Alas, men have no domestic violence law!
-Justice S. Vaidyanathan
Quite recently, Justice S Vaidyanathan, Chief Justice of Madras High Court groused about the lack of legal provisions protecting men under the Domestic Violence Act. This happened in the light of the case where a woman filed a false domestic violence complaint in 2014 at Mahila court, Salem against her husband, just to harass him. Soon, he filed for divorce on the grounds of alleged cruelty and voluntary desertion by his wife and was accepted in the family court. Few days before the divorce, she sent the complaint of domestic violence to his employer. Consequently, the complaint led to the suspension of her husband, Dr. P. Sasikumar (Director of Animal husbandry and veterinary services in Chennai) because he was involved in a domestic violence case.
This made the aggrieved Dr. P. Sasikumar file a petition in Madras H.C against suspension of his service. Justice S Vaidyanathan after analyzing the case observed that it was done by the wife to trouble the husband after anticipating the divorce order. He stated, “Unfortunately, there is no law like Domestic Violence Act for a husband to proceed against wife in domestic relationships.” Subsequently, he ordered reinstating the officer within 15 days, quashing the order of suspension of a public official.
THE UNADDRESSED ISSUE OF DOMESTIC VIOLENCE AGAINST MEN
Domestic violence is a term that is always addressed concerning women. Men are always seen with the suspicion of the perpetrator. Violence is, however, nowadays, not only limited to women, but it victimizes men also. They are abused; physically, verbally, emotionally, mentally, psychologically, and sexually.
The cases of domestic violence against men usually go unreported. Men are the most silent victims of this abuse. The root cause of this is the gender-biased laws in India, which only favor and support women. They are seen and considered as the only victims of violence. It is hard for Indian society to believe that a woman can also inflict violence on males, maybe because of preconceived gender stereotypes.
Many a time, it is observed that, whether it is home or at the workplace, men are also forced to do the things they don’t do otherwise. At times, poor young men, having good educational qualifications are forced to marry someone or do some objectionable acts without his consent. Such people take advantage of their helplessness. There is no provision for men under the domestic violence act and even under the Indian Penal Code, as a society and law favor women as the weaker sex. As a result, there are many fake complaints lodged by the wife against the husband to satisfy their ego and to harass the husband and his family members on grounds of cruelty under section 498A, domestic violence, and false dowry cases.
This is evident from the case of Sushil Kumar v. Union of India, in which the Supreme Court observed that “Merely because section 498A is constitutional does not give rights and license to unscrupulous persons to wreck personal vendetta or unleashed harassment by misuse of the provision, new legal terrorism can be unleashed. This provision should be used as a shield against the wrong but not as an assassin’s weapon because when actual wolf appears then you won’t get the help”, “The fact that 498-A is a cognizable and non-bailable offense has lent a dubious place of pride amongst provisions that are used as weapons than a shield by disgruntled wives.” This observation was further supported in the case of Rajesh Sharma & Ors. v. State of UP and Anr, in which the SC passed an order to the police and magistrates stating that no person can be arrested instantly after being accused under section 498A, they need to conduct a proper investigation to ascertain the truthfulness of the claim at the first place. Thus, the Court was observed that “there was a growing pattern of cases where the women were misusing the legal provision to charge their husbands and his family members in criminal cases based on personal vengeance or ulterior motives.” Because of all these, the hapless men suffer a lot and do not get a respectable position in the family and society.
• Effects of domestic violence on men
It violates their basic human rights. It also gives rise to social evils like denial from family & society, divorce, depression, and sometimes leads them to commit suicide. As per the reports of WHO, it can also expose men to habits such as smoking, drinking, increases risk of drug consumption, etc. It may also lead to the criminal mentality in the person and may result in crimes and subsequent violence.
• Reasons for domestic violence cases against men remaining underreported
There are numerous reasons for men to not report or reveal the violence that happened with them, some of it includes;
• The existing gender stereotypes against men. It makes them feel ashamed in opening up against violence they had faced from a woman.
• No protection available to men in law from such abusive acts.
• Fear of it being judged as a fake case just for defending himself.
• Fear of facing legal consequences due to the false cases reported by the wife against him and his family members under section 498A.
• Fear of facing denial from the family and society.
• Fear of losing self-respect and dignity in society.
WHAT DOES THE LAW SAY?
Today, at present three laws are regulating Domestic Violence in India. They are; Domestic Violence Act, 2005, The Dowry Prohibition Act, 1961, and Section 498A of IPC. But unfortunately, all these laws are women-centric and protect only women. They don’t even recognize men as victims under the ambit of laws. They are unable to lodge a complaint against their wives and in-laws for abuse and cruel treatment. Instead, they are being framed under false complaints filed by their wives. Notably, every time women are seen more sympathetically, whether it be for cruelty, violence, maintenance, etc. As a result of which, the false allegations on men for sexual harassment and rape are increasing rapidly. The DV Act was made for the protection of women from any kind of violence inflicted by men/women. The term ‘aggrieved person’ in the DV act includes only women. Even Section 498A of IPC includes only women in its ambit.
Today, in India, 98% of the men have been victims of domestic violence more than once in their lives. It was concluded in the research conducted by My Nation along with Save Family Foundation (Delhi) that economic violence with approximately 32.8% is most common in India, followed by emotional violence which is 22.2%, physical violence which is 25.2%, and sexual violence was found to be 17.7%. Also, the possibility of violence increases significantly with the duration of the marriage, particularly if it exists for more than seven years.
According to the National Family Health Survey, 2004, violence is not always done by the wives alone, but it has often been found that relatives of wives are also involved in bullying husbands. The cases of intimidation by wives and relatives of wives against husbands were calculated, as per which, 30 million men in India are suffering from Domestic Violence.
Subsequently, in a study conducted in a village in Haryana, it was found that 52.4% of males are facing gender-based violence and 51.5% of males have been victims of some sort of torture or violence by their wives in their lifetime.
NEED FOR GENDER-NEUTRAL LAWS
Justice is the right of every individual, whether it is a man or a woman. But, in India why is it that when a man or woman approaches the police to file a complaint of domestic violence, only the complaint of the woman is registered. Why can’t a man file a complaint about domestic violence? Can men not be the victim of domestic violence? The word domestic violence nowhere indicates that only women can be victimized. Men can also be the victim or say women can also be perpetrators. In the 21st century, where men are being falsely implicated for heinous crimes like domestic violence, rape, and sexual assault, the implementation of gender-neutral laws is the need of an hour.
In India, laws suggest that only a woman can seek protection by citing physical, mental, emotional, financial, sexual, or verbal abuse, but a man can’t. A man can only get a restraining order from the court which restrains the wife from committing violence against the husband and from even contacting him.
The Constitution of India under Part III ensures some basic fundamental rights to every citizen of India. Article 14 states that everyone has equal rights irrespective of their gender, and Article 15 provides that nobody can discriminate against any person on the grounds of sex, caste, and place of birth. But, what we witness in the Indian laws is opposite to the principle of equality. Where we are demanding equal rights for women to that of men, why don’t we also demand equal protection of men under laws like women? Even though the rate of domestic violence against men is less than that of women, they cannot be denied the right enshrined under the Constitution. Thus, they should also be protected and should have a say in law.
CONCLUSION AND WAY FORWARD
There is no systematic study or record as to how many husbands have been victimized by domestic violence in India. A lot of efforts have been made to rectify this problem. Even after several observations and judgments by the Supreme Court concerning the issue, and have strong evidence that the law is being misused a lot against men. Strangely, no changes have been made to the laws yet.
Living in a patriarchal country, we have been brought up with the idea that a man should always be strong and if he is suppressed by his wife, he is considered week. This problem is coming out in the form of a social stigma i.e. if a man puts his problem in front of society, he is ridiculed and his manhood is doubted. Somewhere we forget that it is not about man or woman, it is about right and wrong, we have given so much freedom to women, that in the name of justice to women, injustice is being done to men. How can any law be so biased that only a statement of a woman makes a man a criminal, without any further investigation?
Hence, it is very important to bring the amendments and special provisions to make gender-neutral laws in a patriarchal country like India. It will help to punish the accused, regardless of gender. Besides, Domestic violence should be considered as spousal violence, and not a women-centric one.
There should be made some special provisions for strict punishments for filing false complaints against an innocent person, which ultimately causes harm to his reputation, pride, dignity, and honor in the society due to the accusations of false charges. This may in some way reduce the level of false allegations against the husband by his wife or intimate partner.
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MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?
The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.
The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.
It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?
In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.
It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.
The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-
Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.
Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.
HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956
The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.
The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
FACTS OF THE CASE:
The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.
The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.
the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.
Contentions Raised by the Parties:
It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.
It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.
The submissions of the petitioner were countered by the Respondent on the following grounds:
Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.
It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.
The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.
The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.
Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.
KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?
The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.
The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.
The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.
In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.
Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.
It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.
Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.
It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.
Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.
The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?
In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.
Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.
The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.
GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN
The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.
It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.
It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.
It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.
In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.
It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.
Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.
It was ordered by the court status quo till July 11, the next date of hearing.
The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.
In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.
In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.
Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.
Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.
It is submitted that these observations would apply across the board, in the entire NCT of Delhi.
Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.
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