule 7 again repeats this sentence. By this repetition a successful attempt was deliberately made to hide the facts of LAW of no requirement of sign, and no specific details required as forms are of tick marks type, from anyone reading the LAW a few times only , like press or parliament members. ******************** Point 5 : Section 23 example: Asking Magistrate to pass ex party orders, if "an application prima facie discloses … that there is likelihood that the respondent may commit an act of domestic violence, he may grant an ex prate order on the basis of the affidavit "can be heavily misused. For example, back from office, men of the joint house can find an order, under section19, that they are not allowed to enter the house. As some lady in house have complained, that there is a chance that verbal violence can take place by them towards her. Even if the order is not ex parte, men can not do anything, to avoid being thrown out of house. Or under section 17 , ( which can be followed by section 19 ) , a friend of husband can find a order for allowing the wife of his friend, along with any of her friends or relatives, to enter his house, just because 10 years back he allowed them to live in his house, for some days. The number of days required to invoke DV Law is not clarified in Law. Next the friend can get an order section 19, not allowing him to enter his own house. Clearly these 2 provisions were made to entice women, by saying you can live in the costliest house of husband's friend or relative, provided you break your marriage. I think, to confuse the reader of LAW, related section 17 and 19 were kept separate and section 18 was inserted between these sections. ******************************************************* Point 6: When one reads the rule 14 i.e. , "procedure to be followed by Counselors ", a person with commonsense will not call this a counseling procedure , it appears that this is deliberately wrongly called as counseling to confuse people reading the LAW, this is done to get another report in women favor, and to threaten the man to agree to whatever the women wishes, and to force the man to give in writing by Law, that the allegation said by the women whether true or false , were done by him and he will not do such things in future . Rule 14(4): "The counselor shall conduct the counseling proceedings bearing in mind that the counseling shall be in the nature of getting an assurance, that the incidence of domestic violence shall not get repeated. " 14(5) " The respondent shall not be allowed to plead any counter justification for the alleged act of domestic violence in counseling the fact that and any justification for the act of domestic violence by the respondent is not allowed to be a part of the counseling proceeding should be made known to the respondent, before the proceedings begin ". If one person is barred by LAW procedure rule 14(5) to even say his side of story, against basic human rights, how we call this counseling can be understood probably by WCD Law makers only. Rule 14(6): Asking respondent by LAW to give undertaking that he would refrain from causing such domestic violence as complained by the aggrieved person. This can be done before any so called counseling begins. This puts the cart before the horse. It proceeds on the assumption that there is no reason to doubt that the respondent has committed or is likely to commit domestic violence. Repeating the same stuff in Rule 14(6) in Rule14 (3) within a few lines is not required, why this was done deliberately, I think is to hide (from parliament, press etc.,) the important points sandwiched between these two points etc., why this repetition is done is for WCD to say. Rule 14(10) is made to make wishes or views of the women like a word of God for the counselor, and satisfying them is the only aim of counselor without giving any chance for the man to say his views, and for this all existing human rights or Laws should not be considered, Indian evidence act, or civil or criminal Laws not relevant, as per DV LAW. The Idea is to threaten the man through counselor, that sign whatever the women wishes or I will submit a negative report by rule 14(11). Once he signs compromise under this pressure of counselor, then rule14 (14) a women can very easily go back on the signed agreement, whereas LAW do not allow a man to go back. In such kind of biased setting against man, giving women to go back on agreement is not correct, or else man should also be given option to go back like women on signed compromise. ******************************* Point 7 : 3 days after receiving notice is too short a period. It is difficult even to find out what is the wish of the women that the man has to grant, as per the form parts ticked under DV LAW. So a copy of the complaint should compulsory be sent with the notice to respondent .( In DV Law case the complaints copy can be tick mark form of the wishes of women and some ticked allegations for cosmetic treatment of form) . ***************************************** Point 8 : Word aggrieved person in LAW should be replaced by Complainant as in other Laws. Who know the women is doing this to get the costliest house or to get money extra then maintenance etc, so let's not give a false impression in LAW by saying aggrieved women. ***************************************** Point 9 : Laws should be Gender neutral. Domestic violence Law in other countries is also gender neutral. ******************************************** Point 10 : This LAW is totally not required; there are already sufficient provisions in existing Laws. Already extra amount for renting a house equal to a house the husband is living is granted by Courts, so to through people including husband from his own house is wrong. Also maintenance Law of 2001 i.e. 125 CrPC. was made for destitutes (changed in 2001), so is very fast even at the cost of misuse. Within 6 months or 1 year interim maintenance is fixed in majority of cases. Extra amount for renting a house is also given under this 125CrPC Law. ************************************************* Point 11 : Section 20: If case of crime appropriate punishment can be there, but to encourage complaints by saying you will get money and compensation for alleged mental or emotional trouble is wrong. This only leads to false cases of entrapments. People are also responsible to keep themselves reasonably safe, enticement that you mix with me first, and then I will ask money for alleged mental trouble is wrong. Further as per rule 2006 14(10) later, "due regard has to be given to the wishes and sensibilities of the aggrieved person "and prohibits man from saying his side of story by Law even verbally, only wishes and sensibilities of women should not be considered, what is excepted practice in society, whether she entrapped the man to get monitory gains, revenge etc. is to be seen. Also the biased service providers and protection officers as per Law and other tick mark forms etc. in rules 2006, makes money extraction by section 20 a very tempting business. Virtually every DV complaint will ask for money for mental cruelty and money amount will go higher based on the income of the relative of husband. ************************************************* Point 12 : Rule 2006, Section 13: To earn money for their agents WCD has looked like, allowed that any legal practitioner who has appeared for the complainant in the case or any other suit or proceedings connected can become the counselor under DV Law for the complaint, of course the Lawyer of respondent can not become the DV Law counselor. Lawyer of the complainant should also be not given powers of DV Law counselor of submitting report to the judge etc. Rule 13(2) (ii): "Any legal practitioner who has appeared for the respondent (or complainant should be added) in the case or any other suit or proceedings connected therewith. " Rule 13 (3): should be changed to 50% counselors should be man and 50% women. Men are also a part of family.
**************************************************************
Point 13 :
Section 27: The trick of radical feminists is to club all types of wishes of a woman, all types of
allegations under single Law procedure. This prevents different procedures as would be
appropriate for different types of allegations. So they can use worst case procedures, to
encourage misuse and false cases and entrapments. Small example E.g. in this jurisdiction,
jurisdiction should normally be the place where the incident happened (for which extra money
is being asked), but to trouble witnesses, women can go and temporarily reside at a distant
place (Say her parents place), come back. This wrong is being encouraged by this Law.
******************************************************
Point 14 :
DIR( Domestic Incident report ) is important in DV Law, as it is the first Incidence report like
FIR . The cases of ante-dating and ant-timing of DIR are quite possible . This gives easy ways
to feminists protection officers and servise providers to change the DIR, for lets say small
money . Even if one argues that this possibility of changing the complaint was not a delibrate
loophole left by the drafters of the Law. The potential of misuse of this is great . At least in
FIR the procedure of page numbered register is present, also FIR copy is to be sent to
magistrate, this reduces the chances of changing the FIR later.
******************************************************
Point 15 :
The Law , specially rules 2006, virtually makes it impossible for any interaction between
2 persons , to not to be a domestic violence, at least between family members, whether
male or female. Present culture etc. should also be seen, before making such rules.
Some points as told by Supreme Court Lawyer Mr. Tiwari and others: This law is encouraging
mushrooming tendency of allegation without any proofs. Separate section for penalty should
be added in case of complaint found false. Minimum 2 years punishment and 10,000 fines
should be there.
The Law should be implemented from the date of notification and on fresh cause of action,
not previous actions. For example previously it was OK for a husband to ask wife, if she is
interested in taking a break from her job for small kids and that in his opinion it is the better
thing to do, but such a statement can be made a crime as per the DV Law. So asking
husband to pay extra apart from maintenance for this statement of the past due to the
potential mental trouble due to the past statement is wrong. At the time the statement
was made it was not usually considered a crime as per Law.
Point 16 :
Presently what is happening is that women staying abroad are filing DV, and then they
never come to court. To prevent these types of cases, women should be present in court
on every date, to prove allegations.
Without clinching evidence or evidence cross-examinations, relief should not be granted.
Status of the respondent at the date of filing and judgment, should be considered,
sometimes due to litigations husbands have already lost jobs etc. , sending them to jail in
DV as they can not pay amounts as per past status is wrong .
Point 17 :
Domestic Violence LAW or House occupation LAW?
By Sandeep Bhartia 9899329991
Can Supreme Court save Lakhs of homes of old persons from radical feminists LAW maker of MINISTRY OF WOMEN AND CHILD DEVELOPMENT? Domestic Violence LAW or House occupation LAW?
The domestic Violence Act is designed to allow the occupation of a house by an estranged woman.
It has nothing to do with domestic violence or for providing shelter to any victim of domestic violence.
Sections 17 and 19, allow an estranged wife to occupy any of the houses she had ever stayed in.
This law says the house can be of a friend or relative or rented. It do not matter how much time back
the wife stayed in the house.
Senior citizens save a lifetime to build their homes. Under this law, they can lose it to the daughter-in-law.
What is the effect of this law on ordinary citizens and senior citizens?
With more then 10,000 (Ten thousand) complaints of matrimonial discord in Delhi alone last year,
almost all of these complainants will now resort to this DOMESTIC VIOLENCE LAW as a wedge to
extort concession in their matrimonial cases.
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