Petition praying for amendments to the PWDVA(Domestic Violence Act) in Rajya Sabha

Regarding Hundred and Fortieth Report on the Committee on Petitions of Rajya Sabha under the Chairmanship of Shri Bhagat Singh Koshyari, M.P.

8^th July 2010/Bangalore

To,

Honorable Chairman of the Rajya Sabha,

Office of Chairman, Rajya Sabha,  Parliament House,New Delhi-110001

Subject: Regarding Hundred and Fortieth Report on the Committee on Petitions of Rajya Sabha under the Chairmanship of Shri Bhagat Singh Koshyari, M.P.

About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 16500 members all over India. To know more about us please visit http://www.family-harmony.org / http://www.498a.org.in.

The Committee on Petitions of Rajya Sabha under the Chairmanship of Shri Bhagat Singh Koshyari, M.P. presented its Hundred and Fortieth Report to the Rajya Sabha on 7th September, 2011 on the petition praying for amendments in Section 498A of Indian Penal Code, 1860. The Petition was submitted by Dr. Anupama Singh, a resident of New Delhi.

 

The committee has given some recommendations to Rajya Sabha regarding 498A IPC. Before discussing merits or demerits or expressing our opinion on them, we would like to present different perspective of this issue because the committee has deliberated and recommended some ways and methods to “Stop the misuse of 498A IPC”.

 

There may not be difference of opinion in this country if the subject matter to be discussed is “protection of women”. No doubt, 498A IPC was framed to prevent cruelty on women and act as a deterrent against cruelty on women. If that is the case then the petition is submitted by Dr Anupama Singh who herself is women. The fact that the law has failed and has not solved its purpose and has been seriously misused and abused by greedy women to settle score with husband and his family members is not in dispute.

 

The problem is the committee has given a very technical and legal opinion to an issue which is entirely social and matrimonial in nature and has limited its scope of discussion. E.g.

In the para 13.8 of the report the committee acknowledges that measures are required to “check on false complaints”. The committee recommends that “The Committee feels that the Government should consider providing legal remedies for preventing filing of false complaints or complaints with ulterior motive to harass the husband and his relatives under Section 498A. The Committee recommends that Section 498A be amended so as to provide for specific penalty in case the complaint is found to be false or with some other ulterior motive.”

 

So when the misuse and abuse of the law is very clear and it is acknowledged that husbands and their family members are also victims of violence, cruelty and false cases then the scope of the discussion should not be limited to “Stop the abuse the 498A IPC”. The larger issue is “Abuse and misuse of Gender biased laws” and “Protection to husband and his family members”.

 

There are many laws and Acts to deal with matrimonial disputes and most of them are NOT “Gender Neutral”. Some of them are 498A IPC, Protection of women from domestic violence Act, 125 of CrPC, Hindu marriage Act, Hindu adoption and succession Act, Guardian and wards Act etc. All these Acts and IPC/CrPC section deals with “Protection to women”, “Alimony and maintenance to women”, “Divorce and child custody” etc. It is well known that all these laws are being heavily misused by greedy women to settle score and to harass the husbands and his family members.

 

The argument of women faces e.g. that of Ex-WCD minister Smt Renuka Chowdry that “women has been suffering from ages and now it is the turn of MEN to suffer” (In one of her TV interviews) OR that “Abuse and misuse is in small number so it is ok” OR to say that “Any law for that matter is being misused” has only aggravated the issue.

 

Unless the government looks at the this grave issue in its entirety and makes serious attempt to solve it by simplifying the laws rather than duplicating the laws this issue will never be solved. We think now the time has come so that Government should look at the larger issue wrt the matrimonial disputes. In view of the above discussion we strongly oppose the report which is nothing but half hearted attempt by Government which is not going to solve the issue. Hence we demand following.

 

• Misuse and abuse of Laws: Heavy punishment by the way of imprisonment should be introduced in case of misuse of any matrimonial laws.
• Make matrimonial disputes “Gender biased”. Government is completely ignoring the pain, harassment and torture of husband and his family’s members which they suffer at the hands of greedy women. Thousands of husbands have got divorce from wife on the ground of cruelty. This proves that women also can be cruel. Hence matrimonial laws should be made “Gender neutral” to provide protection to husbands and his family members.
• Duplication of Laws: Just to deal with the maintenance for wife there are 6 different laws. This is due to the mindset of our law makers to make a new law if there is complaint regarding old law. When Hindu marriage act was already there to deal with the maintenance of the wife then there was no need to bring CrPC 125, or Domestic violence act or HAMA.
• The definition of women is “Newly married young women”: Even though it is matter of common knowledge that daughter-in-law’s treat their mother-in-law with cruelty even then “Matrimonial laws” are only meant for “Newly married young women”. This must be amended to given protection to all without any consideration of gender or age.
• Protection to Husband and his families: Currently Husband and his family members do not have any protection from the cruelty of daughter-in-law. Laws should be made gender-neutral for their protection.
• Child custody issues: Government should bring in amendment for “Shared Parenting”.
• Never ending litigations: The litigations are so lengthy that by the time a father files for child custody and by the time matter is decided by Supreme Court, the child is ready to have his own child. And similarly once a divorce is filed by spouse, and by the time Supreme Court decides it couple are at the verge of retirement. The litigation in case of matrimonial disputes should be finished in a time bound manner of 1 year.
• Simplification of Divorce laws: What the relatives and the social circle cannot achieve is sought to be achieved that too by an over burdened presiding officer. Divorces are denied in a routine manner even when criminal cases are pending. Law should be modified keeping in mind the changed social structure.
• Try all matrimonial disputes under civil law: Involvement of police breaks any possibility of re-union between the couple.

 

Attempt by Government to do some temporary, ad-hoc and stop-gap arrangement by fixing some loop holes in the 498A IPC is neither going to stop the misuse of “Gender biased” laws nor it is going to provide any “protection to husband and his family members” from potential misuse and abuse of law. Government instead of taking ad-hoc and temporary steps should constitute a committee for overhaul of overall matrimonial laws rather than approaching the issue piecemeal basis which will aggravate the issue rather than solving it.  

 

 

 

 

P Suresh, President

9880141531

 

NFHS and other NGO members who deposed before Rajya Sabha commitee of petions to suggest ammendments in 498A IPC

NFHS and other NGO members who deposed before

Rajya Sabha commitee of petions to suggest

ammendments in 498A IPC

The WALL of 498A will crumble soon!!!

NFHS has been invited for oral deposition to the commitee for 498A amendment

No. RS. 6(69)/2008 – Com.II 22^nd June, 2011

Shri P. Suresh,

President, National Family Harmony Society,

H-102, Raj Nagar-II,

Palam Colony,

New Delhi-77

Sub: Petition praying for amendments in Section 498A of the Indian Penal Code, 1860.

Sir,

I am directed to state that the Committee on Petitions of Rajya Sabha which is examining the captioned petition, has decided to have the benefit of your views in response to your Memorandum on the petition in its meeting to be held on Wednesday, the 29^th June, 2011 in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi. I am, therefore, to request you kindly to make it convenient to appear before the Committee at 11.00 a.m. on the above noted date and venue for the purpose. You may bring with you one person for assistance during the presentation. Subject to other individuals/organizations (who have also been invited) actually appearing before the Committee, one organization/individual may get around 10 minutes for making the presentation.

2. A line in confirmation of your appearance before the Committee may be sent to the undersigned at the earliest.

3. A copy each of the petition and the list of Members of the Committee on Petitions is enclosed.

Yours faithfully,

(GOUTAM KUMAR)

COMMITTEE OFFICER

Tel: 23034537

Telefax: 23794328

E-mail: rsc2pet@sansad.nic.in

A petition under Rule 137 on DV Act misuse to Rajya Sabha

PDF Version ——–> Rajya_Sabha_Petition_DV

Bangalore / 09-May-2011

To:

The Council of States (Rajya Sabha)

The petition of Shri P Suresh an Engineer and a resident of Bangalore, Karnataka

Sheweth,

1. That “The Protection of Women from Domestic Violence Act, 2005” [hereafter referred to as the “Act” for the sake of brevity] was passed by parliament as Act No. 43 OF 2005 on 13th September, 2005 to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.

2. That subsequent to passing of the above said “Act” there is seemingly increasingly heavy misuse of the “Act” similar to the heavy misuse of 498A IPC.

3. That the parliament has passed this “Act” with good intention to provide speedy relief to the women who are victims of “Domestic violence” but as has been seen in the recent past that this “Act” has become a tool at the hands of greedy women to use it to harass their husbands and his family members in case of matrimonial disputes.

4. That there is an urgent and immediate need to address the issues related to the abuse and heavy misuse of the said “Act” which is breaking the families and since the family is the basic unit of the society and hence there are tremors and crack already appearing on the society.

a. The “Act” is providing relief only to the “young married women” contrary to the intention of the parliament. The result is “young married women” at the drop the hat are rushing to the courts with petitions and implicating the entire family members of husband by misusing the said “Act”.

b. The “Act” is being misused by many of the young, educated & intelligent women with corrupt intentions to satisfy their greed, grudge & fantasies. This law becomes more lethal when misused along with the Dowry Law or IPC 498A. The case under “Act” is usually filed just after an FIR U/S 498A of IPC is registered for the same cause of action.

c. When there is a dispute between the spouses and when the wife files a criminal cases like Dowry Harassment (IPC 498A) against the husband, it becomes impossible for him to continue to live with the wife. And if the wife claims for Right to residence in his house under this “Act”, then husband has to vacate the house along with his aged parent, as it is impractical to even think that husband and his wife can stay under the same roof that too when the criminal cases are pending. This leads to an unbearable harassment to the husband and his age old parent. Punishing him before beginning the trail is violation of his constitutional rights. In some cases the husbands will be re-paying their house loans, but because of the residence orders husband and his parent will be staying outside their houses in spite of paying for house loans, causing a great burden and hardship to them.

d. If the husband / his parents live in the shared house they have to face harassment of police / face multiple other criminal cases as per the wish of wife’s lawyer. So invariably husband and his old parents have to run away, sometimes without belongings and stay in a rented accommodation.

e. The wife can get an order prohibiting the husband from operating his own bank accounts including his salary accounts, making it impossible for him to live. In one case, wife first used 498A to send the husband & her mother-in-law to jail. As soon as they were released on bail, wife used “Act” to lock all their bank accounts & properties including the husband’s salary account. When they went home, they were beaten up by the wife & her kin and the husband & the mother-in-law were thrown out of their own house, thus making them penniless and homeless. This is how women are misusing this “Act” resulting in violation of basic rights of the innocent husbands & aged in-laws. Even in the cases of Dowry death the husband will get a chance to prove not guilty, but this “Act” first punishes the husband and then gives the husband the chance to prove not guilty.

f. The wife can get an order prohibiting the husband from entering the shared household. This resulting in, he being thrown out of his own house without any cause. This “Act” enables the wife to capture the house of the husband and in-laws and throw them out. In many of the cases it has been observed that some women acting like goons misuse this “Act” to capture the hard-earned properties of the husband and in-laws, denying their basic rights. Once the wife gets the control over the property she can use that to accommodate her kin or bring-in her boy-friends.

g. Wife can file multiple maintenance suits for the same relief, one under this “Act” and another under Cr.P.C 125 or any other provision available just to harass the husband by making him run around different courts. This concept of misusing multiple maintenance provisions has gone beyond bearable limits. There are numerous complaints from victims and this has prompted us file a Public Interest Litigation, in Hon’ble High Court of Karnataka with Writ Pet. No. 9168/10.

h. Though this “Act” restricts the maintenance amount to be fair & reasonable, the Hon’ble magistrates in various courts are hardly giving attention to this clause. In a hurry to provide justice to the women they are passing meaningless orders with exorbitant amounts as maintenance without any justification. The high amounts of maintenance passed by the magistrates are being misused by the estranged wives for enrichment and luxury.

i. Some wives gets ex-party orders to get her belongings and come with police protection and take away all the evidences, photos, bank accounts, property documents, gold, cash, credit cards, everything what she knows and what her lawyer suggests along with important house hold items.

j. Since this “Act” assumes that whatever the women says as true, is highly vulnerable to misuse.

k. The misuse of the “Act” is so rampant that many of the parliamentarians, courts, Chief justices of various High courts have expressed their concerns over the misuse.

l. Many women are using the “Act” to settle score with husbands and to capture his properties.

m. There are instances of misuse where women had invoked the “Act” just after few days after the marriage as it was pre planed to misuse.

n. There are instances where the petitioner is well educated and capable of working and earning and in many cases working but in order to harass the husbands they resign from their jobs and invoke this “Act”.

o. The misuse is so wide and rampant that even though any order under the said “Act” is enforceable only against husband but in order to harass petitioner adds all the family members of the husband as respondent.

5. Delhi High Court in a case related to the “Act” on 13-08-2010 observed that “I therefore consider that the application filed by the petitioner under Section 12 of Domestic Violence Act was not at all maintainable. The petitioner had settled her separate house in America, her Passport was issued in America, she is doing job in America, she was adult and able to take care of herself, take her own decisions. She decided to live in America after leaving her parents here. If she has any right in her father’s property, she has already filed a suit for partition. An application under Section 12 of Domestic Violence Act was nothing but a gross misuse of the Act and I consider that she was rightly denied the interim relief of residence in the property left by her father. The petition is hereby dismissed.”

6. Even the Hon’ble Supreme court in Batra VS Batra observed that the “Act” has been drafted poorly. Terming the definition of ‘shared household’ in Section 2(s) of the Act as “not very happily worded”, the Bench said it “appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and does not lead to chaos in society,”

7. This “Act” does not provide any provision or mechanism of punishment to the petitioners who misuse the “Act” which causes to the respondents.

a. Severe damage in the society as they are branded as “wife beaters” and “dowry seekers”.

b. Loss of jobs due to filing of false case under the “Act”.

c. Bad and defamatory publication in media and loss of reputation.

d. Financial loss due to false cases.

e. Harassment to the old parent of respondents due to running around court due to false cases.

f. Prospectus of sisters of husbands not getting married due to false complaint.

8. That the petitioner prays to amend this “Act” which is being heavily misused by thousands of women across India to settle score with husbands and due to which thousands of families are breaking. It is therefore respectfully prayed to amend the “Act” to include below suggestions.

a. To make the said “Act” “gender-neutral” by providing protection to MEN as well.

b. To increase the scope of the said “Act” beyond “young married women” to a cover a much larger section of victims irrespective of their age & gender.

c. To introduce a punishment clause in the “Act” in-line with section 387 to 389 of Indian Penal Code. A new rule should be introduced to protect the rights of the accused by sufficiently compensating the accused.

d. To add a new clause for protecting the human rights of the respondent husband.

e. To remove the role of Protection officer.

f. To make the trial under this “Act” in compliance to Indian Evidence Act rather than in compliance to Criminal Procedure Code.

g. To empower magistrates to order Suo Moto perjury and contempt proceedings in respect of exaggerated or false allegation in respect of domestic violence, cruelty when such allegations are proved to be false.

h. To make time bound conclusion of trial in 60 days.

i. To do away the practice of passing high Ex-Parte/Interim maintenance under this “Act” even when there no prima facie evidence to prove Domestic Violence.

j. To not consider “sole testimony” of women as gospel truth.

Name of Petitioner Address Signature

P Suresh, Bangalore, Karnataka – 560048

Strong objection to “Protection of Women against Sexual Harassment at Workplace Bill 2010” – Fantastic Draft by Niladri

To,                                                                        20^th January 2011 / Bangalore

Shri N S Walia,

Director, Rajya Sabha Secretariat,

Room No 515, 5th Floor, Parliament House Annexe,

New Delhi – 110001, Ph – 011- 23034187

To The Honorable Members of Department Related Parliamentary Standing Committee, on Human Resources Development, headed by Shri Oscar Fernandes, M. P. Rajya Sabha

Sub: Strong objection to DUPLICATION of law & EXTORTION in the name of framing “Protection of Women against Sexual Harassment at Workplace Bill 2010”. A Bill being framed in VIOLATION of Constitution, Universal Declaration of Human Rights & Apex Court Order, just to promote business and income generation for some lawyers

 

This memorandum is in strong objection to the bill titled “Protection of Women against Sexual Harassment at Workplace Bill 2010”. 

 

Today India is more famous for its astronomical scams and rampant corruption. The outgoing chief of the Central Vigilance Commission openly stated that about 30% of Indians are utterly corrupt and about 50% are on the borderline corrupt and can be corrupted if presented with a situation. Hence given that over 80% of the country is corrupt, what is the justification behind creating laws which can be easily used as weapon for extortion. From the above data it can be concluded with reasonable accuracy that given that half the country is composed of women, over 40% of the Indian women are also corrupt. The media is awash on the rampant possibility of Misuse of the present bill. In this context we would like to bring to the notice of the Hon’ble Members, that our President, Her Excellency Mrs. Pratibha Patil, has repeatedly warned on the massive misuse of gender biased laws, and urged everyone to exercise extreme caution while drafting such bills. The present bill, if passed in the present format, containing numerous loopholes and open to rampant misuse, would be a serious vote bank issue in the coming elections.

Has this Bill been framed only to give employment to Women NGO members!!

 

Clause 19(h) states, that the Employer, shall “initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator after the conclusion of the inquiry, or without waiting for the inquiry, where the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place.

 

Or in other words, this Bill would be applicable only for Sexual Harassment cases, when the person is an employee. In such a case, no proof is required of the alleged Sexual Harassment. The person also need not undergo any punishment and only needs to pay money to the alleged victim, which would be again deducted from his salary. For all the other cases of sexual harassment (when he is not an employee), the existent IPC laws would be very much applicable and thus he would have to undergo punishment as per IPC laws, (for which proof is required), and he does not have to need to pay any money to the victim.

 

Thus it is amply clear that Laws for alleged Sexual harassment already exist in the IPC and this Bill is just a Duplication of Law

The existing Sections of 509 and Section 354 are more than capable to cover all instances of sexual harassment at workplace or at any other place for that matter. The brief description of the sections are given below

Section 509 :- Word, gesture or act intended to insult the modesty of a woman

Section 354 :- Assault or criminal force to woman with intent to outrage her modesty

The three shortcomings in the Present IPC Laws of Sexual Harassment and the real agenda of some Lawyers group, in framing this Bill.

 

Is this Bill framed only for extortion & employment for women Activists Lawyers!!

First of all under the present IPC laws, the women does not get any monetary compensation for sexual harassment and the perpetrator also gets punished, if found guilty. Moreover, no Women NGO member gets paid for being recruited as committee members under the present IPC laws. In the present bill however, there is no punishment for the perpetrator, whereas the victim gets monetary compensation, for alleged Sexual Harassment, with an elaborate, non required, recruitments of committee members from various women NGOs, whose qualification would be “committed to the cause of women”, and thus get paid by the Government, from Tax Payers hard earned money.

Secondly in the Present IPC laws, the woman needs evidence in the court, to prove her case. In the present bill, however, there is no such requirement as the process of enquiry of the complaint has not been defined. Very special measure like blanket ban of use of RTI on the enquiry proceeding have also been proposed in this bill, making it wide open for rampant misuse.

Thirdly, the present IPC laws are again criminal in nature with the government Public Prosecutors, fighting for the women, with no scope of income generation for the women activist lawyers. In the present bill, the alleged victim would however require lawyers including women activists’ lawyers to fight her case and get monetary compensation for alleged sexual harassments. Thus the present bill would generate huge business and income for lawyers including women activists and simultaneously clog the judicial dockets with non required, multiple cases, as per the very draft of the bill itself. Such a scope of business and income generation for women activist lawyers is unfortunately absent under the present IPC laws.

Suggestion 1

Avoid duplication of law as the very bill states that remedies under present IPC are very much available for the same offense of sexual harassment and can also be easily applied when the perpetrator is not an employee. There is also no bar in the present IPC laws where it apparently states that the very same IPC laws of Sexual Harassment cannot be applicable on persons when he is an employee in any organization, and is only applicable when he not an employee. As it is out clear that the only purpose of the bill is just to give employment to Women NGO members, the government can alternatively, employ such, women NGO members, qualified as “committed to the cause of women” in various other upcoming social schemes, or give them training to upgrade their skill sets or give them easy loans under self employment schemes.

Let us now go through the other various shortcomings of the present draft of the bill, and which requires the following amendments

A. Gender Neutrality

Comments

1) All employers are committed to maintaining a workplace where each employee’s privacy and personal dignity are respected and protected from offensive / threatening behavior, irrespective of gender.

2) The Sexual Harassment at workplace policies prevalent in most of the nations today are gender neutral. According to a report on Sexual harassment at workplace by United Nations Economic Commission of Europe – Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, The Slovak Republic, Slovenia, Spain, Sweden, United Kingdom have policies for Sexual Harassment, that are gender neutral. Even neighboring Pakistan has Gender Neutral Sexual Harassment policies.

3) Surveys recently conducted by the Economic times, and Synovate across 6 Indian cities exposed the fact that men face more sexual harassment than women and must also be given protection.

4) Eminent social workers like Madhu Kishwar supported the fact that the Sexual harassment at Workplace Bill in its present from needs immediate amendment.

As per the Census of India 2001 data, men constitute 68.37% of the total workforce whereas women were 31.63%. Therefore, any effort to prevent or eliminate sexual harassment at workplace should be applicable to employees, irrespective of gender, both in terms of responsibility and liability.

Sexual Harassment at Workplace Bill should thus be made gender neutral so that it does not violate Article 15 of the Constitution which prohibits discrimination on grounds of gender. Moreover, Article 15(3) does not allow women to be exempted for punishment for committing the same crime as men, such as sexual harassment

 

Suggestion # 2

The Act should be made applicable to all employees, irrespective of their gender. The word woman should be replaced by the word employee in all appropriate places in the draft bill so as to render the proposed draft gender neutral.

 

B. Committees

B-I Tenure of Committees

Comments

The committees should not be permanent entities. This would help avoid any possibility of malpractice. Committees should be formed only when a complaint is received and appropriate action is warranted on it. They should be disbanded after appropriate action has been taken.

Suggestion # 3

No committee be formed unless to hear a specific complaint.

B-II Remuneration for Committee members

Comments

Section 7(2) and Section 7(4) of the draft bill propose tenure and remuneration for the Committee members. It is strongly recommended that no remuneration or allowances should be made payable to any of the Committee members as it would encourage frivolous and malicious cases to justify such payments.

 

Suggestion # 4

No remuneration, monetary or otherwise, be provided to the committee members or chairperson.

 

B. 3 Constitution of committees

B.3-I Appointment of Committee Chairperson and Internal Committee members

Section 7(1)(a) of the draft bill states :- “a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women”

Comments

The above proposed section is based on an unjustified, untenable premise that only women are capable of arbitrating complaints of sexual harassment.

Both section 7(1)(a) and 7(1)(c) use the phrase ‘committed to the cause of women’. Even the Supreme Court, Vishakha Judgement does not use the phrase “committed to the cause of women”. This phrase in fact finds mention in several places in the draft bill and its connotation only suggests an inherent bias and prejudice against men. The committee members instead should be individuals with ‘high integrity and a judicious approach’.

 

Suggestion # 5

Instead of being gender biased and committed to the “cause of women”, the appointment of the Committee Chairperson and members should be on the basis of their integrity and their judicious approach. All appointments should be transparent.

B.3-II NGO Committee member

In section 7(1)(c), the bill states :- “at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women, which may be prescribed”

In section 7(1)(d), the bill states :- Provided that at least one-half of the total Members so nominated shall be women

Comments:

Members external to the organization should not be allowed to arbitrate on the issues that are internal to the organization. Members of women’s groups or non-governmental organizations dealing with issues of violence against women may harbour an inherent bias against men and a fair and equitable probe may not be made available to male victims of sexual harassment. They may also encourage women who are not necessarily harassed, but have other grievances with the organization, to file sexual harassment complaints.

Another stipulation in this section requires that at least fifty per cent of the members so nominated shall be women.

 

Suggestion # 6 & 7

 

• No members, external to the employer organization, be allowed in the committee.

• Any stipulation with respect to number of women in the Committee is unnecessary and makes a prejudiced assumption that only women are capable of arbitrating complaints..

Comments

In various sections the committee has been granted various powers to make appropriate recommendations to the employer or District Officer.

i. From the proposed draft bill it is not clear if the employer is bound by the recommendations of the committee.

ii. The process of appeals too is not clearly specified.

iii. Would the recommendation of the committee be open to challenge in a court of law?

iv. Does the respondent have a right to legal counsel during the proceedings on the enquiry?

v. The power of the committee and the process of the enquiry of the complaint should be well defined.

Again Clause 11(2) of the bill states that “the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents; and

(c) any other matter which may be prescribed.

We strongly object to the subclause (c) “any other matter which may be prescribed” as such an important bill can’t give huge powers to the committee and at the same time, make clauses ambiguous and open ended.

Suggestion # 8

The powers of the committee and the appeals process should be specified unambiguously. Inadequacies mentioned in (i) to (v) above need to be addressed explicitly. Clause 11(2)c, needs to be deleted, being not specific, ambiguous, and open to various interpretations.

C. Complaints

C-I Conciliation

In section 10 (1), the draft bill states – “The Internal Committee or, as the case may be, the Local Committee, may, before initiating inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation“.

Comments

A complaint of sexual harassment is a serious complaint, and under no circumstances should the conciliation include any monetary settlements. It is an outrage to the sensibilities of all self respecting men and women that money can be considered as adequate redressal for their loss of dignity. Moreover, monetary payments would only render the proposed statute open for abuse. Various media articles have specially pointed out these serious lacunae of this bill. In fact, this is in clear violation of the Supreme Court, Vishakha Judgement, which does not speak of awarding monetary compensation to a victim of Sexual Harassment, from the respondent, as Apex Court knew very well, that then, the bill, would be open to rampant misuse.

Suggestion # 9

Monetary compensation should not be a part of conciliation proceedings. This would to a large extent help avoid potential for misuse.

C-II Time limit on Filing Complaints

Comments

A time limit within which the complaint needs to be filed from the time of alleged incident is of crucial significance in settling sexual harassment disputes. Justice should be meted out before any evidence is damaged, destroyed, rendered useless or fades away from memory. In fact the complaint should be lodged by the complainant instantaneously and spontaneously without any loss of time. Any delay on this score must be explained to the satisfaction of the concerned authority. In addition, the filing of the complaint needs to be time bound. For example, it would be ridiculous to entertain a complaint of sexual harassment after years of the alleged incident. It is also important to remember that the guilty person should be visited with appropriate reformist action at the earliest, which can be made possible only when the complaint is filed instantaneously.

Suggestion # 10

The complaint should be filed immediately on the occurrence of the alleged incident. Any complaint not filed within a stipulated time period (4 weeks) should be closely scrutinized for veracity before admission and the delay should be explained in writing by the complainant, to the satisfaction of the committee.

C.3 Compensation

C.3-I Silence on action to be taken

The bill in clause 13(3)(i) states that “ to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

C.3-II Financial Responsibility

In section 13(3)(ii), the draft bill directs – “to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, as it may determine, in accordance with the provisions of section 15:”

Comments

First of all the bill is totally silent on what action is to be taken on the respondent, in absence of service rules and states “as may be prescribed”. Or in other words, the draft bill is unfortunately silent on the main issue.

Secondly, loss of salary or wages would be a huge encumbrance on the family of the respondent, potentially including children, who would face economic hardships and could even jeopardize their future. The respondent must not be individually responsible when he/she is in employment of the organization. Rather, it is the responsibility of the organization to police its own employees and ensure they follow the service rules. If they don’t, the employer is responsible to pay the compensation to the victim. The employer can deal with the service aspects of the perpetrator separately in the best interest of their organization. In the western nations, the financial burden of a sexual harassment suit lies with the employer as it is the responsibility of the employer to provide a safe working environment to the employees.

 

Suggestion # 11

As prevalent in the western world, the Employer should bear the financial burden of the compensation ordered to the aggrieved person. The bill should clearly specify the action to be taken on the respondent in absence of service rules, as that it supposed to be the main purpose of this bill.

C.3-III Determination of Compensation

Comments

All incentives for filing frivolous and malicious complaints should be eliminated. No committee should be empowered to issue any monetary compensation at any stage of the complaint. All avenues for extortion and blackmail should be shut down by divesting the committee of all power to order any monetary incentive to the complainant.

The committee should be given authority only to investigate and submit a report. The question of compensation must be decided by a legal authority whose decisions are available for review by higher judiciary.

 

Suggestion # 12

The committee should be divested of all powers to order any monetary compensation at any stage of the proceedings.

C.4 False and Malicious complaint

In section 14(1), the bill states – “

Provided further that the malicious intent or falsehood on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended”

Comments

When the allegations of sexual harassment cannot be proved against the respondent, then it should recommend action against the complainant immediately, within a maximum specified time limit of 30 days. The bill also states that “in accordance with the procedure prescribed”. We are all aware that most of the cases filed under this bill, would be false. And as no procedure is being spelt out, none would be punished for lodging false cases for ulterior motives. We strongly suggest the deletion of the above phrase to minimise its rampant misuse.

We would also like to humbly remind the Hon’ble Committee Members that on 7th August, 2009, some Women NGOs lobbied for deletion of the Misuse Clause from the draft bill. All the Women MPs, unanimously agreed that a Misuse Clause is very much needed to prevent misuse of this loosely worded bill. Unfortunately, after the above consensus was reached, with the Women MPs, the very misuse clause has been drastically changed to, make the bill, ironically, even more prone to misuse.

Section 14(1), of the bill states that if a complaint is found to be false, the committee “may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint”.

The phrase ‘may recommend’ should be changed to “shall recommend” to ensure justice for a respondent falsely accused of sexual harassment.

 

Suggestion # 13

Mandatory action must be taken against the complainant when the complaint is found to be frivolous or malicious, within a maximum of 30 days.

 

Suggestion #14

Falsely accused person should have the right to pursue justice in a court of law, and claim appropriate redressal as remedy for the mental trauma, pain, suffering, emotional distress and social censure caused to the falsely accused person.

D. Duties of Employer

Clause 19 (g) states that “provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;

Comments on Section 19 (g)

The bill is totally silent on quality of assistance to be provided by the Employer.

Suggestion # 15

The quality of assistance to be provided by the Employer must be spelt out clearly and unambiguously in the bill.

E. Right to the Enquiry Report

Section 16 prohibits the publication or making known, the contents of complaint and enquiry proceedings. Interestingly the bill suggests suppression of information only when the case is False. Information on true cases can however be retrieved through RTI Act. In a report published by the Transparency International, it was found that India’s corruption index showed a marked decline and the single-most reason for the drop in corruption in government was attributed to the Right to Information Act. The RTI Act which has been hailed as a beacon of democracy in India many a times by the Honourable Prime Minister and Leader of the UPA Mrs. Sonia Gandhi cannot be allowed to be trampled in such a manner by some people having vested interest. Even the DoPT has given serious objections in writing against this Clause 16, which brutally tramples the RTI Act.

 

The Sexual Harassment at Workplace is an outcome of the guidelines framed by Honb’le Supreme Court of India in Vishakha Vs State of Rajasthan (AIR 1997 SC 3011). The guidelines clearly say that “These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993”. The above clause is thus a clear contempt of the Apex Court guidelines and a blatant abuse of Human Rights.

Comments

When, either the complainant or the respondent wishes to approach any court of law for justice, they should have a right to the details and proceedings of the enquiry in the enquiry report to provide context to the judiciary.

 

Suggestion # 16

Section 16 should be deleted. In the event the complainant or the respondent wishes to pursue the matter in judiciary, the enquiry report should be provided to concerned party.

Summary of the above recommendations:

1. Avoid duplication of law as the very bill states that remedies under present IPC are very much available for the same offense of sexual harassment and can also be easily applied when the perpetrator is not an employee. There is also no bar in the present IPC laws where it apparently states that the very same IPC laws of Sexual Harassment cannot be applicable on persons when he is an employee in any organization, and is only applicable when he not an employee. As it is out clear that the only purpose of the bill is just to give employment to Women NGO members, the government can alternatively, employ such, women NGO members, qualified as “committed to the cause of women” in various other upcoming social schemes, or give them training to upgrade their skill sets or give them easy loans under self employment schemes.
2. The Act should be made applicable to all employees, irrespective of their gender. The word woman should be replaced by the word employee in all appropriate places in the draft bill so as to render the proposed draft gender neutral.
3. No committee be formed unless to hear a specific complaint.
4. No remuneration, monetary or otherwise, be provided to the committee members or chairperson.
5. Instead of being gender biased and committed to the “cause of women”, the appointment of the Committee Chairperson and members should be on the basis of their integrity and their judicious approach. All appointments should be transparent.
6. No members, external to the employer organization, be allowed in the committee.
7. Any stipulation with respect to number of women in the Committee is unnecessary and makes a prejudiced assumption that only women are capable of arbitrating complaints..
8. The powers of the committee and the appeals process should be specified unambiguously. Inadequacies mentioned in (i) to (v) above need to be addressed explicitly. Clause 11(2)c, needs to be deleted, being not specific, ambiguous, and open to various interpretations.
9. Monetary compensation should not be a part of conciliation proceedings. This would to a large extent help avoid potential for misuse.
10. The complaint should be filed immediately on the occurrence of the alleged incident. Any complaint not filed within a stipulated time period (4 weeks) should be closely scrutinized for veracity before admission and the delay should be explained in writing by the complainant, to the satisfaction of the committee.
11. As prevalent in the western world, the Employer should bear the financial burden of the compensation ordered to the aggrieved person. The bill should clearly specify the action to be taken on the respondent in absence of service rules, as that it supposed to be the main purpose of this bill.
12. The committee should be divested of all powers to order any monetary compensation at any stage of the proceedings.
13. Mandatory action must be taken against the complainant when the complaint is found to be frivolous or malicious, within a maximum of 30 days.
14. Falsely accused person should have the right to pursue justice in a court of law, and claim appropriate redressal as remedy for the mental trauma, pain, suffering, emotional distress and social censure caused to the falsely accused person.
15. The quality of assistance to be provided by the Employer must be spelt out clearly and unambiguously in the bill.
16. Section 16 should be deleted. In the event the complainant or the respondent wishes to pursue the matter in judiciary, the enquiry report should be provided to concerned party.

 

Thanking you

 

IPC 498A letter by Avani for Rajya Sabha by Avani

प्रेक्षक ,
;;;;;;;;
प्रति,
श्री राकेश नैथानी,
जोइंट डिरेक्टर, राज्य सभा सचिवालय,
पार्लियामेंट हाउस अन्नेक्से,
नयी दिल्ली – ११०००१

विषय : भारतीय दंड संहिता कलम ४९८ ए के संशोधन के लिए सुझाव
आदरणीय महोदय,

मैं अहमदाबाद में रहने वाली एक वरिष्ठ महिला नागरिक हूँ. मैं स्वयं भारतीय दंड संहिता की कलम ४९८ ए के दुरूपयोग से पीड़ित हूँ और यह इच्छा रखती हूँ की इस कलम का जल्दी से संशोधन किये जाना चाहिए नहीं तो इसके ज़रिये भारत के कई मासूम परिवारों का विनाश सुनिश्चित है.

इस विषय में मेरे सुझाव इस प्रकार हैं :

1.  इस कानून का दुरूपयोग करने वाली महिला को सख्त से सख्त सजा दी जानी चाहिए. ऐसी परिस्थिति में झूठे आरोप के भोगी परिवार को सरकार द्वारा मुआवज़ा एवं अभियोक्ता लड़की से भी मुआवज़ा दिलवाए जाना चाहिए.

2.  जिन मामलों में ये प्रथम दृष्टि पाया जाता है की अभिभोक्ता लड़की के साथ कोई अत्याचार नहीं हुआ, उनमे पति के परिवार के लोगों को आरोपियों की सूची में से हटाये जाना चाहिए और उनपर कोई केस न चलाया जाए.

3.  यदि पाया जाए की अभियोक्ता लड़की ने ससुराल पक्ष के सभी अथवा काफी सारे सदस्यों पर आरोप लगाये हैं तो उस लड़की के इरादे पर भी शक करना चाहिए. यदि उनमे से एक भी निर्दोष पुरुष या फिर महिला पर उसने झूठे आरोप लगाये हैं तो येही कारण पर्याप्त है अभियोक्ता को सजा देने के लिए. उसे कानून की किसी भी धारा में कोई  भी आर्थिक सहायता नहीं दी जानी चाहिए क्योंकि किसी भी तरह का आर्थिक फायेदा उसके बुरे आचरण को बढ़ावा देगा और कई लड़कियों को झूठे केस करके माननीय कोर्ट व मासूम लोगों का समय नष्ट करने की प्रेरणा देगा.

4.  एक ही तरह के आरोपों के बल पर विभिन्न केस करने क अनुमति नहीं दी जानी चाहिए. फिलहाल तो एक ही आरोप पर डोमेस्टिक वायोलेंस एक्ट व ४९८ ए किये जाना शक्य है जिसके कारण झूठे आरोपों में फसे मासूम परिवारों को काफी कष्ट का सामना करना पड़ता है. संक्षेप में कहा जाये तो यदि किसी लड़की ने एक ४९८ ए का केस किया हुआ है तो इस केस के पूरा होने तक उन्ही आरोपों पर डोमेस्टिक वायोलेंस का केस करना संभव नहीं होना चाहिए.

1. क़ानून की धारा ४९८ ए बनायी गयी थी “महिलाओं” को अत्याचार से बचाने के लिए परन्तु  इसके लाभ केवल बहुओं व पत्नियों को ही उपलब्ध हैं. ऐसी स्थिति में देखा जाए तो माँ एवं बहनों के लिए कोई भी कानून नहीं है जो उन्हें भाभी, बहु आदि के अत्याचार से संरक्षण दे. बल्कि देखा जाए तो ऐसे झूठे केसों में फसी महिलाओं के साथ तो पुलिस के अधिकारी भी दुर्व्यवहार करते हैं और सिफ आरोपियों की सूची में नाम होने के कारण उन्हें ये सब सहना भी पड़ता है. दुख की बात तो यह है की ऐसी स्थिति में फसी महिलाओं को तो National Commission for  Women से भी कोई सहायता उपलब्ध नहीं है. इन तकलीफों को दूर करने के लिए ४९८ ए में ऐसा एक अनुच्छेद डाले जाना चाहिए की :

• ऐसे केसों में फसी महिलाओं को मुकदमें के दौरान आर्थिक सहायता उपलभ करवाइ जाए
• ऐसे केसों में फसी महिलाएं यदि बहु अथवा भाभी के द्वारा अपने खिलाफ किये गए अत्याचार का प्रमाण ले आयें तो इसी धारा के प्रावधानों का लाभ उन्हें भी मिलना चाहिए.

आभारी,

Rajya-Sabha-Sub-Committee-498a-individual format 4

23^rd December 2010

Bangalore

To,

Shri Rakesh Naithani, Joint Director,

Rajya Sabha Secretariat,  Parliament House Annexe,

New Delhi – 110001 Tel: 011-23035433 (O), Fax: 011-23794328

Subject: Comments/Suggestions regarding amendment to section 498A of the IPC.

IPC section 498a was originally designed to protect married women from being harassed or subjected to cruelty by husbands and/or their relatives. This law was mainly aimed at curbing dowry harassment. Unfortunately, this law has been misused to harass men and their families rather than protect genuine female victims of harassment.

The Supreme Court of India itself has labeled the misuse of section 498a as “legal terrorism” and stated that “many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive. In such cases, acquittal of the accused does not wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery.” In agreement with the above statement, the findings of a study conducted by The Centre for Social Research indicated that “98 percent of the cases filed under IPC section 498a are false”. Nevertheless, the law has been always justified based on its intention of protecting women. At this point it would be worthwhile to think about how IPC section 498a has really affected women.

Going by the conviction rate the proportion of women who have genuine cases is 2%. Most women who file 498A are from urban backgrounds and are either capable of fending for themselves or have enough family support to fall back on. The proportion of women who belong to this category is 98%. In the 98% of false cases, in every instance that 1 daughter-in-law files a false complaint at least 2 women (an innocent mother-in-law and sister-in-law) are arrested and undergo stress, humiliation and harassment in the hands of the exploitative police, lawyers, staff and officials in Indian courts before being acquitted several years later.

The number of cases that are filed in police stations or courts are the basis for the official statistics of dowry harassment. So, given that the law allows women unlimited scope to fabricate lies (with no penalty of perjury) and given that women are encouraged to keep filing false cases the statistics of “dowry harassment” are bound to rise while the problem of genuine harassment is left unchecked. So, the government has, in the name of protection of women, done grave injustice to two groups of women. The first group constitutes the genuine victims of dowry harassment whose misery remains unresolved but is constantly alluded to in order to justify the law. The second group consists of innocent mothers and sisters of husbands who are criminalized and harassed by the police and the legal system without any regard to their age, health or marital status. Pregnant women, unmarried sisters, ailing mothers and even aged grandmothers have been sent behind the bars under false allegations but their pain and suffering has not even been acknowledged leave alone addressed by the Government. Through IPC section 498a, the Government is actually protecting those women that indulge in perjury, blackmail, extortion and harassment of their husbands and in-laws.

WHAT GOVERNMENT COMMITTES, SUPREME COURT AND COMMISSIONS SAY:

MALIMATH COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM: There is a general complaint that section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.

Recommendation of Malimath Committee: (118) The Code may be suitably amended to make the offence under Section 498 A of the I.P.Code, bailable and compoundable.

LAW COMMISSION OF INDIA, ONE HUNDRED AND SEVENTY SEVENTH REPORT ON LAW RELATING TO ARREST: Another recommendation made in the 154th Report is to make the offence under section 498A compoundable and place it in sub-section (2) of section 320 which means that it shall be compoundable with the permission of the court. Though there has been some opposition to this recommendation from certain women’s organizations, today there is an overall realization that the said provision is being utilized quite often to harass the relatives of the husband and is being used as a lever of pressure. We may also mention that over the last several years a number of representations have been received by the Law Commission from individuals and organizations to make the said offence compoundable. We are inclined to agree with the same and accordingly reiterate the recommendation in the 154th Report that the offence should be made compoundable with the permission of the court.

LAW COMMISSION OF INDIA, ONE HUNDRED AND FIFTY FOUR REPORT ON code of CrPC, 1973: Recommended to make the offence under section 498a IPC compoundable.

128^th REPORT OF COMMITTEE ON HOME AFFAIRS: [10.1] The Committee reiterates its observations made in the One Hundred and Eleventh Report regarding Section 498A IPC wherein it had recommended that express provisions may be made in Section 320 of CrPC to reflect the availability of compounding of offence to the relatives of the husband. The Committee also feels that offence under section 498 need be made compoundable by the woman concerned in addition to the husband of the woman.

FORMER CJI BALAKRISHNAN ADMITS TO MISUSE OF DOWRY LAWS: Dealing a blow to women’s rights activists who have been stringently defending the Section 498A provision of the Indian Penal Code, Chief Justice of India K G Balakrishnan on Saturday said that in some cases this section — that deals with matrimonial cruelty — was being `grossly misused’.  Elaborating on false cases being filed in recent times, the CJI said that relatives not involved with a matrimonial dispute were unfairly implicated. “In some cases, 498A is grossly misused,” he said. Balakrishnan was speaking at a seminar, `Marriage laws — issues and challenges’, organised by the National Commission for Women.

WHAT UNION HOME MINISTRY SAYS: Giving reply to a question in Lok Sabha on Dec3, 2009, Honorable Union Minister for Law & Justice said, “A number of representations have been received from various quarters regarding the misuse of the provision of Section 498A of IPC. Information regarding its misuse is not collected by National Crime Records Bureau. Giving this information in the Lok Sabha to a written question Dr.M.Veerappa Moily, Minister of Law and Justice said that the matter has been referred to the Law Commission of India to study the use of the provision of this section and hold consultation and suggest amendments, if any, to the provision. An advisory has also been issued to the State Governments to prevent the misuse of the said section.”

SUPREME COURT OF INDIA: While deciding CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus State of Jharkhand & Another ….Respondents JUDGMENT Honorable Supreme Court said:

It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

As is seen from above findings, even the various government committees had recommended from time to time to bring in suitable amendment to 498A IPC but Government has not taken any action on this till now. We undersigned citizens now have hope that our voices of distress and our pain and sufferings will be heard by the Honorable committee and the committee will bring in suitable amendments to 498A IPC which is the most abused and misused law in India. For the kind consideration of the committee we undersigned submits few suggestions and comments.

• Misuse of the process of law, not only costs the public exchequer dearly, but also destroys the personal lives of many innocent citizens. Misuse of law should be treated as a serious crime, and persons who use women-protection laws as weapons for settling personal scores in marital disputes should be severely punished. We all know that justice delayed is justice denied. Since currently there is no fear among those who file false cases against husband and in-laws hence we suggest to bring in a misuse clause to the IPC 498A. Thus we suggest to introduce a punishment clause as below: “Whosoever misuses IPC 498A, in any way, to cause harassment to the opposite party, will be sentenced to a term of 3 years, immediately on completion of trial, by the very same court, which was conducting the trial, and would also pay a fine, equal to Rs 1,000,000/- (Rs. Ten Lakhs) to the opposite party.”

• We suggest making 498A IPC Gender Neutral as the social situation and circumstances had undergone tremendous change in last 37 years since the law was introduced. Now there are thousands of reports and incidents where wives are treating their husbands and in-laws with cruelty. So such husbands should also have provisions so that in case of harassment and cruelty from wife they should be able to lodge complaint. Hence we suggest to make it gender neutral so that such victim husbands also are able to file complaint.

• In the last decade or so a very disturbing trend has emerged in the society and that is “breaking of families at an alarming rate”. If we analyze the reason then the primary reason for this is “Heavy misuse of gender biased laws” like 498A IPC. 498A IPC is non bailable and there is a growing tendency to rush to police station and file false case against husband and all his relatives. It is a known fact that even if husband or his relatives are behind bar even for a day then chances of reconciliation are NIL. Hence we suggest to consider our recommendations to make this section bailable.

• As per Home Ministry data, thousands of innocents senior citizens, age old mother-in-laws, pregnant sister-in-laws and school going children have been arrested on a mere complaint and sent to Jail. Hence we suggest to make suitable amendments so that tendency to rope in each and every relative of the husband must be stopped.

All below undersigned signatories citizens are victim of due to the misuse of this law and appeal to the Honourable committee to make suitable amendments. We have already suffered heavy injustice due to the misuse of this law but if suitable amendments are brought in to curb misuse then atleast the future generation will be able to live in a fearless environment of peach and harmony where no one can me harassed and tortured due to misuse of 498A IPC.

Jai Hind!!

Sl no	Name	Address	Contact

Sl no	Name	Address	Contact

Rajya Sabha individual format 3

16th December 2010 / Bangalore

To,

Shri Rakesh Naithani,Joint Director, Rajya Sabha Secretariat, Parliament House Annexe,

New Delhi – 110001 Tel: 011-23035433 (O), Fax: 011-23794328

Subject: Comments/Suggestions regarding amendment to section 498A of the IPC.

I, ______________________an ordinary citizen of India want to bring to the kind attention of yourself that 498A IPC is one of the most abused and misused provision in this country. The law is so misuse that on a mere complaint of wife police is hell bent to arrest all those named in the FIR without any investigation or proof.

It is a common knowledge that divorce rates have skyrocketed in this country due to various reasons such as urbanization, more and more women are working now hence the couple les less time at home, increase in extra martial affair etc.

Now whenever there is a matrimonial dispute between husband and wife then immediate reaction of the wife and her family member is to rush to the nearest police station and file a complaint. Little realizing that once husband and his family members are humiliated by the unprofessional police (who are not capable to deal a dispute of matrimonial in nature) then all chances of reconciliation are broken.

•        I as an ordinary citizen of this country also fails to understand that why a dispute which is of civil in nature is being tried under criminal law?

•        I also fail to understand that what is the need and necessity to rush to arrest all the members named in the FIR.

•        I also fail to understand why even grandparents and even school going children have been arrested by misusing this Act.

This law is so biased in nature that anyone can be victim of this law. Just to give an example, even senior congressmen and former Chief Minister of Madhya Pradesh Shri Arjun Singh and Former Pakistan cricketer Shoaib Malik has also not been spared from this law.

While no one is questioning protection and safety to women of the society but at the same time law should be dynamic rather than static. The law is made by Honorable parliament by keeping in mind the need of the society. In today’s changed social situation and circumstance, where women are getting equally educated and better employment are filing cases against their husband and his family members at the drop of the hat.

Every failed marriage is being shown as dowry harassment case. No wonder most of these cases are found false by the courts where it is found that complaints are exaggerated and far from truth.

Unfortunately there is no law in this country to defend husband if they are victims of Domestic Violence or cruelty at the hands of their wives. Even the Protection of women from domestic violence Act assumes that only a women can be a victim of domestic violence.

I as an ordinary citizen of this country appeal to the Honorable committee to consider making 498A IPC…

•        Gender Neutral (So that such husbands who are victims of cruelty at the hands of wife also can file complaint),

•        Bailable (So that no arrest is made just on the basis of a complaint),  

•        Heavy punishment to those who are found misusing this section.

•        No arrest of elderly people, children and other relatives of husband

Yours Sincerely

Name:

Address:

 

Mobile:

Signature:

Rajya Sabha individual letter format 2

p { margin-bottom: 0.08in; }

Date:

Place:

To,

Shri Rakesh Naithani, Joint Director, Rajya Sabha Secretariat, Parliament House Annexe, New Delhi – 110001 Tel: 011-23035433 (O), Fax: 011-23794328

Subject: Comments/Suggestions regarding amendment to section 498A of the IPC.

 

Sir,

 

I have come to know that a committee has been formed by Rajya Sabha to consider amendments to the 498A IPC in view of its rampant misuse. I am myself a victim of misuse of this law.

Sir, I would like to point out that this law was made in 1984 with a view to protect women but unfortunately this law has been misused to harass and torture women only.

It is a known fact that just on a complaint of a wife her mother-in-law and sister-in-law are arrested and sent to jail. This is also a matter of common knowledge that in most of the jails the majority of the women under-trials are lodged there due to false complaint by there daughter-in-law.

This IPC section is so cruel that is assumes that all daughter-in-law are sati savitri and all mother-in-law are bad. Whereas the truth is that today’s women are highly educated and socially and financially independent and empowered and they do not care or respect their in-laws.

It will be utter foolishness to assume that a 25-30 year old daughter-in-law who is physically strong can be harassed by mother-in-law who is old and senior citizen. Unfortunately this law does not give any scope to such mother-in-law who are victim of Domestic violence at the hands of their cruel daughter-in-law.

I think in view of rampant misuse the time has come now for making suitable amendments to 498A IPC.

 

In this regard I suggest following to the Honorable committee of Rajya Sabha for their kind consideration:

1. Provide protection to age old and helpless mother-in-law who are victim of cruelty of daughter-in-law.
2. No arrests of sister-in-law who are staying separately and are married.
3. Do not treat the complaint of wife as gospel of truth without evidence.

 

Your sincerely

 

Name:

Address:

 

 

Contact:

 

Rajya Sabha individual letter format 1

Date:

Place:

To,

Shri Rakesh Naithani, Joint Director, Rajya Sabha Secretariat, Parliament House Annexe, New Delhi – 110001 Tel: 011-23035433 (O), Fax: 011-23794328

Subject: Comments/Suggestions regarding amendment to section 498A of the IPC.

Sir,

This is in response to the advertisement published in leading newspapers last month inviting suggestions and comments from various cross section of society regarding proposed amendments to 498A IPC. I am myself a victim of this Draconian law which is heavily abused and misused by cruel wives in a failed marriage to take revenge against husband and his family members to Jail.

Even though the misuse is going on from the inception of this law but the misuse has increased drastically from year 2000 after the Indian Economy started booming. As an ordinary citizen of this country I want to bring to the kind attention of the honorable committee of Rajya Sabha that this IPC section is being grossly misused as legal extortion.

In a failed marriage the tendency of the wife is to give complaint to the police who are hell bent on arresting all those named in the FIR. The extortion starts at the level of the police station. Huge amount of cash is demanded from husband, which runs into several lakhs of rupees, in keeping the status of the husband in mind and in case husband refuse to pay or is unable to pay then all those named are arrested and sent to Jail.

Before to this they are threatened with more false case like DV Act, 125 CrPC 125 etc and are threatened that in case of non payment, husband and his family members have to run around the corridors of court for several years.

Thousands of husbands and their family members have committed suicide as they are unable to bear the humiliation and injustice they have to suffer in the police station at the hands of their daughter in law.

The ordinary citizen of this country do not know what is 498A IPC till he is dragged to the police station and humiliated.

Sir, the rich and mighty people who have money and influence settle their cases by paying huge amount of money to their wife but the real victim in this racket is the poor and middle class people who are unable to either pay the huge demand of money from wife or are not willing to compromise with their self respect.

I think the Honorable committee is aware that even the former chief minister Shri Arjun Singh and Famos pakistani Crickter Shoaib Malik has not been spared and are victim of this law.

Sir, even though there has been continuous and non stop of coverage of media on the issue of heavy misuse of 498A IPC but till now there has been no word from government regarding amendment to this law. But due to the formation of the committee of Rajya Sabha my hopes have been renewed that the pain and suffering of lakhs of Indian family who have suffered and are still suffering will reach Government.

In this regard I suggest following to the Honorable committee of Rajya Sabha for their kind consideration:

1. As it is a know fact that husband and his family members are humiliated, harassed and tortured in the police station, hence I suggest to remove the role of the police completely in a matrimonial dispute.
2. As the cases takes many years in the Magistrate court hence special fast track court should be constituted to try these cases.
3. Heavy punishment of 3 years imprisonment should be introduced to those women who are found misusing this IPC section.

 

Your sincerely

 

Name:

Address:

 

 

Contact:

 

Comments/Suggestions from NFHS to Rajya Sabha regarding amendment to section 498A of the IPC

PDF version–>Rajya-Sabha-Sub-Committee-498A

6^th December 2010

Bangalore

To,

Shri Rakesh Naithani, Joint Director, Rajya Sabha Secretariat, Parliament House Annexe,

New Delhi – 110001 Tel: 011-23035433 (O), Fax: 011-23794328

Subject: Comments/Suggestions from “National Family Harmony Society” regarding amendment to section 498A of the IPC.

About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 15500 members all over India. To know more about us please visit http://www.family-harmony.org / http://www.498a.org.in.

Honorable members of the Parliament have been raising questions in the parliament at regular interval regarding the heavy misuse of IPC Sections 498A, 304B, Dowry Prohibition Act and related laws. Please find some of the questions raised by members of Parliament regarding heavy misuse of women centric laws.

 

T a b l e – 1

Sl No	Question number	House	Name of  Member	Answered on	Subject
1	1409	RAJYA SABHA	SHRI MOTILAL VORA	01.08.2003	MISUSE OF DOWRY PROHIBITION ACT
2	1610	RAJYA SABHA	SHRI R.S. GAVAI	16.03.2005	INCREASING NUMBER OF FALSE DOWRY CASES
3	2698	RAJYA SABHA	SHRI ABU ASIM AZMI	22.08.2005	AMENDMENTS TO DOWRY PROHIBITION ACT
4	2805	RAJYA SABHA	PROF. RAM DEO BHANDARY	23.08.2006	HARASSMENT DUE TO DOWRY ALLEGATIONS
5	3876	RAJYA SABHA	SHRI MAHENDRA SAHNI	10.05.2007	AMENDMENT IN ANTI DOWRY LAW
6	4501	RAJYA SABHA	SHRI SURENDRA LATH	16.05.2007	MISUSE OF DOWRY PROHIBITION ACTs
7	1474	RAJYA SABHA	SHRI BRIJ BHUSHAN TIWARI	03.12.2007	AMENDMENTS TO DOWRY LAWS
8	1696	RAJYA SABHA	SHRI LALIT KISHORE CHATURVEDI	05.12.2007	PUNISHING PEOPLE FILING FALSE DOWRY RELATED CASES
9	2933	RAJYA SABHA	SHRI KAMAL AKHTAR	21.04.2008	STIFFER ANTI DOWRY LAWS
10	1474	RAJYA SABHA	SHRI BRIJ BHUSHAN TIWARI	03.12.2007	AMENDMENTS TO DOWRY LAWS
11	1073	RAJYA SABHA	SHRI AMAR SINGH	10.03.2008	AMENDMENT OF ANTI DOWRY ACT
12	304	RAJYA SABHA	ABU ASIM AZMI	20.10.2008	MISUSE OF ANTI DOWRY ACT
13	440	LOK SABHA	SHRI SANAT KUMAR	28.08.2001	Dowry Prohibition Act and Domestic
14	1012	LOK SABHA	Shri RAMDAS ATHAWALE	06.03.2007	AMENDMENT IN DOWRY ACT
15	440	LOK SABHA	Shri SANAT KUMAR MANDAL	20.02.2009	DOWRY PROHIBITION ACT AND DOMESTIC VIOLENCE ACT
16	2030	LOK SABHA	Shri DALPAT SINGH PARASTE	30.11.2007	ABUSE OF ANTI-DOWRY LAW
17	193	LOK SABHA	Shri RAGHUVIR SINGH KAUSHAL	16.11.2007	FALSE IMPLICATION IN DOWRY DEATH CASES
18	1181	LOK SABHA	Kunwar REWATI RAMAN SINGH	21.08.2007	COMPLAINTS ON DOWRY BY NRIs
19	382	LOK SABHA	Shri N CHELUVARAYA SWAMY SWAMYGOWDA	20.11.2009	MISUSE OF DOWRY PROHIBITION ACT, 1961S

 

Honorable Supreme Court and various High Courts have observed from time to time that these women centric laws are being highly misuse. Honorable Supreme Court had observed that IPC 498A is being used as “Legal Terror”. Some of the observation of the Supreme Court and various High Courts are compiled below:

T a b l e –  2

Sl No	Court	Case Number/Reported	Year	Between
1	Supreme Court	Writ Petition (C) No. 141 of 2005)	2005	Sushil Kumar Sharma Vs. Union of India (UOI)
2	Supreme Court	Appeal (crl.) 206	2008	Som Mittal Vs Govt. of Karnataka
3	Supreme Court	Appeal (crl.) 1716 of 2007	2007	Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr
4	Supreme Court	2000 (2) JCC (SC) 657: 2000 (5) SCC 207	2000	Kans Raj vs. State of Punjab and others
5	Delhi HC	Crl.A.No.339-41/2005	2010	–
6	Delhi HC	CRL.M.C.7262/2006	2007	–
7	Delhi HC	CRL. R 462/2002	2003	Savitri Devi Versus  Ramesh Chand and Ors.
8	AP HC	A. A. O. No. 1039 of 2001	2002	Saritha Vs R.Ramachandra
9	Punjab & Haryana HC	(1990)2 Rec Cri R 243	1990	Jasbir Kaur vs. State of Haryanas
10	Supreme Court	CriLJ 2993	2000	Kanaraj vs. State of Punjab
11	Karnataka HC	2002 CriLJ 3605	–	State Vs. Srikanth
12	Supreme Court	2002 CriLJ 4124	2002	Mohd. Hoshan vs. State of A.P.
13	Delhi HC	2003 CriLJ 2759	2003	Savitri Devi vs. Ramesh Chand
14	Punjab & Haryana HC	2003 CriLJ 3394	2003	Bhupinder Kaur and others vs. State of Punjab and others
15	Jharkhand HC	2004 CriLJ 2989	2004	Arjun Ram Vs. State of Jharkhand and another
16	Punjab & Haryana HC	RCR (Criminal) 163	2002	Mukesh Rani Vs. State of Haryana
17	Delhi HC	2001 (2) JCC (Delhi) 86	2001	Anu Gill Vs. State & Anrs
18	Supreme Court	AIR 2005 SC 1989	2005	Ramesh & Ors. Vs. State of Tamil Nadu
19	Delhi HC	CHANDER KANTA LAMBA & ORS	–	–
20	ADDITIONAL SESSIONS JUDGE	Revision No. 88/2008/2002	2002	–
21	Punjab & Haryana HC	–	2002	Krishan Jeet Singh vs State Of Haryana
22	Orissa HC	–	2003	Benumadhab Padhi Mohapatra vs State
23	AP HC	Criminal Petition No. 6642 of 2007	2007	Kamireddy Mangamma and others
24	Allahabad HC	CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010	2010	Sanjeev Kumar & Others vs State Of U.P.s

 

 

The Universal Declaration of Human Rights states:

• Everyone has the right to life, liberty and security of person.
• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
• Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
• No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

 

In blatant violation of all the above rights, thousands of husbands and their families are arbitrarily arrested every year, without evidence or investigation, under IPC Sections 498A, 304B, Dowry Prohibition Act, and related wife-centric laws which presume that the accused are “guilty until proven innocent”.

National Human Rights Commission (NHRC) has noted the misuse of dowry laws, arrest of innocent individuals and the resultant overcrowding of prisons. NHRC has urged the judiciary and law enforcement agencies to take measures against these abuses. High Courts across the country and the Supreme Court have condemned the misuse of dowry laws. Various police authorities had issued standing instructions vide memo to check arbitrary arrests but they are rarely followed in police stations. DGP’s of various states had also issued circulars to implement 11 guidelines issued by Honorable Supreme Court of India regarding arrests and detention of Individuals in Cr WP No. 539/1986 and Cr WP No.592/1987. By taking note of the heavy misuse of the 498A IPC, recently on October 20, 2009, Union Ministry of Home Affairs had issued an advisory to all the state Governments and Union Territories. National Commission of Human Rights also has issued guidelines regarding arrests.

Nevertheless, abuse of police powers continues and unnecessary arrests have only been growing in India. Police routinely enter people’s homes at ungodly hours, take accused men and women into custody, and incarcerate them in the name of “protecting women from cruelty and harassment”. Innocent citizens are illegally detained, humiliated, subjected to mental and physical torture, blackmail and extortion. The honor and reputation of these accused individuals is simultaneously attacked through media trial and unrestrained slander by women’s organizations every day. Thousands of men and women have been driven to suicide due to the trauma of false cases, arrest, prolonged trials and the resultant humiliation and financial troubles they have to endure.

According to statistics published by the National Crime Records Bureau in 2007 alone, an overwhelming 94% of the individuals arrested under IPC Section 498A were found not guilty. A closer look at individual cases under Section 498A reveals that arrests are made by lower cadre police officials without proper justification and only with the intent of terrorizing innocent citizens and extorting money from them under the threat of imprisonment and long-drawn legal battles.

Our numerous pleas to the Government of India to stop arbitrary arrests of citizens under IPC Section 498A have fallen on deaf ears. On the other hand, new laws are always on the anvil (sexual assault, work place harassment, acid attacks etc.) which stress on immediate arrest of men upon mere accusations made by women.

While it is amply clear that under the prevailing circumstances, arrest is inevitable for any man facing allegations of abuse or assault, it is imperative that innocent citizens are prepared to go to jail even if they committed no crime. Ordinary law abiding citizens and their kin should be freed from the fear of jail and the concomitant feelings of humiliation and suffering so that they do not drive themselves into depression, ruin their health or end their own lives.

In spite of All round coverage by Media regarding heavy Misuse of IPC 498A, questions in the parliament by honorable MPs, Critical remarks by various HCs and SC, Observation by NHRC, advisories issued by your ministry from time to time, State Governments are not taking any steps to prevent the heavy misuse of IPC Sections 498A, 304B, Dowry Prohibition Act and related laws. These laws are so biased and dangerous that any innocent can become victim just on a false complaint by a woman. Even celebrities like Pakistani Cricketer Shoaib Malik and Former Union Minister Arjun Singh have not been spared have been falsely implicated under these laws.

COMMENTS/SUGGESTIONS/RECCOMENDATIONS/REASONING/OBJECTION

 

1. Make 498A IPC Gender neutral
   1. a.   NFHS Objection: Only a wife can make a complaint under IPC 498A against husband. Husband and his family members have no right to complain under 498A IPC even though if they were harassed and tortured by daughter-in-law. 
   2. b.   NFHS reasoning: IPC 498A was introduced long back when the social situation and circumstance were totally different in India. This was around 36 years back. Now the reality is women are highly educated, working and financially independent. It is universal truth that laws cannot be constant. Law needs changes as and when society evolves. Normally a wife in their complaint to the police alleges that her in-laws had been harassing her for dowry. It is even absurd to think that age old parent who might be suffering from various ailments and dieses and are physically weak can harm or harass young daughter-in-law who is educated and physically strong.
   3. c.   NFHS Suggestion: Make 498A IPC Gender neutral so that such husbands who are victims of cruelty from their wives can also lodge complaint. Hence NFHS suggests to consider making this IPC section gender neutral so such husbands who are victim of cruel behavior can also lodge complaint.

 

1. Bring 498A IPC under civil law
   1. a.   NFHS Objection:  IPC 498A is under criminal law even though it deals with a dispute, which is of matrimonial in nature.
   2. b.   NFHS reasoning: E.g the proceedings under section 125 of the CrPC (even though is criminal procedure code) are basically civil in nature as had been held by Honorable Supreme Court and the trial is conducted in the Family court as it deals with maintenance to wives and parents. Honorable Delhi High court in Narender Kumar And Anr. vs State (Govt. Of Nct Of Delhi) [Along With Crl. Appeal Nos. 748, 749 And 787/2004] held that “A failed marriage is not a crime however, the provisions of Section 498A are being used to convert failed marriages into a crime and the people are using this as tool to extract as much monetary benefit as possible.” Hence a failed marriage must not be criminalized.
   3. c.   NFHS Suggestion: Bring the IPC 498A under civil law because it deals with matrimonial dispute.

 

1. Complaint should be made to magistrate not police
   1. a.   NFHS Objection:  Under IPC 498A complaint is made to the police.
   2. b.   NFHS reasoning: Since IPC 498A is currently a penal code and hence complaint has to be lodged in the police station and police carries the investigation. Our police system who deals with criminals, also treat a complaint under IPC 498A in similar fashion and husband and his family has to undergo humiliation, harassment, torture, mental agony and the trauma of arrest and subsequent pain of undergoing Judicial Custody due to such arbitrary arrests on a false complaint.
   3. c.   NFHS Suggestion: Hence NFHS suggests that the role of police should be totally removed in a dispute, which is of matrimonial in nature, and the complaint should be lodged only directly to magistrate.

 

1. Introduce heavy punishment in case of misuse of 498A IPC
   1. a.   NFHS Objection: There is no punishment for the complainant if the complaint is found false and the court acquits husband and his family members.
   2. b.   NFHS reasoning: While any law is made by Honorable parliament with good intention but much needs to be desired when the law made with good intention gets misused. Data obtained from NCRB, New Delhi shows that only 2% complaint under 498A IPC actually ends in conviction. Thus clearly indicating that most of the complaints are found false and are filed at the heat of the moment with exaggeration at the instigation of family members and relatives to take revenge. As Honorable Supreme court had in Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 266 observed as: “The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision.”.
   3. c.   NFHS Suggestion: Introduce heavy punishment of 3 years of imprisonment if complaint is found false. Hence NFHS suggests that a punishment clause must be added to IPC 498A so that people will have fear before filing a false complaint.

 

1. Make 498A IPC bailable
   1. a.   NFHS Objection: As soon as a complain is made, the tendency of the police is to arrest as many people named in the FIR saying it is non bailable.
   2. b.   NFHS reasoning: Once husband is arrested then any chance of compromise or reconciliation is NIL. Honorable Supreme Court of India in “1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2) 662” dated “25/04/1994” by Honorable Former Chief Justice VENKATACHALLIAH, M.N. held that “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.”
   3. c.   NFHS Suggestion: NFHS suggests that to make 498A IPC bailable.

 

1. Tendency to include as many people as accused in 498A IPC should be stopped
   1. a.   NFHS Objection: There is a tendency to implicate each and every relative of the husband in the FIR.
   2. b.   NFHS reasoning: IPC 498A must be amended in such a way so that tendency to name as many relatives in the FIR is curbed. This has become a trend that in case of a matrimonial dispute due to whatever reason wife and her parent rush to the police station and name as many relatives with an intention to take revenge. Honorable Supreme court in CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus State of Jharkhand & Another ….Respondents JUDGMENT held that “The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection”.
   3. c.   NFHS Suggestion: Hence NFHS suggests 498A IPC should be amended in such a way that only at the most only husband should be named in the FIR.

 

1. Tendency to make false exorbitant claim in 498A IPC must be stopped
   1. a.   NFHS Objection: Exorbitant claims are made that huge sum of cash was given as dowry without any proof or evidence.
   2. NFHS reasoning: It has become a standard practice that in most of the complaint false claims are made that huge amount of sum was given as dowry even though the financial status of the wife or her parent is nowhere close to that standard. Such false claim of the girl and her parent is taken as gospel of truth and FIR and subsequently chargesheet is registered against all those named in the FIR. The result is all those named in the FIR have to run around the corridors of the courts as the trial takes minimum of 7-8 years. Honorable Delhi High Court in CRL.M.C.7262/2006 held that “Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.”
   3. c.   NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that Income Tax returns and PAN card details of the wife and her parents should be mandatory before registering FIR.

 

1. Involve Dowry prohibition officer in case of a complaint under 498A IPC
   1. a.   NFHS Objection: Dowry prohibition officers are not at all being involved in this process.
   2. b.   NFHS reasoning: It has become a standard practice that in most of the complaint false claims are made that many articles were given to the husband and his relative as dowry during the marriage without any proof or evidence. Dowry prohibition officer must file an affidavit to the court with proof and evidence of the claims of the wife regarding the dowry exchange.
   3. c.   NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that till the dowry prohibition officer files an affidavit to the court no arrest should be made.

 

1. Marriages are not registered in India
   1. a.   NFHS Objection: Most of the marriages are not being registered still in India.
   2. NFHS reasoning: Many marriages are not being registered in India. The court should not entertain complaint if the marriage was not registered. All marriage certificates must clearly specify any stridhan or dowry, which was given to the wife or to the husband including cash or any articles.
   3. NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that no complaint should be entertained if marriage certificate is not produced.

 

1. Giving dowry is also crime
   1. a.   NFHS Objection: Giving dowry is also a crime.
   2. NFHS reasoning: As per section 3 of the Dowry prohibition act, giving dowry is also a crime. In most of the false complaints wife and her parents claim that they have given dowry at the time of marriage. Most of such claims are false and are made only with an intention to arrest husband and his family members. If simultaneously a FIR is also booked against wife and her parent then it will instill fear among them not to lodge false complaint. Honorable Delhi High Court in CRL.M.C.7262/2006 held that “I consider where these kinds of allegations are made, the police should simultaneously register a case under Dowry Prohibition Act (in short, the Act) against the parents of the complainant as well, who married their daughter despite demand of dowry. Section 3 of the Act prohibits giving and taking of dowry. If a woman of grown up age and well educated gets married to a person despite dowry demand, she and her family becomes accomplice in the crime under Dowry Prohibition Act.”
   3. NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that immediately a FIR against wife and her parents should also be for “Giving dowry”.

 

1. Encourage mediation/reconciliation before filing FIR
   1. a.   NFHS Objection: There are no attempt made by the police for reconciliation or mediation whenever they receive a complaint from wife and her parent alleging dowry harassment and invoking section 498A of the IPC.
   2. NFHS reasoning: Honorable Supreme Court in CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus State of Jharkhand & Another ….Respondents held that “It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive.” A large number of disputes can be solved without filing a case if the authorities make a fair attempt to resolve the dispute. Wives who are in matrimonial dispute with husband are wrongly advised to use this section and once a case is registered then any possibility of reunion between husband and wife becomes NIL. Honorable Supreme Court in CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus State of Jharkhand & Another ….Respondents held that “It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether.”
   3. NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that as soon as authorities under 498A IPC receive a complaint immediately both the parties should be sent to the mediation center to so that the dispute can be sorted out amicably.

 

1. 498A IPC must be tried in fast track court
   1. a.   NFHS Objection: A trial under 498A IPC takes minimum of 5-8 years in the lower court.
   2. NFHS reasoning: It is a common knowledge that a trial under 498A IPC takes a minimum of 5-8 years in the trial court and if the matter is appealed to the session court, High court and Supreme Court it can take around 15-20 years. Husband and his relatives spend a significant portion of their life running around the corridors of the court, police station and lawyer’s office.
   3. NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that that 498A IPC should be tried in the fast track court with a mandate to deliver judgment in 60 days as is the case in Domestic Violence Act.

 

1. Avoid double jeopardy
   1. a.   NFHS Objection: Wife makes identical allegations in 498A IPC, Domestic Violence and CrPC 125 cases.
   2. NFHS reasoning: Apart from 498A IPC wife also file a case of Domestic Violence and CrPC 125 against husband to seek civil relief like maintenance, residence etc. It has become a trend that normally the allegation of the wife against husband in the Domestic violence case is identical to those mentioned in the 498A IPC. Husband has to run from one court to another to defend himself innocent for the same set of allegations. Since the allegations in both the cases are similar hence both Domestic violence case and 498A IPC must be combined together so that a lot of harassment in the form of running around the courts can be reduced. It will not only harassment against husband and his family is reduced but also it will save a significant time of the court thus bringing down pendency.
   3. NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that to avoid harassment to husband and his family from double jeopardy all cases must be clubbed together.

 

1. No arrests of children and grand parents
   1. a.   NFHS Objection: We object to the instances of arrest of children and grand parents on a complaint of 498A IPC.
   2. b.   NFHS reasoning: It is a common knowledge that there are hundreds of incident where on a mere complaint innocents school going children, pregnant sister-in-laws and grand parents had been arrested and sent to Judicial Custody. Honorable Supreme Court of India in “1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2) 662” dated “25/04/1994” by Honorable Former Chief Justice VENKATACHALLIAH, M.N. held that “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.”
   3. c.   NFHS Suggestion: NFHS recommends that 498A IPC must be amended in such a way that children and grandparents and other relatives must not be arrested.

 

1. Stop legal extortion
   1. a.   NFHS Objection: 498A IPC is being used for legal extortion
   2. b.   NFHS reasoning: Due to matrimonial disputes women lodge complaint under 498a and later they deny to give divorce to husband when he approaches saying that marriage is on rocks. Women take such double standard which are completely different to each other. It doesn’t make sense for a person to ride on 2 horses at the same time, which are going in opposite directions, unless there is a hidden agenda. Often these women drag the divorce cases in order to harass their husbands so that he will end up paying huge amounts as settlement amount or alimony. This is nothing but legal extortion and legal blackmailing.
   3. c.   NFHS Suggestion: If anytime during or after the registration of the complaint under 498a or during the mediation/reconciliation courses before the registration of the case, wife expresses her wish to deny the divorce to her husband or if she wishes to continue to live with him then the 498a case should be declared null and void. If wife wishes to continue the case under 498a and also wishes to continue to live with him, then husband should be made eligible for automatic divorce.

 

 

P Suresh, President,                                               M Mahesh, General Secretary,

9880141531                                                                    9731569970

National Family Harmony Society                               National Family Harmony Society

Opposing MARRIAGE LAWS (AMENDMENT) BILL, 2010

To:-      

THE COUNCIL OF STATES (RAJYA SABHA)

The petition of Suresh P, XXXXXXXXXXXXXX, Bangalore

Sheweth

1) Amending section 13D of the MARRIAGE LAWS (AMENDMENT) BILL, 2010 to make it gender neutral

2) Condition of finishing all litigations between the Husband and Wife before granting divorce in grounds of Irretrievable breakdown

and accordingly your petitioner  pray that

“Special provision be made in the MARRIAGE LAWS (AMENDMENT) BILL, 2010 so that In cases where the husband is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, he also may oppose the grant of a decree on the ground, just like the wife that the dissolution of the marriage will result in grave financial hardship to him and that it would in all the circumstances be wrong to dissolve the marriage”

And

“An amendment will be inserted into the MARRIAGE LAWS (AMENDMENT) BILL, 2010 that decree of divorce be granted only when all litigation including but not limited to child custody between the husband and the wife has been resolved to the satisfaction of either of the parties, with the post condition that no party will initiate any other litigation against each other once the divorce decree has been granted”

And

“Since this amendment is brought by Law Ministry in hurry without any public debate hence this BILL be returned to the Law ministry to consider the strong objection of the citizens of this country and bring in fresh BILL which is gender neutral”

 

To,
The Secretary-General,
Rajya Sabha, Parliament House,
New Delhi 110001

Subject: Prayer to return back the proposed MARRIAGE LAWS (AMENDMENT) BILL, 2010, to Union Law Ministry as it is not Gender Neutral and unconstitutional and brought to the Rajya Sabha without any public debate and opinion and also there is heavy scope of misuse of the proposed amendments.

Honorable Secretary-General,

This is with regard to the proposed MARRIAGE LAWS (AMENDMENT) BILL, 2010 tabled by the Honorable Law Minister Shri Veerappa Moily on the table of the Rajya Sabha to amend the Hindu Marriage Act and Special Marriage Act to make Irretrievable breakdown a new ground for divorce. We strongly oppose the proposed amendment to the Hindu Marriage Act on the following grounds among others.

Grounds

1.            Proposed amendment is not Gender Neutral

We would like to bring to your kind notice and attention that Honorable minister for law and justice has promised in the past to make all the new law to be Gender Neutral and amend the current laws to be of Gender Neutral. Please refer to various media report published in this regard.

http://timesofindia.indiatimes.com/india/Gender-neutral-laws-in-4-yrs-Moily/articleshow/ 5496423.cms

The proposed amendments are not gender neutral. Though the promise of the law minister regarding Gender neutral was not made on the floor of the house but even then being a Union Minister he cannot keep making promise to the citizens of this country and do contrary things on the floor of the house. We feel misleading the citizens of this country should equally attract contempt proceeding as misleading the floor of the house.

2.            Proposed Section 13D of the Irretrievable Breakdown of marriage law duplicates the Maintenance laws once again

There is a very severe and disturbing trend these days for create duplicate laws in the Gender area when existing laws serve the same purpose. Indian Maintenance laws where maintenance can be demanded by a wife using 5 separate laws namely HMA 24, HMA 25, CrPC 125, DV Act Sec12 and Hindu adoption and succession Act (Section 18). Most litigants use at least 3 at any time to maximize their gains from misusing maintenance laws. If the proposed BILL is passed then there will be total of 6 sections under which a Hindu women can claim maintenance. This will lead to unnecessary complications and duplication of laws. 

3.            Discrimination against Indians Fathers in Child Custody cases will increase

A divorce between husband and wife should not become divorce between father and children. In the best of children a separation between husband and wife should also include provisions on mechanism to deal child custody matters. It is universally accepted fact that a child can be brought in the best manner if he/she gets shared parenting. The proposed BILL is silent on the issue of Child Custody.

4.            The Controversial sections

Under Proposed Section 13 D Wife has right to oppose petition on grounds of “Financial Hardship”. It clearly ignores large number of cases where husbands have filed for maintenance under Hindu Marriage Act from wife. It is really unfortunate that a Law even at the stage of proposal has loopholes and do not have provisions to deal with all permutations and combinations of litigation which can arise in a court of law. A law must be made by thinking of all possible scenarios which can arise in present and future. We feel our law makers have miserably failed while drafting this BILL.

5.            Against the intension of the Supreme Court

The proposed BILL is totally against the basic intention of the Supreme Court Judgment “Naveen Kohli vs Neelu Kohli on 21 March, 2006“ in which the observation made was:

“marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent.”

From a plain reading of the above observation it is very clear that the intention of the highest court was to give relief to both the parties out of a dead marriage so as to close all the pending litigation between parties so that they can spend the remaining part of the life peacefully. But unfortunately the proposed BILL is completely contrary to the intention of the Supreme Court observation. The proposed BILL is silent on what will happen to the pending cases like Domestic Violence Act, 498A IPC, Child Custody, CrPC 125 and any other Civil and Criminal cases.

6.            No public debate or opinion was sought

It is really unfortunate that no public opinion or debate was sought before proposing such an important amendment. We the common citizens of this country, were kept in complete dark and came to know about the proposed BILL when the Cabinet approved the proposed BILL and was widely reported in Media on 10^th June 2010. Government did not consider to even obtain the opinion of the NGOs working across India to seek their opinion on the proposed BILL.

7.            BILL do not cater to every section of society

Any amendment to an important Act must be done in such a careful way that it should cater to all the sections of the society. The social system in India has undergone dramatic and sweeping changes in the last decade due to the liberalisation and booming of the economy which has given opportunity to women who are economically well off and financially independent. Just to think that women are only weak and need protection and it is always MEN who are harassing a wife shows complete disconnect of the Law Ministry from the ground realities. We would like to draw your attention to the fact that Women are increasingly doing crime and violence against MEN is being widely reported by Media nowadays. In this context, not allowing husband to break from an abusive and violent wife is injustice and in this context the proposed BILL is a disaster.

8.            No study was done regarding the impact of the BILL

Law ministry has not done any study or research to see the impact of the proposed BILL on the society, burden on Judiciary, Misuse etc. The social impact in India of the irretrievable-breakdown clause should be rigorously studied and watertight safeguards for both genders including children must be put in place before it is introduced.

Prayer

We vide this petition pray that the following amendments be inserted into the MARRIAGE LAWS (AMENDMENT) BILL, 2010

1.            Amend 13D to make the law gender neutral

13D to amended to ensure that both spouses may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to them and that it would in all the circumstances be wrong to dissolve the marriage. The decision of satisfying the financial responsibilities will then depend on the court and this would be decided based on the merits of the case.

2.            Condition of finishing all litigation before divorce is granted

In keeping view of the intention of the Supreme Court the proposed BILL must be amended to make sure that all proposed litigation between the parties are settled before granting divorce under the proposed section.

3.            Fresh process of amendment be started

For the reasons best known to the Law Ministry, no public opinion was obtained from the common citizens of this country before bringing in the necessary amendments to such an important Act. The common man of the country came to know about the amendment when the cabinet cleared the BILL and it got wide publicity in the media.

Yours Sincerely

 Suresh P, XXXXXXXXXXXXXX, Bangalore

Regarding arbitrary arrests under 498A IPC – Rajya Sabha Chairperson

8^th July 2010

Bangalore

To,

Honorable Chairman of the Rajya Sabha,

Office of Chairman, Rajya Sabha

 Parliament House,New Delhi-110001

Subject: Regarding arbitrary arrests of ordinary law-abiding citizens under IPC Sections 498A, 304B, Dowry Prohibition Act and related laws.

About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 14500 members all over India. To know more about us please visit http://www.family-harmony.org / http://www.498a.org.in.

Honorable members of the Parliament have been raising questions in the parliament at regular interval regarding the heavy misuse of IPC Sections 498A, 304B, Dowry Prohibition Act and related laws. Please find some of the questions raised by members of Parliament regarding heavy misuse of women centric laws.

T a b l e – 1

Sl No	Question number	House	Name of  Member	Answered on	Subject
1	1409	RAJYA SABHA	SHRI MOTILAL VORA	01.08.2003	MISUSE OF DOWRY PROHIBITION ACT
2	1610	RAJYA SABHA	SHRI R.S. GAVAI	16.03.2005	INCREASING NUMBER OF FALSE DOWRY CASES
3	2698	RAJYA SABHA	SHRI ABU ASIM AZMI	22.08.2005	AMENDMENTS TO DOWRY PROHIBITION ACT
4	2805	RAJYA SABHA	PROF. RAM DEO BHANDARY	23.08.2006	HARASSMENT DUE TO DOWRY ALLEGATIONS
5	3876	RAJYA SABHA	SHRI MAHENDRA SAHNI	10.05.2007	AMENDMENT IN ANTI DOWRY LAW
6	4501	RAJYA SABHA	SHRI SURENDRA LATH	16.05.2007	MISUSE OF DOWRY PROHIBITION ACTs
7	1474	RAJYA SABHA	SHRI BRIJ BHUSHAN TIWARI	03.12.2007	AMENDMENTS TO DOWRY LAWS
8	1696	RAJYA SABHA	SHRI LALIT KISHORE CHATURVEDI	05.12.2007	PUNISHING PEOPLE FILING FALSE DOWRY RELATED CASES
9	2933	RAJYA SABHA	SHRI KAMAL AKHTAR	21.04.2008	STIFFER ANTI DOWRY LAWS
10	1474	RAJYA SABHA	SHRI BRIJ BHUSHAN TIWARI	03.12.2007	AMENDMENTS TO DOWRY LAWS
11	1073	RAJYA SABHA	SHRI AMAR SINGH	10.03.2008	AMENDMENT OF ANTI DOWRY ACT
12	304	RAJYA SABHA	ABU ASIM AZMI	20.10.2008	MISUSE OF ANTI DOWRY ACT
13	440	LOK SABHA	SHRI SANAT KUMAR	28.08.2001	Dowry Prohibition Act and Domestic
14	1012	LOK SABHA	Shri RAMDAS ATHAWALE	06.03.2007	AMENDMENT IN DOWRY ACT
15	440	LOK SABHA	Shri SANAT KUMAR MANDAL	20.02.2009	DOWRY PROHIBITION ACT AND DOMESTIC VIOLENCE ACT
16	2030	LOK SABHA	Shri DALPAT SINGH PARASTE	30.11.2007	ABUSE OF ANTI-DOWRY LAW
17	193	LOK SABHA	Shri RAGHUVIR SINGH KAUSHAL	16.11.2007	FALSE IMPLICATION IN DOWRY DEATH CASES
18	1181	LOK SABHA	Kunwar REWATI RAMAN SINGH	21.08.2007	COMPLAINTS ON DOWRY BY NRIs
19	382	LOK SABHA	Shri N CHELUVARAYA SWAMY SWAMYGOWDA	20.11.2009	MISUSE OF DOWRY PROHIBITION ACT, 1961S

 

Honorable Supreme Court and various High Courts have observed from time to time that these women centric laws are being highly misuse. Honorable Supreme Court had observed that IPC 498A is being used as “Legal Terror”. Some of the observation of the Supreme Court and various High Courts are compiled below:

T a b l e –  2

Sl No	Court	Case Number/Reported	Year	Between
1	Supreme Court	Writ Petition (C) No. 141 of 2005)	2005	Sushil Kumar Sharma Vs. Union of India (UOI)
2	Supreme Court	Appeal (crl.) 206	2008	Som Mittal Vs Govt. of Karnataka
3	Supreme Court	Appeal (crl.) 1716 of 2007	2007	Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr
4	Supreme Court	2000 (2) JCC (SC) 657: 2000 (5) SCC 207	2000	Kans Raj vs. State of Punjab and others
5	Delhi HC	Crl.A.No.339-41/2005	2010	–
6	Delhi HC	CRL.M.C.7262/2006	2007	–
7	Delhi HC	CRL. R 462/2002	2003	Savitri Devi Versus  Ramesh Chand and Ors.
8	AP HC	A. A. O. No. 1039 of 2001	2002	Saritha Vs R.Ramachandra
9	Punjab & Haryana HC	(1990)2 Rec Cri R 243	1990	Jasbir Kaur vs. State of Haryanas
10	Supreme Court	CriLJ 2993	2000	Kanaraj vs. State of Punjab
11	Karnataka HC	2002 CriLJ 3605	–	State Vs. Srikanth
12	Supreme Court	2002 CriLJ 4124	2002	Mohd. Hoshan vs. State of A.P.
13	Delhi HC	2003 CriLJ 2759	2003	Savitri Devi vs. Ramesh Chand
14	Punjab & Haryana HC	2003 CriLJ 3394	2003	Bhupinder Kaur and others vs. State of Punjab and others
15	Jharkhand HC	2004 CriLJ 2989	2004	Arjun Ram Vs. State of Jharkhand and another
16	Punjab & Haryana HC	RCR (Criminal) 163	2002	Mukesh Rani Vs. State of Haryana
17	Delhi HC	2001 (2) JCC (Delhi) 86	2001	Anu Gill Vs. State & Anrs
18	Supreme Court	AIR 2005 SC 1989	2005	Ramesh & Ors. Vs. State of Tamil Nadu
19	Delhi HC	CHANDER KANTA LAMBA & ORS	–	–
20	ADDITIONAL SESSIONS JUDGE	Revision No. 88/2008/2002	2002	–
21	Punjab & Haryana HC	–	2002	Krishan Jeet Singh vs State Of Haryana
22	Orissa HC	–	2003	Benumadhab Padhi Mohapatra vs State
23	AP HC	Criminal Petition No. 6642 of 2007	2007	Kamireddy Mangamma and others
24	Allahabad HC	CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010	2010	Sanjeev Kumar & Others vs State Of U.P.s

 

The Universal Declaration of Human Rights states:

• Everyone has the right to life, liberty and security of person.
• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
• Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
• No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

 

In blatant violation of all the above rights, thousands of husbands and their families are arbitrarily arrested every year, without evidence or investigation, under IPC Sections 498A, 304B, Dowry Prohibition Act, and related wife-centric laws which presume that the accused are “guilty until proven innocent”.

National Human Rights Commission (NHRC) has noted the misuse of dowry laws, arrest of innocent individuals and the resultant overcrowding of prisons. NHRC has urged the judiciary and law enforcement agencies to take measures against these abuses. High Courts across the country and the Supreme Court have condemned the misuse of dowry laws. The Commissioner of Police, Bangalore had issued standing instructions vide memo to check arbitrary arrests. The DGP, Karnataka has also issued a circular to implement 11 guidelines issued by Honorable Supreme Court of India regarding arrests and detention of Individuals in Cr WP No. 539/1986 and Cr WP No.592/1987. By taking note of the heavy misuse of the 498A IPC, recently on October 20, 2009, Union Ministry of Home Affairs had issued an advisory to all the state Governments and Union Territories. National Commission of Human Rights also has issued guidelines regarding arrests.

Nevertheless, abuse of police powers continues and unnecessary arrests have only been growing in the State of Karnataka. Police routinely enter people’s homes at ungodly hours, take accused men and women into custody, and incarcerate them in the name of “protecting women from cruelty and harassment”. Innocent citizens are illegally detained, humiliated, subjected to mental and physical torture, blackmail and extortion. The honor and reputation of these accused individuals is simultaneously attacked through media trial and unrestrained slander by women’s organizations every day. Thousands of men and women have been driven to suicide due to the trauma of false cases, arrest, prolonged trials and the resultant humiliation and financial troubles they have to endure.

According to statistics published by the National Crime Records Bureau in 2007 alone, an overwhelming 94% of the individuals arrested under IPC Section 498A were found not guilty. A closer look at individual cases under Section 498A reveals that arrests are made by lower cadre police officials without proper justification and only with the intent of terrorizing innocent citizens and extorting money from them under the threat of imprisonment and long-drawn legal battles.

Our numerous pleas to the Government of India to stop arbitrary arrests of citizens under IPC Section 498A have fallen on deaf ears. On the other hand, new laws are always on the anvil (sexual assault, work place harassment, acid attacks etc.) which stress on immediate arrest of men upon mere accusations made by women.

While it is amply clear that under the prevailing circumstances, arrest is inevitable for any man facing allegations of abuse or assault, it is imperative that innocent citizens are prepared to go to jail even if they committed no crime. Ordinary law abiding citizens and their kin should be freed from the fear of jail and the concomitant feelings of humiliation and suffering so that they do not drive themselves into depression, ruin their health or end their own lives.

In spite of All round coverage by Media regarding heavy Misuse of IPC 498A, questions in the parliament by honorable MPs, Critical remarks by various HCs and SC, Observation by NHRC, advisories issued by your ministry from time to time, State Governments are not taking any steps to prevent the heavy misuse of IPC Sections 498A, 304B, Dowry Prohibition Act and related laws. These laws are so biased and dangerous that any innocent can become victim just on a false complaint by a woman. Even celebrities like Pakistani Cricketer Shoaib Malik and Former Union Minister Arjun Singh have not been spared have been falsely implicated under these laws.

 

OUR Demands:

 

• Kindly take Suo Motto notice regarding heavy misuse of 498A IPC and initiate a discussion in the Rajya Sabha to stop the heavy misuse of Gender Biased laws such as 498A, 304B, Dowry Prohibition Act and related laws.
• Advice the Union Government: No arrest before Final Judgment/Order in case of a complaint under 498A, 304B, Dowry Prohibition Act and related laws.
• Advice the Union Government: Implement recommendations of Law Commission and “Malimath committee” to make 498A bailable.
• Advice the Union Government: Bring in amendment to stop arbitrary arrest of elderly persons, children and pregnant sisters.
• Advice the Union Government: Punishment for those filing false cases under 498A, 304B, Dowry Prohibition Act and related laws.
• Advice the Union Government: Bring in amendments to make IPC 498A “Gender Neutral” so that those husbands and in-laws who are harassed can also make complaint under this IPC section.

 

 

P Suresh, President,                                           M Mahesh, General Secretary,

9880141531                                                      9731569970

National Family Harmony Society                         National Family Harmony Society

Regarding arbitrary arrests under 498A IPC – Lok Sabha Speaker

8^th July 2010

Bangalore

To,

Honorable Speaker of the LOK Sabha,

17, Parliament House,New Delhi-110001
Tels. (011) 23017795, 23017914,
 Fax. (011) 23792927

Subject: Regarding arbitrary arrests of ordinary law-abiding citizens under IPC Sections 498A, 304B, Dowry Prohibition Act and related laws.

About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 14500 members all over India. To know more about us please visit http://www.family-harmony.org / http://www.498a.org.in.

Honorable members of the Parliament have been raising questions in the parliament at regular interval regarding the heavy misuse of IPC Sections 498A, 304B, Dowry Prohibition Act and related laws. Please find some of the questions raised by members of Parliament regarding heavy misuse of women centric laws.

T a b l e – 1

Sl No	Question number	House	Name of  Member	Answered on	Subject
1	1409	RAJYA SABHA	SHRI MOTILAL VORA	01.08.2003	MISUSE OF DOWRY PROHIBITION ACT
2	1610	RAJYA SABHA	SHRI R.S. GAVAI	16.03.2005	INCREASING NUMBER OF FALSE DOWRY CASES
3	2698	RAJYA SABHA	SHRI ABU ASIM AZMI	22.08.2005	AMENDMENTS TO DOWRY PROHIBITION ACT
4	2805	RAJYA SABHA	PROF. RAM DEO BHANDARY	23.08.2006	HARASSMENT DUE TO DOWRY ALLEGATIONS
5	3876	RAJYA SABHA	SHRI MAHENDRA SAHNI	10.05.2007	AMENDMENT IN ANTI DOWRY LAW
6	4501	RAJYA SABHA	SHRI SURENDRA LATH	16.05.2007	MISUSE OF DOWRY PROHIBITION ACTs
7	1474	RAJYA SABHA	SHRI BRIJ BHUSHAN TIWARI	03.12.2007	AMENDMENTS TO DOWRY LAWS
8	1696	RAJYA SABHA	SHRI LALIT KISHORE CHATURVEDI	05.12.2007	PUNISHING PEOPLE FILING FALSE DOWRY RELATED CASES
9	2933	RAJYA SABHA	SHRI KAMAL AKHTAR	21.04.2008	STIFFER ANTI DOWRY LAWS
10	1474	RAJYA SABHA	SHRI BRIJ BHUSHAN TIWARI	03.12.2007	AMENDMENTS TO DOWRY LAWS
11	1073	RAJYA SABHA	SHRI AMAR SINGH	10.03.2008	AMENDMENT OF ANTI DOWRY ACT
12	304	RAJYA SABHA	ABU ASIM AZMI	20.10.2008	MISUSE OF ANTI DOWRY ACT
13	440	LOK SABHA	SHRI SANAT KUMAR	28.08.2001	Dowry Prohibition Act and Domestic
14	1012	LOK SABHA	Shri RAMDAS ATHAWALE	06.03.2007	AMENDMENT IN DOWRY ACT
15	440	LOK SABHA	Shri SANAT KUMAR MANDAL	20.02.2009	DOWRY PROHIBITION ACT AND DOMESTIC VIOLENCE ACT
16	2030	LOK SABHA	Shri DALPAT SINGH PARASTE	30.11.2007	ABUSE OF ANTI-DOWRY LAW
17	193	LOK SABHA	Shri RAGHUVIR SINGH KAUSHAL	16.11.2007	FALSE IMPLICATION IN DOWRY DEATH CASES
18	1181	LOK SABHA	Kunwar REWATI RAMAN SINGH	21.08.2007	COMPLAINTS ON DOWRY BY NRIs
19	382	LOK SABHA	Shri N CHELUVARAYA SWAMY SWAMYGOWDA	20.11.2009	MISUSE OF DOWRY PROHIBITION ACT, 1961S

 

Honorable Supreme Court and various High Courts have observed from time to time that these women centric laws are being highly misuse. Honorable Supreme Court had observed that IPC 498A is being used as “Legal Terror”. Some of the observation of the Supreme Court and various High Courts are compiled below:

T a b l e –  2

Sl No	Court	Case Number/Reported	Year	Between
1	Supreme Court	Writ Petition (C) No. 141 of 2005)	2005	Sushil Kumar Sharma Vs. Union of India (UOI)
2	Supreme Court	Appeal (crl.) 206	2008	Som Mittal Vs Govt. of Karnataka
3	Supreme Court	Appeal (crl.) 1716 of 2007	2007	Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr
4	Supreme Court	2000 (2) JCC (SC) 657: 2000 (5) SCC 207	2000	Kans Raj vs. State of Punjab and others
5	Delhi HC	Crl.A.No.339-41/2005	2010	–
6	Delhi HC	CRL.M.C.7262/2006	2007	–
7	Delhi HC	CRL. R 462/2002	2003	Savitri Devi Versus  Ramesh Chand and Ors.
8	AP HC	A. A. O. No. 1039 of 2001	2002	Saritha Vs R.Ramachandra
9	Punjab & Haryana HC	(1990)2 Rec Cri R 243	1990	Jasbir Kaur vs. State of Haryanas
10	Supreme Court	CriLJ 2993	2000	Kanaraj vs. State of Punjab
11	Karnataka HC	2002 CriLJ 3605	–	State Vs. Srikanth
12	Supreme Court	2002 CriLJ 4124	2002	Mohd. Hoshan vs. State of A.P.
13	Delhi HC	2003 CriLJ 2759	2003	Savitri Devi vs. Ramesh Chand
14	Punjab & Haryana HC	2003 CriLJ 3394	2003	Bhupinder Kaur and others vs. State of Punjab and others
15	Jharkhand HC	2004 CriLJ 2989	2004	Arjun Ram Vs. State of Jharkhand and another
16	Punjab & Haryana HC	RCR (Criminal) 163	2002	Mukesh Rani Vs. State of Haryana
17	Delhi HC	2001 (2) JCC (Delhi) 86	2001	Anu Gill Vs. State & Anrs
18	Supreme Court	AIR 2005 SC 1989	2005	Ramesh & Ors. Vs. State of Tamil Nadu
19	Delhi HC	CHANDER KANTA LAMBA & ORS	–	–
20	ADDITIONAL SESSIONS JUDGE	Revision No. 88/2008/2002	2002	–
21	Punjab & Haryana HC	–	2002	Krishan Jeet Singh vs State Of Haryana
22	Orissa HC	–	2003	Benumadhab Padhi Mohapatra vs State
23	AP HC	Criminal Petition No. 6642 of 2007	2007	Kamireddy Mangamma and others
24	Allahabad HC	CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010	2010	Sanjeev Kumar & Others vs State Of U.P.s

 

The Universal Declaration of Human Rights states:

• Everyone has the right to life, liberty and security of person.
• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
• Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
• No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

 

In blatant violation of all the above rights, thousands of husbands and their families are arbitrarily arrested every year, without evidence or investigation, under IPC Sections 498A, 304B, Dowry Prohibition Act, and related wife-centric laws which presume that the accused are “guilty until proven innocent”.

National Human Rights Commission (NHRC) has noted the misuse of dowry laws, arrest of innocent individuals and the resultant overcrowding of prisons. NHRC has urged the judiciary and law enforcement agencies to take measures against these abuses. High Courts across the country and the Supreme Court have condemned the misuse of dowry laws. The Commissioner of Police, Bangalore had issued standing instructions vide memo to check arbitrary arrests. The DGP, Karnataka has also issued a circular to implement 11 guidelines issued by Honorable Supreme Court of India regarding arrests and detention of Individuals in Cr WP No. 539/1986 and Cr WP No.592/1987. By taking note of the heavy misuse of the 498A IPC, recently on October 20, 2009, Union Ministry of Home Affairs had issued an advisory to all the state Governments and Union Territories. National Commission of Human Rights also has issued guidelines regarding arrests.

Nevertheless, abuse of police powers continues and unnecessary arrests have only been growing in the State of Karnataka. Police routinely enter people’s homes at ungodly hours, take accused men and women into custody, and incarcerate them in the name of “protecting women from cruelty and harassment”. Innocent citizens are illegally detained, humiliated, subjected to mental and physical torture, blackmail and extortion. The honor and reputation of these accused individuals is simultaneously attacked through media trial and unrestrained slander by women’s organizations every day. Thousands of men and women have been driven to suicide due to the trauma of false cases, arrest, prolonged trials and the resultant humiliation and financial troubles they have to endure.

According to statistics published by the National Crime Records Bureau in 2007 alone, an overwhelming 94% of the individuals arrested under IPC Section 498A were found not guilty. A closer look at individual cases under Section 498A reveals that arrests are made by lower cadre police officials without proper justification and only with the intent of terrorizing innocent citizens and extorting money from them under the threat of imprisonment and long-drawn legal battles.

Our numerous pleas to the Government of India to stop arbitrary arrests of citizens under IPC Section 498A have fallen on deaf ears. On the other hand, new laws are always on the anvil (sexual assault, work place harassment, acid attacks etc.) which stress on immediate arrest of men upon mere accusations made by women.

While it is amply clear that under the prevailing circumstances, arrest is inevitable for any man facing allegations of abuse or assault, it is imperative that innocent citizens are prepared to go to jail even if they committed no crime. Ordinary law abiding citizens and their kin should be freed from the fear of jail and the concomitant feelings of humiliation and suffering so that they do not drive themselves into depression, ruin their health or end their own lives.

In spite of All round coverage by Media regarding heavy Misuse of IPC 498A, questions in the parliament by honorable MPs, Critical remarks by various HCs and SC, Observation by NHRC, advisories issued by your ministry from time to time, State Governments are not taking any steps to prevent the heavy misuse of IPC Sections 498A, 304B, Dowry Prohibition Act and related laws. These laws are so biased and dangerous that any innocent can become victim just on a false complaint by a woman. Even celebrities like Pakistani Cricketer Shoaib Malik and Former Union Minister Arjun Singh have not been spared have been falsely implicated under these laws.

 

OUR Demands:

 

• Kindly take Suo Motto notice regarding heavy misuse of 498A IPC and initiate a discussion in the LOK Sabha to stop the heavy misuse of Gender Biased laws such as 498A, 304B, Dowry Prohibition Act and related laws.
• Advice the Union Government: No arrest before Final Judgment/Order in case of a complaint under 498A, 304B, Dowry Prohibition Act and related laws.
• Advice the Union Government: Implement recommendations of Law Commission and “Malimath committee” to make 498A bailable.
• Advice the Union Government: Bring in amendment to stop arbitrary arrest of elderly persons, children and pregnant sisters.
• Advice the Union Government: Punishment for those filing false cases under 498A, 304B, Dowry Prohibition Act and related laws.
• Advice the Union Government: Bring in amendments to make IPC 498A “Gender Neutral” so that those husbands and in-laws who are harassed can also make complaint under this IPC section.

 

 

P Suresh, President,                                           M Mahesh, General Secretary,

9880141531                                                      9731569970

National Family Harmony Society                         National Family Harmony Society

Comments/Suggestions/Recommendations on Protection of women from domestic violence rules, 2006

 

Comments/Suggestions/Recommendations on

Protection of women from domestic violence rules, 2006

 

Submitted to

 

Shri Mahesh Tiwari, Jt. Dir., Rajya Sabha Secretariat,

Room No. 528 A, Parliament House Annexe, New Delhi-110001

Tel: No. 23034353, Fax: 23017548; E-mail: mtiwari@sansad.nic.in

 

Respected Sir,

With reference to the press release inviting Comments/Suggestions on Protection of women from domestic violence rules, 2006 (Bill No.: G.S.R. 644(E)) from individuals/ organizations/ institutions/ experts on the working and efficacy of the said Rules, we beseech you to accept our views & suggestions and forward these to the Committee on Subordinate Legislation for considering our suggestions as proposed in here.

We are representing “Family Harmony Society” [www.family-harmony.org] a Non Governmental Organization promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. It is a not-for-profit NGO which consists of patriotic sons & daughters of the soil. Please visit our official website www.498a.org.in and www.family-harmony.org to know more about us, our activities, our organization and our aims/objectives. We have been spearheading a movement against the Legal Weapons of Family Destruction and fighting against Misuse, and abuse of women-biased laws (IPC 498A, Cr.P.C 125 & Domestic Violence Act).

Honestly concerned about the draconian methods of implementation of
the women-biased laws, lack of credentials of implementing agencies and monitoring Courts, and the Tsunamic effect it has on families, we have embarked upon a “Dharmayudh” to save the traditional Indian Family system from extinction.

We believe that certain misandric elements, in the name of pseudo-empowerment of women are all out to destroy the Indian Family System and values with the active connivance of vested interests that are harboring a diabolic design and agenda to destroy our traditional institution of family. These elements are running berserk clamoring for more draconian enactments that are detrimental to the system of marriage and family in addition to the existing laws which are totally anti-men.

Our country is already divided in the name of language, religion and geographic region. But these women-biased laws are bringing in another dimension of division of our society in the name of gender.

As part of our activities we have conducted an on-line survey at http://www.family-harmony.org. The template of the survey is attached herewith as Annexure A. The consolidated result of the survey is attached herewith as Annexure B.  Sir, The Protection of women from domestic violence rules is highly fragile and is vulnerable for heavy misuse. The loop holes in it are more favorable to the complainant woman and these loop holes are being highly misused by some of the intelligent, corrupt and greedy women to gain undue advantage over their respondent husbands. We have done numerous studies, survey and research to prove the same. It is purely a myth to say that the loop holes are being misused by the accused. This statement is not backed up by any data or research or study and is merely based on assumption that all women are innocent.

Because of this blind assumption that only women are victims of domestic violence, many innocent husbands are suffering due to the misuse of the said “Act & Rules” as there is no provision for the suffering husbands to lodge complaint. Thousands of husbands are committing suicides because of family issues and it becomes more lethal when the wife misuses the laws favorable to women. The official data obtained from National Crime Records Bureau [NCRB – http://www.ncrb.nic.in] shows that more men are committing suicides than women year after year. NCRB suicide data from 1996 to 2008 is attached herewith as Annexure C. Over the past few months we have come across many such cases and we have rescued such husbands to come out of their suicidal tendencies.

In order to alleviate the sufferings of the victims of the misuse of the PWDVA, we wish to present the following list of proposals and suggestions for your kind considerations:

1. 1.      Remove the word, “Women” from the name:

Our objections: We object to the give protection only to “Women”. The wordings are such that only “young married wife” can claim protection and relief.

Our reasoning: The Protection of women from domestic violence Act and the Protection of women from domestic violence rules, were framed and legislated based on a myth and assumption that only women under go domestic violence. The parliament has not considered the fact the “softer-sex” i.e., Males are equally vulnerable to domestic violence in the hands of a female or another male. Numerous incidents of domestic violence on males covered by press & media, clearly showing the evidence of violence on males, have been ignored by the parliament. It is not appropriate to assume that all “married young women” in our country are Sita Devis. We should not forget that there are enough number of Surpanakas & Kaikeyis in our country. Numerous incidents of crime committed by women can be found in press & media coverage. Some of these media coverage can be witnessed from our website – http://www.498a.org.in/nwsrm_prsRels.html.

Our Comments/Suggestions: Therefore, we strongly request to make the said Act and the Rules “gender-neutral” by providing protection to MEN as well.

1. 2.     Provide protection to children/Senior citizens:

Our Objections: We object that the said “Rules” has been designed only to provide protection to “married young women”.

Our reasoning: Anybody can be a victim of Domestic violence, including children, infants, teenagers and senior citizens. They can become victim in the hands of their own blood relatives including the mothers of the children and the sons & daughters-in-law of the aged parents. Senior citizens are mostly abused by the daughters-in-law more so by the misuse of these women-biased laws. Even United Nations Organization has recognized that the misuse of IPC 498A or the “Dowry Law” is the biggest form of elder abuse in our country. Such senior citizens in their twilight years should be protected from domestic violence and abuse.

Our Comments/Suggestions: Therefore, we sincerely request to increase the scope of the said Act and the Rules beyond “young married women” to a cover a much larger section of victims irrespective of their age & gender.

1. 3.     Include punishment clause in case of misuse:

Our Objections: The Protection of women from domestic violence Act is one of the most misused laws in our country apart from IPC 498[A].

Our reasoning: We wish to bring your notice that this law is being misused by many of the young, educated & intelligent women with corrupt intentions to satisfy their greed, grudge & fantasies. This law becomes more lethal when misused along with the Dowry Law or IPC 498A. The case under Domestic Violence Act is usually filed just after an FIR U/S 498A is registered for the same cause of action.

Below is a list of few case studies which we came across while talking with some of the victims of the misuse of this law:

1. Sec. 17 of the said Act –
   1. When there is a dispute between the spouses and when the wife files a criminal cases like Dowry Harassment (IPC 498A) against the husband, it becomes impossible for him to continue to live with the wife. And if the wife claims for Right to residence in his house under this section, then husband has to vacate the house along with his aged parent, as it is impractical to even think that an accused and his victim can stay under the same roof that too when the criminal cases are pending. This leads to an unbearable harassment to the husband and his age old parent. Punishing him before beginning the trail is violation of his rights. In some cases the husbands will be re-paying their house loans, but because of the residence orders husband and his parent will be staying outside their houses in spite of paying for house loans, causing a great burden and hardship to them.
   2. If the husband / his parents live in the shared house they have to face harassment of police / face multiple other criminal cases as per the wish of wife’s lawyer. So invariably husband and his old parents have to run away, sometimes without belongings and stay in a rented accommodation.
2. Sec. 18 of the said Act –
   1. The wife can get an order prohibiting the husband from operating his own bank accounts including his salary accounts, making it impossible for him to live. In one case, received by our NGO, wife first used 498A to send the husband & her mother-in-law to jail. As soon as they were released on bail, wife used this section Domestic Violence Act to lock all their bank accounts & properties including the husband’s salary account. When they went home, they were beaten up by the wife & her kin and the husband & the mother-in-law were thrown out of their own house, thus making them penniless and homeless. This is how women are misusing this law resulting in violation of basic rights of the innocent husbands & aged in-laws. Even in the cases of Dowry death the husband will get a chance to prove not guilty, but this new law first punishes the husband and then gives the husband the chance to prove not guilty.
3. Sec. 19 of the said Act –
   1. The wife can get an order prohibiting the husband from entering the shared household. This resulting in, he being thrown out of his own house without any cause. This section becomes lethal when used in tandem with Sec. 18, making the wife to capture the house of the husband and in-laws and throw them out. In many of the cases we have observed that some women acting like goons misuse this law to capture the hard-earned properties of the husband and in-laws, denying their basic rights. Once the wife gets the control over the property she can use that to accommodate her kin or bring-in her boy-friends.
4. Sec. 20 of the said Act –
   1. Wife can file multiple maintenance suits for the same relief, one under this section and another under Cr.P.C 125 or any other provision available just to harass the husband by making him run around different courts. This concept of misusing multiple maintenance provisions has gone beyond bearable limits. We have received numerous complaints from victims who come to us to narrate their grievances and this has prompted us file a Public Interest Litigation, in Hon’ble High Court of Karnataka with Writ Pet. No. 9168/10.
   2. Though this section restricts the maintenance amount to be fair & reasonable, the Hon’ble magistrates in various courts are hardly giving attention to this clause. In a hurry to provide justice to the women they are passing meaningless orders with exorbitant amounts as maintenance without any justification. The high amounts of maintenance passed by the magistrates are being misused by the estranged wives for enrichment and luxury.
5. Some wives gets ex-party orders to get her belongings and come with police protection and take away all the evidences, photos, bank accounts, property documents, gold, cash, credit cards, everything what she knows and what her lawyer suggests along with important house hold items.
6. Since this Act assumes that whatever the women says as true, is highly vulnerable to misuse.

 

The misuse of the Protection of women from domestic violence Act is so rampant that many of the parliamentarians, courts, Chief justices of various High courts have expressed their concerns over the misuse of this Act.

Our Comments/Suggestions: There is an urgent need to introduce a punishment clause in the Protection of women from domestic violence Rules in-line with section 387 to 389 of Indian Penal Code. A new rule should be introduced to protect the rights of the accused by sufficiently compensating the accused. The rule should also make a provision to return back any interim maintenance amount paid during the trial with 10% interest rate.

1. 4.     Remove live-in relationships out of the context of the Rules:

Our Objections: Live-in relationships are like organized prostitution. If we don’t discourage live-in relationships then we will end up promoting polygamy which is not permitted as per law.

Our reasoning: There are no rules defined under Live-in relationships. A man can have any number of Live-in relationships and similarly a woman can also have many Live-in relationships. This is nothing but a different concept of prostitution and nothing but polygamy. The committee needs to look into this issue and ensure that the Protection of women from domestic violence rules does not cover live-in relationships. If the parliamentarian committee ignores this critical issue then that means that the parliament is promoting polygamy & adultery, thus making the sections 494 & 497 of Indian Penal Code as Un-constitutional.

Our Comments/Suggestions: The parliament should clear this confusion. It cannot take different stands on the same issue of polygamy.  Therefore, we propose to remove live-in relationships from the context of this Act OR make sections 494 & 497 of Indian Penal Code as Un-constitutional.

1. 5.     Automatic Divorce decree should be passed on moving an application by the respondent husband:

Our Objections: On mere application of common sense one can conclude that a woman who is claiming domestic violence by her husband cannot be presumed to live with him any longer.

Our reasoning: More so when she is claiming for the reliefs of Protection, Residence, Maintenance orders as per the existing Protection of women from domestic violence rules. When a woman comes forward, complains and claims for these reliefs, then that itself shows that the marriage between husband and wife has broken down and the relationship between them is not cordial and that is why she has come forward to complain. In such a situation it is impossible to think that they can live together again.

In such a case while providing reliefs to the woman, the husband should be granted automatic divorce decree order if he moves an application for the same at appropriate court. Alternatively appropriate amendments should be brought in the said “Rules” so that husband should be able to move application for divorce in front of the same magistrate where the application for Domestic Violence is pending.

The existing Protection of women from domestic violence rules have been designed to provide protection to woman and not to harass the husband. In such a case husband should not be denied of his basic rights of being in a family, cohabiting with a woman and pass on his genes to the next generation, etc.  Even those who are accused under much severe crimes like IPC 302 (murder) or IPC 307 (attempt to murder) will be given a liberty to live freely till he is proven guilty. Many of the accused people in the 1984 riots & Godhra riots are freely living while they are still undergoing their trials. Their basic rights of getting food cooked by their wives, having children with their wives are not being denied. In such a case why a husband accused under Protection of women from domestic violence Act should be punished and should be denied of his basic rights? Since the existing Protection of women from domestic violence rules doesn’t have any punishments like not allowing husband to eat food or not allowing him to have sex, etc., the husband should be made eligible for an immediate automatic divorce decree if he moves an application for the same, so that his basic rights are not denied but fulfilled by any other woman who is happy to live with him along with the reliefs being fulfilled under this Act for the complainant wife. Not doing so results in violation of human rights of the husband none other than by the parliament.

Our Comments/Suggestions: Therefore, we suggest/recommend introducing a new rule for protecting the human rights of the accused husband.

1. 6.     Remove protection officer:

Our Objections: The Protection officer’s role is to only record the Domestic Incident report without any verification or collection of proof. Often this is done after filing the application to the Magistrate and only for the sake of process, nothing more than that.

Our reasoning: The officer will not have any role in investigating the alleged domestic violence, it is only limited to writing down the false statements and filling the report as per the wishes of the wife’s advocate. It is mostly noted that the job of the PO is just to tick mark most of the rows in the DIR on the insistence of the wife.

Our Comments/Suggestions: The role of a Protection officer is absolutely unnecessary and should be removed.

1. 7.     Remove sole testimony:

Our Objections: Because of the rampant misuse of the Protection of women from domestic violence Act the sole testimony of the woman cannot be taken as a sole witness or as occurrence of violence.

Our reasoning: Even the Honorable Supreme Court of India in 14Feburary2010 observed that “in rape cases the testimony of the victim cannot be considered to be the gospel truth, though in normal circumstances her statement has to be relied upon.” So in general to avoid misuse no conclusion should be drawn.

Our Comments/Suggestions: The trial under this Act should be made in compliance to Indian Evidence Act rather than in compliance to Criminal Procedure Code.

1. 8.    Interim Orders:

Our Objections: We object to the delay on the main case proceedings due to the delay on passing of orders on the interim applications.

Our reasoning: Normally it is seen that there is a delay in passing of interim orders and on this ground the considerable delay on the main case. Even though the “Rules” stipulates that preferably the case should be heard and decided within 60 days but this provision is hardly followed by any court.

Our Comments/Suggestions: The magistrates shall ensure that interim orders are passed at the earliest and at the discretion of the officers and shall ensure the trial is not withheld over an indefinite period due to non-execution of interim orders.

 

 

1. 9.     Perjury:

Our Objections: We object that due to various loopholes in the “Act & the Rules” the spouse are trading wild and false allegations at each other.

Our reasoning: As there is no provision of punishment in the “Act & the Rules” hence there is no fear in the mind of the litigants and they are indulging in leveling baseless and wild allegations against each other. This is deplorable and results in considerable delay of the proceedings.

Our Comments/Suggestions:

The magistrates shall order perjury and contempt proceedings in respect of exaggerated or false allegation in respect of domestic violence, cruelty when such allegations are proved to be false.  And spouses making false allegations are to be punished. 

10.Enforce strict adherence to section 6 – Application to magistrate:

Our Objections: If a defined rule is not followed then that leaves a chance for misuse. This rule has defined a very neat application form to be addressed to the Magistrate. As per this rule the complainant woman is supposed to fill-in the details of the breakup of the monetary reliefs that she is claiming <<Please refer page.67 in the rules PDF file under the heading – “Monetary reliefs under section 20”>>.

Our reasoning: But the complainant women do not follow this rule. This leads to claiming of exorbitant amounts of maintenance to the tune of lakhs of rupees. Claiming exorbitant amounts of maintenance is nothing but misusing the provision which is meant to protect women. It is impossible to believe that with the current economic conditions prevailing in our country that a woman would need lakhs of rupees of money for basic necessities like food, cloth, and medicines. We have seen cases where the maintenance amounts have been claimed in the range of 25,000/-, 50,000/- to 200,000/- per month. Even the Honorable magistrates, Honorable High court judges and “Honorable members of parliament” are not getting that much amount of money as their salaries. Maintenance includes only the basic necessities i.e., food, cloth, medicines & shelter. In any city in our country these basic necessities will not cost thousands & lakhs of rupees per month. The magistrates are supposed to pass orders ONLY for these basic necessities and other house hold expenses which should never run into thousands of rupees as claimed in some cases. The Act itself mandates that the maintenance amounts should be fair, just & reasonable. But this is hardly followed.

Our Comments/Suggestions: We therefore pray for strict adherence to this rule, else the application should be rejected if there is not breakup given for the monetary relief claimed.

11.   Change in wordings of Form III (Please refer section 7 – Affidavit for ex parte orders):

Our Objections: We object to the way false cases are being filed in the court without any fear.

Our reasoning: We feel that courts of this country are nothing but temple of justice but unfortunately there is a flood of petitions in front of the courts most of which are false and are being filed with ulterior motives.

Our Comments/Suggestions:

In order to stop the misuse of this Act as a black mailing tool, we propose to add the following two statements into the Form-III as points 12 & 13:

12. I have read and understood the facts & allegations mentioned herein and the main application and I confirm that they are true. I confirm that I swear and stand by the facts & allegations that I have made. I understand that making this application will result in hampering of my relation with the accused/respondents and I may be at risk of losing the relationship with him/them permanently.

12 (B). <<This has to be included only if the complainant woman is a wife of any of the accused/respondents>> I understand that making this application will result in hampering of my relation with my husband whom I made as accused/respondent in this case. And the marriage between us will be declared dead & broken down if my husband moves an application praying for automatic divorce decree.

13. I understand that if the facts & allegations that I made under this sworn affidavit proved to be false then I will undergo trial for the criminal cases that might be initiated on me under the sections 387 to 389 of Indian Penal Code and/or I will undergo trial under the perjury & contempt proceedings.

12. Change in wordings of Form II: <<Please put this is braces “Please refer section 6 – Application to magistrate”>>

Our Objections: We object to the way false cases are being filed in the court without any fear.

Our reasoning: We feel that courts of this country are nothing but temple of justice but unfortunately there is a flood of petitions in front of the courts most of which are false and are being filed with ulterior motives.

Our Comments/Suggestions:

In order to stop the misuse of this Act as a black mailing tool, we propose to add the following two statements into the Form-II:

1. I have read and understood the facts & allegations mentioned herein and I confirm that they are true. I confirm that I swear and stand by the facts & allegations that I have made. I understand that making this application will result in hampering of my relation with the accused/respondents and I may be at risk of losing the relationship with him/them permanently.

1 (B). <<This has to be included only if the complainant woman is a wife of any of the accused/respondents>> I understand that making this application will result in hampering of my relation with my husband whom I made as accused/respondent in this case. And the marriage between us will be declared dead & broken down if my husband moves an application praying for automatic divorce decree.

2. I understand that if the facts & allegations that I made herein proved to be false then I will undergo trial for the criminal cases that might be initiated on me under the sections 387 to 389 of Indian Penal Code and/or I will also undergo trial under the perjury & contempt proceedings.

13. Enforce camera recording of the counseling under section 14 – Counselors:

Our Objections: We strongly deplore to the use of the said “Act” being used as a blackmail tool.

Our reasoning: The said “Act” must be used for the needy women rather being misused by greedy women. In traditional cases of misuse, women will insist on registering the case & punishing the accused/respondent during counseling/mediation. But later they deny that they did not insist on registering the case or that they registered in a fit of rage.

Our Comments/Suggestions: In order to stop this particular misuse of this Act as a black mailing tool, we propose to do camera recording of the counseling/mediation done by the counselors if the accused/respondents wishes so. The counselor to give the certified copy of this recoding to the complainant woman, accused/respondents and magistrate. The charge for these proceedings can be put on the accused/respondents.

14. Enforce mandatory accommodation in shelter homes under section 16 – Shelter Homes:

Our Objections: Shelter homes must be provided for the affected victims.

Our reasoning: When a woman undergoes domestic violence it may not be possible for her to continue to live with the accused/respondent.

Our Comments/Suggestions: So, in order to protect these women, the women should be mandatorily accommodated in Govt. sponsored Shelter Homes. The cost for the accommodation may be put on the accused/respondents. The cost will be for her maintenance as per the prevailing rates as declared by the Government.

We submit that we are considering filing a Public Interest Litigation to make this Act, in the current form, as unconstitutional in the Hon’ble High Court of Karnataka. For this we have been doing a study on how this Act is being misused. Please find the enclosed Annexure for your kind perusal.

We submit you to please consider our suggestions and please consider us to appear before the Committee for explaining our sufferings by the way of oral pleadings.

We submit that our suggestions are just and reasonable and in the event of non-implementation of our suggestions, we would be constrained to go to the streets with Dharnas, Public Fasting and resort to other democratic means of protests. Please save the family and thereby save our great Nation to retain India a “Vasudeva Kutumbaham”.

Jai Hind!! With profound respects,

Suresh P                                                                                            Mahesh M

President                                                                                           General Secretary