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Shri Mahesh Tiwari, (firstname.lastname@example.org)
Rajya Sabha Secretariat, Room No. 528 A,
Parliament House Annexe,
Honourable Shri Mahesh Tiwari,
Sub :- Comments and Suggestions on DV Rules 2006
The undersigned would like to use the opportunity to provide comments and suggestions on the protection from Domestic Violence Rules 2006 [called “Rule” from hereinafter] framed to implement the Protection of Women from Domestic Violence Act, 2005, as has been invited by the Committee on Subordinate legislation in the Rajya Sabha.
The Domestic Violence Act 2005 and Domestic Violence Rules 2006 are imbalanced, harsh and one-sided, with a massive scope of misuse of the Act by unscrupulous women. Her Excellency, the President of India, Mrs Pratibha Patil as well as the Chief Justice of India has repeatedly warned on the misuse of such, gender biased Laws. The Ministry of Law and Justice, has repeatedly said that it is “essential to check false and malicious complaints being filed and giving false evidence”. The Law Ministry just like ordinary citizenry does not want to “lead to situations similar to those being faced in Domestic Violence Cases” and wants a Law to be “balanced, neutral and gender-equal”. The undersigned also echoes their views and want the Domestic Violence Act, to be gender-equal with an insertion of a MISUSE CLAUSE, inherent in the Act, to arrest its massive current misuse, as has already been done in other gender biased laws like the proposed Sexual Harassment at Workplace Act.
Unconstitutional and Biased Rules, requiring immediate amendments
Rule 6 , 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, being gender biased, not in consonance with the International covenants such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, as are necessary in the present circumstances of the case, award costs and render justice. 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 (1) states that “Any person who has reason to believe that an act of domestic violence is being committed or is ‘ likely to be committed ‘ “ – Who is that “any person“? Anyone walking on the road? A neighbour who has had previous enmity, disharmony or hostility with the husband due to any reason or dispute? Surely the neighbour can exact revenge using this loophole. Coming to “likely to be committed” – Does anyone have access to predictions or clairvoyance that such an act is likely to be committed? This Rule needs immediate amendment to make it sane, balance and neutral, with a MISUSE Clause, to arrest its massive present misuse.
Rule 4(2), concerning the Domestic Incident Report should be mandatory signed by the women/complainant herself. 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.
Rule 5 :- Domestic Incidence reports
This Rule permits lodging of D.I.R. either with the protection officer or with the service provider. This strictly speaking may not be a desirable state of affairs, inasmuch as lodging of D.I.R. with the protection officer would render the service provider purposeless. Whereas F.I.Rs. are entered in a pre-printed consecutively numbered paged in a bound book and the copy of F.I.R. will be transmitted to the magistrate to avoid manipulations, whereas D.I.Rs. does not contain any such safeguards which promotes ante-dating or ante-timing as well as other manipulations. This kind of senseless formats could very well be used to blackmail both the parties by corrupt persons etc. to extract/extort money or for personal gains. This Rule should be immediately amended so that recording of DIRs are done in the very same manner of FIRs, to prevent its misuse.
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 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 8:- Duties and Functions of the Protection Officer
· When all are equal in the eyes of law, it is impossible to accept this provision as constitutional because of the bias. Discrimination includes any type of distinction, exclusion or restriction of any person on the basis of sex.
· I submit therefore while looking in to the physical, verbal, emotional, psychological, economic abuse, the law should provide powers to the protection officer to get assistance of a recognized expert medical practitioner as to whether physical abuse of any kind has occurred as well as a recognized expert psychiatrist report and opinion as to whether any non-physical abuse like emotional, mental, psychological abuse has taken place. The duties and functions as prescribed under the Statute imply that the said Officer has to only protect the women and assist them in the procedure. A Statute cannot direct the concerned authority to protect and assist a particular gender, which is against the principle of legal balance. The Statute provides for a Domestic Incident Report (D.I.R.) to be prepared either by the Protection Officer under Section 9 (b) and forward it to the Magistrate and to the service providers and the police officer of the local limits; whereas under Section 10 (2) (a), a service provider has the power to record the D.I.R. if the aggrieved person so desires and forward a copy to the Magistrate and to the protection officer having jurisdiction. Making of a D.I.R to the Magistrate under Section 9(1)(b) is distinct from recording the D.I.R. under Section 10 (2) (a). Rule 5 permits lodging of D.I.R. either with the protection officer or with the service provider. This strictly speaking may not be a desirable state of affairs, in as much as lodging of D.I.R. with the protection officer would render the service provider purposeless.
· The Protection Officer/Service Provider only remains as a person of authority to assist the aggrieved person without powers for investigation. Therefore any report of domestic violence is to be presumed to be true for consideration by the Magistrate which is against the principles of natural justice. This requires immediate amendment.
· The DV Act assumes that women are always honest victims, and, hence, requiring proof of their claims is unnecessary. Under this Act, the sole testimony of the so-called aggrieved person is enough for the court to conclude that an offence has been committed. This baseless assumption turns the Act into a weapon in the hands of abusive women to perpetrate violence against men and also misuse the law. A MISUSE Clause needs to be incorporated in Rules, which would act as a strong deterrent and prevent its misuse.
Rule 9 states that ” receives reliable information through email or telephone call or the like that an act of domestic violence is happening or likely to happen….” Surely we have seen many hoax calls in our 60 years of Free India. An amendment should be made in the Rules, such that in case in trial it is found that such information was false and malicious, there would be heavy punishment for wasting the Hon’ble Courts precious time.
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 Complainant, and would not lead to family harmony.
Section 32 r/w Rule 12(4) :- This section lays down that the offence of breach of protection order by the respondent shall be a cognizable and a non-bailable offence and the court may conclude on the sole testimony of the aggrieved person that the offence has been committed. If this has to be construed as a cognizable one, then it goes without saying that it is common to both man and woman. It has to be gender neutral one. There are women prisoners too, to ascertain the fact that women are also committing crimes. A woman can be an equal criminal as a man if not more. It is highly dangerous in the present scenario to get married. No man would like to marry, if he reads the Act as a whole. Instead of protecting a family which is a basic block of the society, the Government interferes and teaches how to doubt a person and the ways to trap a person to bring him under the purview of the Act. After the protection order is passed, even if the aggrieved person invites him to meet her, he should restrain himself from doing so. If he obliges to her request, he will be framed/charged under Sec. 32. The Act just says women will be protected at any cost and advices man not to believe his wife. Sec 32(2) states that based on the sole testimony of the aggrieved person, the court may conclude that an offence under sub section (1) of section 31 has been committed by the accused. The court jumps to conclusions without hearing the so-called accused, which is unconstitutional and against the principles of natural justice. Even in a murder case the accused will be heard first and then only sent to imprisonment. But here this is contrary to the general law and
rules of justice. An allegation suffices for proof of evidence. Hearsay is taken
for gospel. There is every possibility and likelihood that a woman lodge false allegations and complaints to the police and thereby forcing the courts to pass an ex-parte order by invoking the provisions of sections 31 and 32. This means on the sole testimony of my wife, the court may come to the wrong conclusion that an offence under sub section (1) of section 31 has been committed by me and could pass orders detrimental to my interest. Any penalty or penal provision in any Act should have a fixed period. The maintenance has to be paid for how long? Even life sentence is for a fixed time. But a married man suffers while living with his wife, while she leaves him and also after she left him. It has become possible now, for a perfectly innocent man, who has done nothing outside the law, to be sent to prison on one person’s unsubstantiated word. In the light of the above submissions, the provision of the section has got to be struck down, if not properly amended.
Rule 14(3): The said provision proceeds on the assumption that the respondent
has already committed the offence and it is not necessary to prove the veracity
of the allegation and in the undertaking, admission of guilt is implicit. Again ….
Rule 14 (5) states that “The Respondent shall not be allowed to plea any counter-justification the alleged act of domestic violence in counselling the fact that and any justification for the act of domestic violence by respondent is not allowed to be part of the counselling proceeding should be made known to the respondent before the proceeding begins” : Not allowing the respondent to make counter-justification or arguments in his defence 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. This Rule should be amended, to make it “balance and neutral” as per Memo of Ministry of Law and Justice dated 3/3/9, with a MISUSE Clause, to arrest its massive present misuse..
Judicial backlog due to false cases
Even if the Govt turns a blind eye towards the suffering of millions of people who are victims of misuse of marital laws it cannot deny that the Indian Judiciary is creaking under the load of millions of cases in India a majority of which are marital cases. The Honourable Law minister in his blueprint for Judicial reforms titled “National Mission For Delivery of Justice and legal reform” in Page 16 has identified Matrimonial cases and 498a( anti Dowry) cases as the number 1 and number 2 bottle necks in terms of severity which are today choking the dockets of magisterial and specialized courts. The centre for social research also stated that 98% of all 498A cases are false to begin with. In this already bleak scenario does it make sense to make additional laws which are so clumsily drafted and just asking to be misused to further increase the judicial burden? Why should the Indian tax payer be burdened with cost of false cases filed by women trying to settle scores with their Male partners?
I would thereby request Committee on Subordinate legislation to immediately bring amendments in the DV Rules of 2006 and close the lacunae as has been highlighted by the aforementioned comments to bring in a balanced, neutral law to check false and malicious complaints being filed, with the insertion of a Misuse Clause in it.