Saturday, 20 October 2012

498A - Legal Terrorism

If the wife states that her husband and the relatives have treated her with ‘cruelty’, whether physical or mental, then a case can be registered under Section 498A of IPC. No evidence is necessary for filing charges. A mere statement by the wife is enough to get her husband and relatives arrested and thrown behind the bars. Since this section is non-bailable getting a bail is not always easy.

Even if there is no evidence, the husband and the relatives have to keep appearing in the court for several years before they get acquitted of the false charges. Senior citizens and children have been arrested under this section. Even if a person gets cleared by the court, still the psychological, emotional and mental trauma takes a toll on everyone. Not to mention it destroys the reputation of all the accused. In a good percentage of cases it has been observed that a good monetary compensation has been extracted from the husband at the time of settlement for mutual divorce in exchange for dropping the charges under Section 498A. In one of its judgements Supreme Court of India has pointed out that “legal terrorism” can be carried out under this section.

Gender Biased and ill framed Domestic Violence Act

Protection of Women from Domestic Violence Act, 2005 came into force on 26 October, 2006 for providing protection to wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives.

Under this act, the term "domestic relationship" includes relationship in the nature of marriage, which refers to those relationships where there is no marriage between the parties, in the sense of solemnization of a marriage under any law. The following categories of women are intended to be covered under 'relationship in the nature of marriage:
(a) Women, whose marriages are void or voidable under the law, as apart from the legal invalidity of the marriage, the relationship satisfies all other criterion.
(b) Live-in relationship - Women who are living in a shared household in a conjugal relationship without contracting marriage.
(c) Common law marriages- when a couple has been cohabiting for a number of years and have held themselves out to the world as being husband and wife.
It is beyond comprehension that under this act a woman in a live-in relationship has been provided the right to reside in the same household whether or not she has any right, title or
beneficial interest in the same. How can a woman in a live-in relationship has the same right as a married woman. It is a deliberate attempt to dilute the institution of marriage.

A woman can file a complaint against any adult male perpetrator [Section 2(q)] under this act. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband / male partner who have reportedly perpetrated the violence. It is possible to have orders can be passed against the female relatives of the husband. However, relief of dispossession against a female relative cannot be granted according to the Section 19(1) which states that no order under Section 19(1) (b) directing the respondent to remove himself from the shared household can be passed against any person who is a woman. The aggrieved woman may obtain a protection order against the female relatives of the husband or the male partners.

Double standards

A mother-in-law cannot file an application against her daughter-in-law (Section 2 (q)). However in cases where a mother-in-law is facing violence at the hands of her daughter-in-law she can not ask for removal of the daughter-in-law from the shared household. This act is essentially anti-male in nature and can be applied against males only. It cannot be applied against any female. Even Supreme Court has mentioned that the definition of `shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting (D.Velusamy vs D.Patchaiammal, Supreme Court, 21 October, 2010)

This act provides a windfall of reliefs like protection order, residential order, monetary relief etc. to the female petitioner against a male petitioner. The proof will be tested on the balance of probabilities and proof beyond reasonable doubt is not required. Only the statement of the woman and circumstantial evidence is considered to arrive at a conclusion on the facts of he case. Even a man can evicted out of his own residence without having adequate right to defend himself.

Insults, ridicule, humiliation, name calling by a male against a female have been termed as verbal and emotional abuse. Even though females are well capable of doing the same against male, such actions against a male would not be termed as verbal and emotional abuse and there is no provision for relief for the males facing such abuse under this law.

If a male deprives a female from household necessities or payment of rental related to the shared household then it would amount to economic abuse. It does not consider that the man may be having a severe financial crisis. However, it does not consider it to be an economic abuse if a female takes away the money from a male without his permission. It is absolutely one-sided.

Even disposal of household effects in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship has been considered as an economic abuse. So if a household item had been purchased by the husband and he was compelled to sell it for adverse financial condition, then it can be considered as a economic abuse. However, if the wife sells any household item even if it was not purchased by her, then the same would not be considered as any kind of abuse.

Under this act a wife can restrain a husband, who creates nuisance, from entering their home, irrespective of who owns the house (Mr.Ishpal Singh Kahai v/s. Mrs.Ramanjeet Kahai, Bombay High Court, 23rd March 2011). This act places a woman’s personal rights over proprietary interest. However if the wife creates nuisance or sleeps with another man then her husband would not be able to restrain her from entering their home. The rights of the wife are only upheld under this act disregarding then interests or well being of the husband.

A bare perusal of Section 3 of the Act clearly reveals that the law recognizes the right of women to the finances of the husband, as well as, economic right of having the Stridhan and the right to be maintained by the husband (Om Prakash Vs. State of Rajasthan & Anr. Rajasthan High Court, Jaipur Bench, 29 April, 2011). However, no such right of husband to the finances of the wife has been recognized by this act.

Unreasonable and unfair clauses

The residential orders that can be passed under this act can restrain the male from renting out or selling his own property. It can also evict the male from his own house. How can a man be derived of his legitimate rights over his own property? How fair is it to evict a man from his own home? If this kind of situation continues then men with property would not marry and go for one-night stands.

Also there is ample scope to misuse the provision for residential order under this act. Any woman can start live-in relationship with a man. Then she can file for a residential order under Domestic Violence Act and evict the man from his own house and secure her right to reside in the property owned by the man. Any man sharing a household with woman is at a risk of being dispossessed of his property under this act.

The monetary relief under this act is meant to be consistent with the standards of living of the female. But if a wife is not living with her husband and not performing any household duties for her husband then why should she be entitled to monetary relief to maintain same standard of living at the cost of hard earned money of her husband? She is only getting privileges with any kind of responsibilities.

Providing custody orders in favour of wife through this act without proper trial would devastate the husband emotionally. The child would also loose access to his father. This is the beginning of the breaking up of traditional Indian families.

The Act does not make any exception in favour of those who are physically challenged. The Act recognizes the right of a women to be maintained even from a physically challenged husband. Moreover, poverty is not a defence against the right of a woman (Om Prakash Vs. State of Rajasthan & Anr. Rajasthan High Court, Jaipur Bench, 29 April, 2011).

Provision for conviction without fair trial

Under Section 32 of this act for an alleged violation of Protection Order the offence is cognizable and non bailable. Under the sole testimony of a female the court may conclude that the offence has taken place and can sentence the man for imprisonment or fine or both. No other proof is required. If the female says that a violation of Protection Order has taken place, then the court would consider that a violation of Protection Order has taken place. This means the man might not get a chance to defend himself in the Court of Law. This is absolutely a draconian provision under this act. What would happen if the female lies in front of the court? There is no provision to cross examine her statement. There must be adequate checks and balances within every act.

Problem with CrPC 125

Under CrPC 125 an order can be passed against a man having sufficient means to provide maintenance for the wife, who is unable to maintain herself.

First this section consider a "divorced wife" as a wife. How can a divorced wife be a wife defied all rational reasoning.

Secondly there is no upper limit provided in this section for maintenance. It does not take duration of the marriage for determining the quantum of maintenance. This maintenance amount should only be enough to provide the basic necessities for the wife.

Thirdly if the husband fails to pay the monthly maintenance amount he is liable to be imprisoned. A man can go through financial crisis and due to adverse financial condition may not be in a position to pay the amount. This section does not provide any relief to the husband during his days of financial hardship.

Fourthly under CrPC 125, an able bodied husband has been held liable to maintain his wife. However it does not consider that it is a responsibility of a able bodied wife to maintain at least herself !!! This is inspite of the fact men and women are considered to be equal as per Indian constitution.

CrPC 125 needs to be changed.

Presumed to be guilty under IPC Section 304B - Dowry Death

One of the dangerous provisions of IPC is Section 304B. If the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage then her husband or relative shall be deemed to have caused her death. To attract the provisions of section 304B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand of dowry"; (Prema S. Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11). Such death shall be called “dowry death”, punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Any common sense would led to believe that  the husband or any of his relative could be guilty of the offence only if he or she directly participated in the actual commission of the offence. In contrary, Section 304B of the Indian Penal Code would be applicable if cruelty or harassment was inflicted by the husband on any of his relative for, or in connection with demand for dowry, immediately preceding the death by bodily injury or by burning. In short she should have died in abnormal circumstances within seven years of the marriage. In such circumstances the husband or the relative, as the case may be, will be deemed to have caused her death and will be liable to punishment (Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cr LJ 1666).

This is very dangerous provision in IPC which could implicate a husband or relative to dowry death by associating some stray incidents of cruelty with unnatural death. Under this section the accused are presumed to be guilty of murder in contrary to the basic principle of law that anyone is innocent unless proved guilty. It has been held by the lawmakers that in dowry death cases and in most of such offences direct evidence is hardly available and hence they have enacted a rule of presumption on the basis of which charges can be framed for murder. A person framed under this section would hardly get proper chance to defend himself. Even without any proof that the husband or relative has caused the death they can be branded by the court as murderer.

Marriage Laws (Amendment) Act, 2010

Marriage Laws (Amendment) Act, 2010 seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 by introducing Irretrievable Breakdown of Marriage as a Ground of Divorce, subjected to the condition that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. Furthermore it states that a wife has right to 50% of the immovable residential property owned by her husband regardless of whether the property was acquired before or during the marriage.

Irretrievable Breakdown of Marriage

If the wife moves a petition for divorce on the ground of Irretrievable Breakdown of Marriage then her husband would not have any right to oppose it. But if the husband moves such a petition for divorce on the citing Irretrievable Breakdown of Marriage then his wife would have the right to oppose it on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. Then the court may dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

This shows that marriage is no longer a sacred union but a financial security for the wife. If she wants she would have the right to walk out of her marriage. However, the husband would not have any right to walk out of the marriage unless and until he is ready to hand over a considerable amount of money to eliminate grave financial security for his wife. How conveniently the law treats a husband as an ATM machine! Making divorce easy would increase the number of cases of family breakups which would make the children suffer, as they would not be able to live with their father.

Also, it has been mentioned that the court shall not pass a decree of divorce on the ground of Irretrievable Breakdown of Marriage unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. So if a wife moves a petition for divorce under this new ground then would it be fair to grant custody of the children to their mother and order their father to make adequate provision for the maintenance of children.

Wife’s right to 50% of the immovable residential property owned by her husband during divorce

Half of the immovable property owned by the husband could be transferred to a wife during divorce. It does not mention whether wife would have any liability to pay the loan or mortgage associated with the residential property. However, it does not say that husband would have any share in the property owned by the wife. Also it is absolutely unfair that the wife would have share in the property acquired by her husband through his hard earned money before their marriage.

Providing incentives to the wife for a divorce would shake the foundation of the Indian families which is based on marriage. It only makes divorce attractive for the wives and would lead to situation where some women would marry to get divorced. Divorce was only meant to be a way out of a bad marriage. But now, with provision for alimony and property transfer the divorce would become more attractive than marriage.

Probable impact

A soldier is send on a mission to engage militarily in a conflict situation.  He is forced to stay engage in his current assignment and does not get an opportunity to visit his family for 3 years. This kind of law would give his wife the right to file for a divorce and walk away with half of his immovable residential property. Is it fair to a person who is risking his life for his country? Wouldn’t it demotivate a person to serve dedicatedly in the armed forces?

A man gets kidnapped and the his abductors keep him captive for more than 3 years. Under this law his wife could file for a divorce and get half of his residential property. Even if the man is rescued from his kidnappers, he would return back to find that his wife has got a divorce. Add to that she has walked away with half of the residential property owned by him. Does this look fair?

Adultery in Indian Penal Code

In India Laws related to Adultery is also very biased. Only a man can be convicted for adultery. A woman cannot be convicted under adultery law. The law states that women are always victims of adultery. Any person with some common sense would understand that this view endorsed in the Indian Law books is not correct. Women are equal participants, propagators and perpetuators in adulterous relationships.

The law needs to change so that either both man and woman can be convicted for adultery or make adultery non punishable. In both cases there would be balance in the law in terms of gender.

Rape Laws are gender biased

The Laws concerning Rape are very biased. It assumes that only a man can rape an woman. A woman cannot rape. A man cannot be victim of rape. This needs to be changed to make it a gender balanced law instead of a gender biased law in the current form.

If an adult woman has a physical relationship with a minor boy it must amount to statutory rape as it is has been considered in many other countries.

Another thing is that a consent given under the influence of alcohol is not a consent. This does not make any sense. It should not matter whether the person is under influence of alcohol or not, he or she is responsible for her actions, if the person is an adult. So a consent given under influence of alcohol should be a consent in the Court of Law. Otherwise, after giving consent, to land the man into trouble the woman would say that her consent was only under the influence of alcohol.