DV rules – Email version 1

From , Date :-

To,

Shri Mahesh Tiwari, (mtiwari@sansad.nic.in)

Joint Director,

Rajya Sabha Secretariat, Room No. 528 A,

Parliament House Annexe,

New Delhi-110001

Honorable Members of the Committee,

Sub: Memorandum on DV Rules and Act

In response to the Advertisement published in the Times of India on 29^th March 2010, inviting for comments within one month of the publication of the advertisement, I wish to provide comments and suggestions on the protection from Domestic Violence Rules 2006 framed to implement the Protection of Women from Domestic Violence Act, 2005.

Below are just some of the strategies that have been employed in India to disguise the truth and magnitude of Domestic Violence Claims

1. Make evidence-free claims:- This is the most common way the truth is distorted. Perhaps the most common example is, “Men are overwhelmingly the perpetrators of domestic violence,” an assertion routinely made without evidence or proof.

2. Use definitional ruses (increasing the Ambit of Domestic Violence):- Some persons use studies on verbal disagreements and arguments to claim the study results are indicative of physical violence. In India Domestic Violence ambit has been expanded so wide that it encompasses physical , mental , emotional , physiological violence and data is gathered using all these factors consecutively a man may be convixted of DV even he and his wife live in different countries.

3. Collect information only on male-on-female violence:- This is a commonly-employed strategy. For example, the World Health Organization did an international survey on domestic violence, but neglected to interview men or to inquire about female-initiated aggression.

Example :- In National Family Health Survey -3, spousal physical and sexual violence was measured using the following set of questions (seven sets of acts of physical violence and two of sexual violence). The women were asked the following question

Women Questionnaire:

(Does/did) your (last) husband ever do any of the following things to you:

a) Slap you?

b) Twist your arm or pull your hair?

c) Push you, shake you, or throw something at you?

d) Punch you with his fist or with something that could hurt you?

e) Kick you, drag you or beat you up?

f) Try to choke you or burn you on purpose?

g) Threaten or attack you with a knife, gun, or any other weapon?

h) Physically force you to have sexual intercourse with him even when you did not want to?

i) Force you to perform any sexual acts you did not want to?

NHFS-3 concluded that nearly 37 percent married women have experienced some form of physical or sexual violence by their husband.

However NHFS-3 also strangely concluded that “only one percent of married women have ever initiated violence against their husband”.

And this strange conclusion was drawn without even asking even a single question to the men to measure the DV on Men by Women.

4. Distort / Ignore / Alter data on female-perpetrated violence :-

This is done by framing questions in such a way where even if the female answer to question is yes it looks like a offence committed by the male

Example:-

The NHFS-3 asked Women the below Question:

Have you ever hit, slapped, kicked, or done anything else to physically hurt your (last) Husband / partner at times when he was not already beating or physically hurting you?

The biased and cooked question patterns itself depict the extremely poor and dubious quality of the Domestic Violence statistics/surveys that we have done so far and also clearly show how there is a clear effort being made to increase the domestic violence number by hook or crook.

What Peer Reviewed Global Surveys say about Domestic Violence

We would now request the members of the committee to go through another Domestic Violence Study conducted by MA Strauss. The report is not only completely unbiased but has done the survey for over 32 countries including India. We also have references of over 250 scholarly studies show women are at least as likely as men to engage in partner aggression and that partner violence is often mutual.

The MA Strauss report is attached as Annexure -4

The report in Page 261 quotes the prevalence of bi-directionality of severe physical violence and has the numbers for 32 countries. The numbers for India are as below.

11.9% of Indian couples face domestic violence (slap, shove, grab, throw etc )

Column A :- 15.3 % of times only the Male is violent

Column B :- 23.0% of times only the Female is violent

Column C :- 61.5% of times both are violent

The data for India shows that in 23% of the times the Female is violent and 61.5% of the time both are violent. Then why have we completely ignored the data in columns B and C and only cherry picked the data in column A to frame laws ? Is this not a flaw in the law making process itself to cherry pick statistics and then frame laws.

But what is the effect of framing laws on such studies like NHFS-3.

Unconstitutional DV Rules, which requires immediate amendments

The following changes should be made in the Domestic Violence Rules.

Rule 6 [5], 12(4) and 14 of the Protection of Women from Domestic Violence Rules, 2006 are downright unconstitutional, violate Articles 14, 15, 19 and 21 of the constitution of India, and not in consonance with the International covenants such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, as are necessary in the present circumstances of the case, award costs and render justice. Rule 5 and 8 are heavily biased against men and their family. All rules mentioned here either need to be struck down or amended to make them “balanced and neutral”.

Comments on Unconstitutional Rules

Rule 4(2), concerning the Domestic Incident Report should be mandatory signed by the women/applicant herself, in the form of an Affidavit. There should be a misuse clause, stating that she would be punished, if during trial, it is found that the complaint are false, made with a malafide intention. Currently there is no punishment inherent within the Act and Rule for misusing it

Rule 5 :- Domestic Incidence reports

F.I.Rs. are entered in a pre-printed consecutively numbered paged in a bound book and the copy of F.I.R. gets transmitted to the magistrate to avoid manipulations. On the other hand D.I.Rs. does not contain any such safeguards which promote ante-dating or ante-timing as well as other manipulations.

Rule 6(5) under the D.V. Act states that the applications under section 12
shall be dealt with the orders enforced in the same manner laid down under
section 125 of the Criminal Procedure Code, 1973. This is utterly wrong as this is a Civil Law and thus the orders should not be enforced as in CrPC-125, but should be as like any other Civil Law. Moreover, to avoid multiple proceedings, the women should be allowed to file ANY one of Sec 24, CrPC-125 or DV Act, as the reliefs sought under all the three above are the same. This suggestion would also simultaneously help in reducing the large number of pending cases in Courts, by reducing multiple suits and thus helping both the applicant and the respondent.

Rule 12(2)(a) of the rules of servicing of Notice in the office should be amended. The respondent may loose his job which would cause financial harm both to the respondent as well as the applicant, and would not lead to family harmony.

Sec 32 R/W Rule 12(4) lays down that the offence of breach of protection order by the respondent shall be a cognizable and a non-bailable offence and the court may conclude on the sole testimony of the aggrieved person that the offence has been committed. After the protection order is passed, even if the aggrieved person invites him to meet her, he should restrain himself from doing so. If he obliges to her request, he will be framed/charged under Sec. 32. The Act just says women will be protected at any cost and advices man not to believe his wife. Sec 32(2) states that based on the sole testimony of the aggrieved person, the court may conclude that an offence under sub section (1) of section 31 has been committed by the accused. The court jumps to conclusions without hearing the so-called accused, which is unconstitutional and against the principles of natural justice. Even in a murder case the accused will be heard first and then only sent to imprisonment. But here this is contrary to the general law and rules of justice. There is every possibility and likelihood that a woman lodge false allegations and complaints to the police and thereby forcing the courts to pass an exparte order by invoking the provisions of sections 31 and 32. This means on the sole testimony of my wife, the court may come to the wrong conclusion that an offence under sub section (1) of section 31 has been committed and could pass orders detrimental to his interest. Any penalty or penal provision in any Act should have a fixed period. The maintenance has to be paid for how long? Even life sentence is for a fixed time. In the light of the above submissions, the provision of the section has got to be struck down, if not properly amended. Thus the DV Act and Rules should be immediately amended as it is VIOLATING the presumption of innocence and the principles of fair trial guaranteed under Articles 20 and 21 of the Constitution of India, in addition to defying the Universal Declaration of Human Rights.

Rule 14(5) states that “The Respondent shall not be allowed to plea any counter-justification the alleged act of domestic violence in counseling the fact that and any justification for the act of domestic violence by respondent is not allowed to be part of the counseling proceeding should be made known to the respondent before the proceeding begins” : Not allowing the respondent to make counter-justification or arguments in his defense turns this entire Act and trial into a Farce and a draconian exercise wherein the respondent is made to stand as a guinea-pig only to accept whatever befalls him. Is this natural justice? The Universal Declaration of Human Rights proclaims that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.”  However, Rule 14(3) & 14(5) of the DV Rules presumes that the accused man is guilty until proven innocent, thus violating the presumption of innocence and the principles of fair trial guaranteed under Articles 20 and 21 of the Constitution of India, in addition to defying the Universal Declaration of Human Rights.

Domestic violence laws are bad for men because they strip due process protections from the falsely-accused, deny services to male victims, and stereotype men as batterers. The effect of our nation’s DV laws is to turn men into a new social under-class. Off late myths have been disseminated on Domestic Violence by well-known political figures, government agencies, the mass media, and advocacy groups.

I request the honorable committee to immediately initiate steps to

a) Insert a Misuse clause into the act to prevent Misuse and reduce judicial pendency .

b) Make the act gender neutral so that the courts can decide which side actually committed the domestic violence .

Thanks,