Idiocy of the Indian Protection of Women from Domestic Violence Act!

A curious paradox: Now let us go into a detailed examination of the various wordings of the Act. Yet, before that there is one thing that needs mention. The question of: Are women equal to men? Well, if it is proposed that they are equal, then why a discriminatory Act that promotes the idea in all sense that they are not equal? The Act radiates the idea that the women are powerless, intellectually weak, and need guardians to who can watch over even their sexual activities, as to whether the various actions are within the permissible domains of law. If the opposite is being said, that the women are indeed a weaker, lesser intelligent section of the population, why then should it not be understood that the husband necessarily has the right to curtail a part of her freedom to move around and mix, and to regiment her timings. For, in the case of children, the parents have been given the right to control all this.

The writer of this book is not of the opinion that women are innately weak or lesser intelligent. For, he has brought up his daughters in a manner that have limited the control of social refrains on them. He perfectly believes that a female child when born is as equal to a male child in all intellectual as physical possibilities. Or possibly more.

The ineffectual training: However, the female child is being trained by her parents, other family relatives as well neighbours to feel that she is a lesser person. She should not move with the freedom that the male child has, has to do the household chores, should not take part in outdoor activities, and such. Such a mentally enfeebled person is, after marriage being equated to a male, who most probably has been trained in the opposite mood. The exact fault is not with the husband, but with the female’s own parents and other relatives.

Keeping Satan away: Also this may be mentioned. If there are signs of physical violence, then there are provisions in the law that can deal with it. However to make a law with the seeming link to physical violence, at least in its name, that literally goes beyond all this, and which tries to make mincemeat of all tenets of marriage is, to say the least, the work of Satan. Satan has no business making statutory laws in India.

Difference between India and England: Now before embarking on the tedious job deciphering the various sections of the Act, written in mediocre English, it is good to understand that India is not Britain. Indian Policemen are not equivalent to British Policemen. Police behaviour to the Indians by the Indian Policemen is quite different from the British police behaviour to Britons. Simply writing Sections that say ‘arrest’, Protection ‘Officer’, Police ‘Officer’ etc. has no meaning here other than terrorising intimidation. Literally a man going to be arrested in Indian on the basis of a petition by his wife or some other third party may literally go in for panic attack, or may simply abscond, if he is unable to find a powerful social or public leader to lend him support. The issue of these drafter being given the power to write such wordings into the Act without understanding the havoc it can create in the social scene, wherein solitary individuals can get cornered by the brute force of inept and abysmally intelligent police and official persons is, to say the least, similar to giving an exquisite jasmine garland into the hands of monkeys. They would literally make mincemeat of all statutes and conventions connected to jurisprudence.

Having said that, let me go into the exact wordings of the Act.

Looking at the various Sections in the Act

Aggrieved person and allegation

Section 2

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

The ‘aggrieved person’ can only be a woman. And an ‘allegation’ is enough. Both are violation of the basic principles of law. Or the constitutions should declare that women are weaker than men, and need protection from everyone, including their husbands and sons.

(b). Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner

This is a right everyone has. It need not be defined as Domestic Violence. For it is not domestic violence as such.

Verbal and emotional abuse

In Section 3, Definition of Domestic Violence (a), it is stated:

any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

Now talking about abuse, verbal and emotional, the things I have mentioned earlier have to be invoked. For, in a feudal vernacular, abuse is not contained in such abusive words like ‘Daughter of bitch’, ‘Daughter of a gun’ ‘Daughter of a prostitute’ etc. These are abuses that practically despoil the saying person himself, when others hear it. The real abuse lies in the wrong or non-respectful indicant word used to the husband. It is totally provocative. The legal luminaries feign total ignorance of this vital touchstone of Indian social communication.

A wife who uses the non-respectful words to her husband and about her husband is being satanically abusive to her husband. What is his defence against this?

Economic abuse

Then about economic abuse? If the wife is also an earning member, then there is no meaning in this. However, if she is dependent on her husband, and he uses this screw to subdue her, what is to be done? Indian males are Indian males. Everyone tries to use sly techniques to subdue others. It is part of the feudal vernacular culture. If the female is having the strings to the purse, she will also use it to subdue her husband. The correction should come in the change of social communication system. Meaning the language.

Returning the wife’s financial contribution: However, when talking about dowry or what may be defined as sthridhan, things are a bit complicated. The marriage takes place between two individuals, who are equal partners. The family uses all financial resources to run their business. Including what the wife brought in. The business fails. Later the wife files an application for divorce. Now, how would one judge that the husband has absconded with the money from his wife? It was a joint venture. The venture failed and the money was lost. I am bringing this aspect here to caution about the jeopardy of using generalizations in the case of what is commonly defined as dowry.

What is generally defined as dowry is only the contribution of the wife towards the total financial resource of the family. It will not remain intact as the years roll by. It is slowly spent on the various activities of the unit called the family. Only if it can be proved that the husband made use of it for his own selfish interests does the issue of returning the full contribution of the wife come into the picture.

If instead of dowry, the wife is an earning person. Every month her earnings are coming into the financial resource of the family. Can she then, when filing for divorce, calculate the total of her earnings that has come into the family and ask for its reimbursement. Well, divorce is a failure of a venture that was started with good intentions. When it fails, the law should not take a unilateral stand on one side. And when statutory laws are being passed, the attitude that one side of the venture is of barbarians and the other side of angels should not be there. Basically both the male as well as the females are Indians, and thus both do carry within them all the irascibility that is seen on the Indian landscape.

Coercing and unlawful demand for dowry

Now look at this:

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

Well, here there is an issue of harassment that is akin to what one identifies with such crimes as kidnapping for ransom. The accused is not seeing the female as his wife, but as a sort of cow for periodic milking. However, the situation here is not what one does find in an ordinary family. Mixing this issue into other features of a married life, can more or less cause it to be included in case of a belligerent legal action. It is a totally different issue. One which is a crime, and has to be viewed differently. Yet, the problem here is that when a belligerent action is being contemplated against the husband, it is very easy to include this clause also. For, it shall aggravate the antipathy for him in the eyes of others including the judicial officer.

It is like this: Many years ago, during the time when Internal Emergency was in force in India, the police in a town were on the lookout for a naxalite party member. They corned him in a bus stand. However, he gave them the slip and ran. Immediately the police cried out, ‘Catch him. He has snatched a gold chain from a female and is running.’ Hearing this, the people ran after him and caught him. They gave him a severe beating before handing him over to the police.

The same is the case of including this clause without adequate wordings cautioning the chance of misuse of this clause.

In many ways, this crime is connected to the current culture of the nation. Everyone wants money. Without it, a person can go down in social ‘respect’ as understood in indicant word codes. Almost all government officials who can do it, will coerce a common man for bribe; policemen do it; in fact, in this issue it has become a free for all situation, wherein all the moral and ethical teachings that this nation propounds to be part of its culture, simply becomes mere façade.

Now, it is true that anyone who is thus harasses should be punished. Not only the crooked husband, and his cronies, but also the government officials, the police officials, and the rest. Now, the only question here is how come only in the case of the husband verses wife issue is the action quite terrible, including that of an immediate police questioning and non-bail-able arrest and such things. The fact is that such a provision should be there in the case of all others including the government personnel.

Yet, here is an anomaly. In this case, simply a statement by the woman can set criminal charges to be filed. Immediately police actions, which is terrible initiates. It is here the writer finds it hard to digest the logic. For, if a common man gives a statement that a particular police official has threatened him with dire consequences or has actually beaten him up, because he failed to pay the due bribe, the whole accusation would be taken as a laughable matter, which wouldn’t proceed further even one step.

If Indian men are said to be crude, well then, the Indian women are also not far behind. In most cases, their fathers and uncles all come into the picture to see that the impertinent person is given a sound thrashing.

Insults, ridicule, humiliation, name calling and about not having a child or male child

Now this definition:

(iii) “verbal and emotional abuse” includes—

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

Verbal fights would happen in any partnership, including that of business. Yet, it has to pull on. Otherwise, the business would falter and fail. Now, the husband finds his wife irritable and he calls her names, and other insinuations, including those mentioned. The wife might give him sound verbal answers which can be provocative. Or she shall maintain a silence, implicating that he is a madman or a nitwit or simpleton who does not deserve an answer.

Or she may send out non-verbal, insulting signals.

Well, the husband may react with more violent words. The wife may be in the right or she may be in the wrong. However, for the law to take a prejudiced, and foregone conclusion that it is the husband who is in the wrong is a terrible foolishness. This type of foolishness has entered into domain of jurisprudence, because low quality persons have entered into this sacred arena of drafting laws. They do not know what they are doing. Or where they have entered.

Use or access to resource and facilities

Then there is

(c). prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Well, what is going on is a fight between two individuals, most probably prompted and encouraged by many others, with their own vested interests. When such fights happen, both sides would see to distress the other side. Whether a prohibition to continued use of a shared facility would come under the exact definition of Domestic Violence is debatable.

Sexual abuse

In Section 3, Definition of Domestic Violence, Explanation (ii), Look at this:

“sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

In a marriage, where both the wife as well as the husband is intelligent, sex is something they both decide upon. Yet, in a relationship wherein the wife is not of equal intelligence or informed, sex is something that may go beyond the limitations imposed by the penal code.

Yet, at the end of the procedure, if the wife goes ahead with a complaint that she has been subjected to something she did not like, what can the husband do?

It would be like he is encumbered with a totally idiot wife who doesn’t know what is good for at the exact time it was being enacted. The wordings do have a slight bit of idiotism embedded in it. She has the right to not to do what she doesn’t want done. If he compels here, then and there she has to say it. And should not allow any furtherance of the action. Her claim that she is too weak personality-wise to put up a defence is a terrible manner of exacting justice.

Denial of sex by wife

It may be remembered that a wife can deny sex to her husband just to spite him, or to lend support to his detractors. When she denies him sex, he is literally at the level of begging for sex. Here if he forces her to have sex, it becomes forced sex. Here again, the wife does have certain powers, which need not be pure physical powers. The power to deny something legitimately the right of the husband to ask for. If she denies it due to her not being physically fit for it is one thing. Her denying it because she is deposed to favour the enemies of the husband, is a totally different issue. Such an attitude would smack of pure infidelity.

However, the Act does not sense this difference. And moreover has no means to find the difference in an actual issue of denial of sex. It has only a one-track mind. Catch the husband and hand him over to the police.

Off course, if every day the husband ties her up and proceeds with his handy-work, then the marriage relationship is not on a healthy form. Talking a judgemental attitude about sexual procedure is also not a safe thing. The exact judging of whether what the husband has done is in the realm of cruelty cannot be formed without understanding what he has done, and whether it is a common procedure among others in a sexual activity. The wordings of the Act with regard to this is quite a generalisation and thus quite dangerous.

For example, there are many sexual activities that can be cursorily defined an unnatural, but are being done by an immense number of married couples.

That he is forcing her to do something she does not like is not a thing that should go to the police, unless it is something life threatening. In which case, it become a case of attempted homicide or something he is doing for bodily harm. There can be sadists among the men folk. But then there can be sadists among the female-folk also, about which fact the Act feigns ignorance. It is not a one-sided issue. Correction in such procedures should come from proper advice, counselling and such things, including access to quality information. Not police station.

Denial of sex by husband:

Now there is another aspect about sexual abuse that has not been mentioned. What if the husband denies sex to the wife, just to make her suffer from the deprivation? Well, that is also sexual abuse. If that be so, the denial of sex by the wife is also sexual abuse. However, the term abuse is getting quite contorted by all this legal bullying.

If the wife finds him horrible, does not like him, cant bear to be connected to him etc., which are all quite possible, then divorce is one possible choice.

Threatening a person in whom the wife is interested

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

Here there is something to be understood very stringently. A family is a unit in society, as a business is a unit in the commercial world. Each business has its own interest, which may be in competition with many other businesses. Similarly a particular family is a unit which has its own interest, and thus socially it can be said to be in competition with so many other families and their members, in regard to garnering of ‘respect’, money, social position, higher education etc.

Now, inside a business if one of the partners is having a link or alliance with another person in another business, which may or may not be competing with it, the other partner can naturally feel aggrieved. Each time, the other partner is moving with the other outside person or phoning him, vital information or social stamina can get transferred. Likewise, if the wife or husband is doing the same with an outside entity, who might be the father, mother, uncle, boss, colleague, lover or someone else, the spouse can get tension. To say that all this is due to his mental weakness is just being naive, and quite un-informed about Indian social competition.

In such a situation, if repeated pleas to stop such liaison are not heeded, the aggrieved person (husband) may speak out words in quite ominous terms, hinting that some disaster may befall him or her, either through the action of providence, or by his or her own deeds. These types of talk are all quite normal human reactions to unsettling social signals and information. It is done in his or her own private areas. The person is not going to the other person’s house or business premise and calling out the threats. If the husband does go to the other person’s place and does it, he may first all be a brave man. Second, he can be arrested for this without resorting to the provisions of the Protection of Women from Domestic Violence Act. Anyway there may not be any women involved in this crime, for that matter, if it is a fight with another male.

Now, when a male does it, it becomes a crime. That is neither fair nor justifiable. For it simply presupposes that all males are brutes and all female are angels. Only a super nut will come out with such suppositions. Also, what is his wife business to support the other entity? She is this man’s lawfully wedded wife. Her duty first and foremost is to support her husband. If she is not aware of this sacred tenet, it is indeed a failing of the government of India. For, the citizens do not seem to know basic ideas about marital life.

The non-tangible walls of a family: Now, this much also must be added here. The family unit is a sacred formation. The walls which hold it together is not the physical walls that one sees around a house, but the non-tangible wall that surrounds the concept called the family. Inside it, the members of the family are to be secure. Now, how can anyone dare encroach this Sanctum sanctorum? Even the parents of the spouses are essentially beyond its limits unless allowed by the inmates.

Well, it is true that most husbands and wives do not measure up to this ideal. For both sides do essentially attach themselves to others outside, who put in their strings, with claims of blood relationship. Now, the law should understand that marriage is an institution that has been shaped over the centuries. Even though the culture of the place may give intrusive powers to the blood relations, the conventions associated with marriage do not allow that, nor is it permissible.

Right to curse: If the spouse curses another person who is an encroacher into his or her household, it is not a crime. It is his or her right to curse encroachers into his or her household, if there is no other way the encroachers can be controlled. Here the encroachment need not be physical.

An example of an encroachment: For example, if the each time one of the spouses mentions anything to be done, the other spouse wants to gets his or her parents’ permission, it becomes an encroachment. For, ultimately everything done by the household has to gets the ratification from an outside entity. It literally means that the leadership of household is elsewhere, and the two spouses are mere serfs, obeying the landlord’s orders. Well, no individual would like that situation. He or she has the right to curse the intruder. And one should commend him or her for that, for it more or less relives the boiling hatred from spilling over to physical violence.

Then look at this:

4. Information to Protection Officer and exclusion of liability of informant.—

(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.

Well, even though this looks like a very innocent section, the facts and reality can be near tragic. The fact is that for any violation of any law, anyone is entitled to report to a police official. Yet, to pronounce this very specifically in the context of a law that very evidently is biased and one-sided, and wherein the accused has no properly mentioned recourse to justice and protection, this section shall remain as a very powerful tool of intimidation for outsiders, including the parents, uncles, aunts, cousins, brothers, sisters, brother-in-laws, and sister-in-laws. All that one has to do to provoke their all enmity is just refrain from extending their expected levels of obsequious ‘respect’. And all that they have to do is to just write a letter to Protection officer or to the local police station. It shall start a machinery which has no control or refinement. The husband would literally have to run for cover. The others could simply enjoy the spectacle with glee.

A police intervention scene: I am not saying that there would never be cause for such reporting, but then the machinery to deal with such things is quite demented. I was once witness to such a reporting. The husband was fighting verbally with the wife. The wife was also quite powerfully answering back in a tone that was quite devoid of any respect for her husband. He was very much provoked. The scene looked like that he would go in for physical violence. The police arrived. They crudely caught him by the collar, abused him verbally, and simply slapped him continuously right in front of his wife and children. With each beat, he literally screamed with pain.

As far as the husband-wife relationship was concerned, it was a dramatic event that turned him into a non-entity inside the household. Now, the question is whether the police are the right persons to deal with such a situation. They do not have the intellectual acumen to react sanely to such incidences. It may be mentioned passing that reporting to the Protection officer is just a route for police intervention.

The negativity of the Indian social climate: The issue here is that in the Indian social climate, the male is under many social pressures. It mainly comes from a low-quality non-English educational system that requires the effective acknowledgement of respect for any social interaction. For the extraction of this social respect, the persons involved have to show some restrain in their social movement, and have to be quite judgmental about whom one should move with. This goes for the wife also. It is not socially healthy to move around like a loose bullet. For, it can create hurt in the matter of social respect, not just for the wife, but also for the husband.

Enactment of statutory laws without correcting this basic error in society is not going to cure the disease. It can only aggravate it. Yet, who is there in India concerned about a general improvement of the populace? Everyone is actually interested in making money for themselves, and moving themselves or their offspring off to the English nations, away from all this negativity. I do not know if the offspring of the drafters of this Act have also done the vanishing trick to England and US.

‘Her children’: Now, I would like to discuss the term ‘her children’ which has been used a few times in the Act. What kind of idiotic description is this? How can the children be ‘her’ children, always? In most cases, the appropriate term would be ‘their children’. I wouldn’t propose that the drafters of the Act do feel that children in such cases are the products of agamogenesis.

The use of such a wording makes me feel that the drafting of this Act was done by some female who had or has had a terrible anti-male disposition. The aim seems to be to totally erase all claims to the various entities of a family life by the husband, and father. People who come with such single-track mind and carrying certain innate antipathies are not the fit persons to draft statutory laws. For their own mental afflictions and vexations would enter into the words, and mood of the statutory Act. It would affect everyone living in the nation. Why should such solitary truculent moods be allowed to do this? On what basis was such sacred responsibility given to such persons with such shifty agenda?

Next is this:

5. Duties of police officers, service providers and Magistrate.—

A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person—

(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;

(b) of the availability of services of service providers;

(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);

(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:

Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.

Here we come upon a very big dilemma. The woman would have been really attacked by a vicious husband, for no wrong of hers. It is possible. Or he may have attacked her due to her belligerent stand or extramarital loyalties, to others including her parents, his parents, her family members, his family members, her boss, her colleagues, her lover and such. Yet, there has been physical violence. It has to be dealt with as per the law. But not necessarily by a special law that is totally prejudiced.

Now there is another possibility also there. The wife may be lying. Maybe there was a rough talk between them. He may have pulled her to him, and she would have resisted. This would make marks of roughage on her skin. She may make more marks of physical abuse. Her outside advisors would tell her what all acts to put up. So that the husband can be made an accused with a terrible charge on him. Well, don’t women tell lies? They do. For money, status, claims on children and such things. Also they would do it, if her husband is not falling in line with what her parents or uncles wants. These are all facts of Indian social life. Both men and women do lie.

Then how can an Act that presupposes that women do not lie come up? And that too with draconian provisions, and unquestionable powers to jail an accused, just on the basis of a woman’s words. In this nation, neither man’s nor woman’s words are believable.

For example, go to an RTO office. Earlier it was said that only male officials are rude and corrupt. Now, what does one see. Both male as well as females are equally adept in the art.

Beyond all this, when the female reaches the Protection Officer, he or she is to statutorily advise her on her right to have her husband arrested. Well, his or her job is to provide her with protection from so many other things, not just her husband. He or she has to find a secure place for her to stay. As to having husband arrested, well, it is not quite a silly thing as the wordings suggest. A citizen of this nation can be arrested, off course. But then there are other equally powerful laws that govern the ways and means of arresting. Including the duty of the police official to tell him why he is being arrested and charges, and also his rights and ways to seek judicial redress. The Protection of Women from Domestic Violence Act naturally is not obliged to point out all these things. Yet, doesn’t go beyond its limits when its wordings do encroach the rights of others as accorded in the Penal Code?

What might happen in a shelter home

6. Duties of shelter homes.—

If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.

Here again there are things to be mentioned. The true fact about India is that though the public servants are paid astronomical salaries, huge perks and fantastic pension benefits, there are no homeless shelters, free rest houses and such things for the financially weaker classes. Placing a female in a shelter home is not necessarily a safe thing to do. For, the moment she is admitted, the female wardens there treat her like dirt. For, her indicant word levels fall to dirt levels.

What is required here is the building up of an innumerable number of shelter homes, which are of very elegant provisions and conveniences, where anyone can stay if they have housing problems. After all they are the citizens of this nation. And all financial resources that this nation has accumulated are for their use. Decent Homeless shelters should be built up for women, where they can stay when they feel threatened or insecure in other places. Different persons have different problems at different times. It is better in the long run not to bring in police personnel, Protection ‘Officers’ and such beings into the inner sanctum of a family. In many cases, a slight detachment can bring back the endearments, which had soured. But a provocative word or action by a police official or a Protection ‘Officer’ can be detrimental to such family peace. For it shall hover in the head, and create outbursts later on. The government is taking the shortcut by simply having an Act drafted, which wouldn’t cost much. Building of homeless shelters and shelters of women will cost money, which the government does want to spend. Hence the recourse to shortcuts!

Failure of formal qualifications

8. Appointment of Protection Officers.—

(2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed.

Here again we come into a consternation. Usually when formal qualifications are prescribed, they do not mean much. For example, persons who have not heard of Enid Blyton, don’t know even around ten English nursery rhymes, haven’t heard of many English classical writers, let alone have read English classics, don’t know who is Snow White and such characters, haven’t had the occasion to see English films on a regular basis, are known to be MA in English. Now this is the real link between formal qualification and real quality.

Similarly persons, who do not have much innate intellectual inputs mug through some exam guides and achieve formal qualifications.

Here I would like to quote a passage from another writing of mine pertaining to education and qualification:

Many years ago, I did see many persons like engineers, doctors, big business men, managers etc. They were all very good in English.

Most of them were quite at home in English classical literature. They had more or less climbed the Mount Everest of English Classical Literature. Their other professional attainments were just a minor extension to this magnificent achievement.

That is, they had climbed the huge Mount Everest of English Classical Literature. Then they had climbed a few more steps of their professional course. So, it was their initial achievement that of being at home in English Classical Literature that gave them the grandeur and the heights.

However, the Indian Carpenters were not educated in English. They had not climbed the Mount Everest of English Classical Literature. They simply stood on the minor mount of knowledge in carpentry. Well, this much I said not to demean the Indian carpenters. For, their professional capacity was undeniable.

What I wanted to mention here is just this: In current day India, most (not all) professionals including the doctors, the engineers, the management professionals, the businessmen and others are all intellectually at the level of the Indian Carpenters. They haven’t and can’t read and understand the English Classical Literature. They stand just on the minor mount of their professional studies.

Problem of giving arbitrary powers to feebly intelligent persons: What I would like to say here is that giving arbitrary powers to such persons based on formal qualifications can be counterproductive. For here again, their sole consideration would be the exacting of ‘respect’ from the persons concerned. In this instance, if the husband is a person with some individuality, and not willing to concede obsequious ‘respect’ and subordination to such persons who don the title of ‘Officer’, yet doesn’t know the basic tenets of what an ‘officer’ means, shall be at the receiving end of draconian provisions in the Act.

Many of the things that the Protection ‘Officer’ has been entrusted to do can very well be done by the aggrieved person herself, if she has the requisite mental stamina. Here again, it is the government at fault. For one thing, it is the fault of the current educational system, that more or less erases quality from individuals, and makes them grow up with either subordinate mental features or with excessive of mental domination.

Facing the responsibility: Beyond that, where are the homeless shelters and shelter from women, where a person can reside without losing one’s decency and sense of ‘respect’ in India, that are free and run by the government? The government and off course the drafters of this Act needs to answer such questions, before going off in a very easy track of simply sitting in front of a computer and writing sections upon sections of truculent Acts.

Bodily injuries and such things

(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;

Now, this is an area that has to be dealt with. A woman in injured, ostensibly by her husband. It can be a grave incident, or a simple slap. Both are really beyond the rights of a husband.

Now, the thing is that, as I mentioned earlier, this beating up process is a more common thing in this nation that understood through this Act. The teachers beat up their students, more so, and with more horror, if the school is a vernacular one.

Policemen beat up anyone who incurs their wrath. They also beat people simply to practice their ‘right’ to beat.

Parents beat their children.

Inside colleges, students from a powerful union beat up student from a powerless union.

Do I condone any such beating? Well, I don’t find any of these actions condonable. A parent who beats his or her child, or uses abusive words, necessarily have to be given punishment. As to abusive words, I would even go to the extent of saying that even if the parent uses the so-called more intimate words for You, He, She etc. to the child, is being abusive. Yet, these are things that the current day drafters of Statutory Acts haven’t contemplated upon. And even if they have contemplated upon such things, they are more probably intellectually incapable of doing anything about it.

Now if the reader thinks that what I have dealt here is all nonsense, be aware that in English nations, whose female freedom is tried to be enforced here, a parent who beats his or her child is liable for punishment. All it requires is for the child to simply take the phone and call the police. A child in an English nation has no social or language indicant word block to make such a call.

Teachers cannot beat students in English nations.

Policemen cannot beat up the common man in English nations.

Well, when thinking of the beating up a wife, the same is the case in English nations. A wife cannot be beaten up a husband. If he does, the wife can naturally beat him back. Here again, the Indian wife is either too docile or too rough. Never equal to the husband. Basically a problem connected to the unequal nature of the Indian communication system. Either higher or lower, never equal.

Indian husband beating up his wife, if at all he is doing it, is connected to the total culture of beating up subordinate sections, if they show seeming impertinence. The need is to correct the whole scenery. At to the law, and statues, the wife also has the right to fight back. He slaps her; she slaps him.

Now, again, in all these issue, the provocation needs to be studied. I do not condone the beating up. Yet, when the law comes into the picture, it should take up not only the provocation, but also the possibility of the wife telling a lie, and possibly feigning more injury than was there, or possibly feigning the whole injury, which can even be self inflicted. People do act in strange manners, when confronted with the issue of presenting evidence.

Now about the Protection ‘Officer’ examining her bodily injuries. Well, what could have happened could be so many things, including the husband beating her unilaterally. It could have been a fight between the husband and her relatives, and she could have interfered and got collateral injuries, not directly aimed at her. Naturally her parents and others would force her to use her injuries to enforce the provisions of the Protection of Women from Domestic Violence Act.

Or else, there is the third possibility. That the husband and wife, both went in for a head-on fight, each inflicting injury on the other. To say that this is impossible, is to be just stupid.

Why is there no mention of the Protection ‘Officer’’s duty to examine the husband also to ascertain whether he is also injured. What he or she is presenting to the courts has to be impartial evidence. Not one-sided versions of an event. To just make a Statutory Act that calls for such one-side actions, from government officials is the height of irascibility. Why isn’t there any provision for penal action against the drafters of such daft laws?

(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

I haven’t gone through the procedure prescribed, and so can’t comment on it. Yet, the basic issue here is that the provision for Social Security for the common man, including that of adequate pension benefits are not there in place. Such things are only there for the government employees, who more or less leech on all resources available in this nation.

Now, it may be mentioned that the writer of this book does not endorse any beating by anyone on anyone. If there are bodily injuries, then the person has to be given adequate medical attention. Here again, the quality of medical attention currently available in Public Health Centres is quite questionable.

Service organisations and a revolutionary proposal

(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act.

It is a fact of life in India, that many NGOs here exist to garner government funds or leadership over individuals in the guise of extending relief. An Act that prohibits the use of lower indicant word usage to the people who come under them might be a great relief to the already tormented female. No drafter of Statutory Acts would have the guts to even propose such a revolutionary idea, which shall naturally change the shape of this landscape from that of stifling feudalism to that of liberalism. Naturally the need for changing the national language to English is deeply embedded in this idea.

A quote from another book of mine:

“I once did ask a lady who had passed the MSW (Master in Social Welfare) about this. She was working with a very rich Indian NGO. I asked her about the issue of ‘respect’, as they went around ‘improving’ the people. She very candidly told me thus: ‘We have been very stringently instructed to keep them in the lower case. For, if we are to use respectful words to them, they would immediately understand us as lower to them. So, we forcefully keep them suppressed. However, they are more grateful, for whatever help we give them. On the other hand, had we given them the full liberation, they would never be grateful to anything that we do for them’.”

(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.

This bit is a very touchy issue. Who cannot proceed with a legal action against the Service Provider? Can’t the female do it, if she feels that the treatment that she does get from them is abusive, intolerant, snubbing, and possibly insulting? What about her right to individuality, and dignity, which in most case will get erased by the use of lower indicant word usage? How can the drafters of this Act close their eyes to the possibility of abusive language, which is not necessarily by the use of expletives and profanity?

Also, suppose she wants to communicate again with her husband, due to a possible change in mood. The Service Providers disallows this. What is the legal standing about this? Do the Service Providers have the right to curtail her innate rights, and can they stop her from going out, or meeting anyone she wants to speak to? Would her being in the care of the Service Provider be equivalent to being in their custody and confinement? The Act does not specifically define and curtail the possible misuse of powers, an Indian Service Provider would naturally do. For, if the Service Providers also get the feeling that the female is now in their legal possession, for the female it would be just a case of jumping from the frying pan right into the fire.

Sensitising the police and other officials

(b) the Central Government and State Government officers including the police officers and the members of the judicial services are given periodic sensitization and awareness training on the issues addressed by this Act;

This is a part of the utter nonsensical, perfunctory wordings that literally mean nothing. What kind of sensitization is there being imparted to the police officials, with regard to the decent ways and manners of communicating with the public. The police department functions literally in the vernacular. So, the lower levels of the vernacular indicant words are used to the public. Lower level indicant words are a highly sensitive issue. Yet, over the years, not one Indian leader has spoken against it. In fact, they have all worked to stop English from spreading. English could have erased this issue. These are points for pondering.

As to the judicial officers, they have to be made to understand that peremptory actions should be refrained from. For, ultimately the family can get destroyed, by the use of brute force of the insensitive statutory Act. People in this nation are living a life for great insecurity. The lower financial bracket husband can get humiliated and encroached upon for his lack of adequate means. On the other hand, at the higher financial levels, this Act can act as a tool of blackmail. For, who can bear the threat of an imminent Indian-police action? It is better to pay up and escape that humiliation. An interaction with the Indian police is enough to make persons of refinement contemplate on committing suicide.

Refining the judicial order: When cases under this Act come up for judicial scrutiny, the judicial officials necessarily need to bear in mind that it is an Act that stands in direct opposition to the basic tenets of jurisprudence. And also is one that is quite insensitive to the frill issues of a married life. Moreover, both the husband as well as the wife is literally in the hands of various other official functionaries. Their travails need to be alleviated by as many means as possible. That is a point to be deeply pondered upon.

Beyond all that, the issue of what are the provocations that led to the acrimonious issues should be dealt with. The presence or encroachment of outside entities (including parents and other family members) into the sacred realm of a family unit, should be found out. If such nefarious incidences are suspected or found, a question on the propriety of such actions should be done. An order on the case should have connection to this aspect.

Possibility of a forging: There should be an understanding that a penal action on the husband is more or less, equivalent to granting a divorce, in many cases. So the possibility that the case is a forged up one to extract a divorce or money should also be considered. Even though judiciary functions on the platform of total impartiality, and goes solely through the evidence brought before it, in the case of this Act, what naturally comes before it from the government side can be only one-sided. Taking this fact into consideration, and also the understanding that the avenues for the accused to defend himself is limited, and also the fact he could have already undergone the terror of a police questioning, the judicial officers is morally obliged to take an acute interest in the finer aspects of the case.

A pipedream

(c) effective co ordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and periodical review of the same is conducted;

This is only pipedream. For, all of them essentially functions in feudal vernaculars. So, the issue of hierarchy shall hinder any effort at co-ordination between different government departments. For the personnel in one department will find it difficult to communicate with others in other departments without knowing the exact superiority or inferiority of each other, in the government service. Other than that such things as seniority of age etc. shall complicate the issue.

A legal recourse to counselling

(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed.

This idea is indeed a good one. The only problem being that the counsellors with formal qualifications may not be fit for the job, unless they have the innate abilities. So, it may not be a wise idea to confine the ambit of counselling to only those with formal qualifications. How it can be extended to include other persons with innate capacity for counselling shall need to be further studied. Beyond that there is the issue of either the respondent or the petitioner being unwilling to go for counselling, either due to the understanding of the ineptness of the counsellor, or for some reason which he or she is not willing to divulge. Would the judicial officer take a negative stand just because of this?

Contravening the concept of equal partnership

17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

Now, this is a very interesting aspect of the understanding of the concept of Indian Marriage. After marriage, the wife has to move from her house and live in her husband’s house. In the situation, where the husband has a separate house, it more or less becomes the family house of both the husband and the wife. However the Section of the Act mentioned above, more or less, gives the understanding that after marriage, the wife moves to the husband’s parents’ house or to his joint family household.

Well, this part is actually a terrible part of Indian married life. The underlying understanding is that the female is more or less given to the husband. There is no reverse sense of the husband being given to the wife, in this action. The concept of husband-wife equality is nowhere in this action. There is superiority assigned to the husband. Which is a concept that does not go well with the English understanding of the wife and husband being equal partners.

Mixing two basically different types of married lifestyles: Once this superiority is assigned to the husband, then subordination naturally gets assigned to the wife. Here again, the issue of insubordination does come in. Well, here the issue of what type of family relationship is being aimed for is the issue. Mixing up a feudal, vernacular culture family lifestyle, with a modern English language based wife-husband equal family relationship has no meaning. Both have to be dealt with differently. Meaning that the drafters of the Act should understand that these two lifestyles are entirely different from each other, with each placing the husband-wife relationship in totally different planes.

When the vernacular lifestyle is there, the same issue of children not getting up when the teacher comes into the class arises. If a student doesn’t get up, it is an issue of absolute insubordination, disobedience, and the breaking up of the school culture. In an English nation classroom, the students do not get up when the teacher comes in.

What the wife can freely do, and what the husband can’t: Now, coming back to the issue. If husband-wife equality is insisted upon by Indian jurisprudence, then, husband naturally has the right to reside inside the wife’s parents’ household. Why not? The question does not really reach up to this point, if one is to understand that if one of the partners does not like to live with the other, then that person has the right to move out. Well, that is what majority of women can do at any time. For, if they do not like to live with their husband, or if their parents and others do not like him, she will very well move to her house. And will, if required, put in a petition under this Act.

The same cannot be done by the husband. For, again he is liable to be penalised by this very Act. The situation, to say the least, is utter nonsense.

If the law insists that marriage poses certain responsibilities on the husband, it may be safe to understand that the wife also comes under certain codes. First of all the question arises as to whether either the husband or the wife is in possession of this knowledge or information. For that matter does the government also have any idea as to what the duties and responsibilities of the husband and wife? What are the parameters of a family life? Well, I will deal with these ideas at the end.

Right to live with enemies: Coming back to the issue of the wife having the right of residence in a household that is inimical to that idea, is to propose a total stupidity. For, if anything bad befalls her, it would naturally become a terrible thing for the husband’s household. Why should the law insist that she can force herself on to persons who do not want her with them? She can be good or she can be bad. That is not the point here.

Here again, the question goes back to the issue of why there aren’t there any quality shelters for vulnerable females run by the government? Instead of forcing helpless females into places where they are seen inimically, the government should built such shelters in all small towns, big towns and various parts of the cities, and run it on good quality levels. Does the Indian government have this basic quality to run quality institutions, that can cater to the common man?

If a woman insists on being placed back into a place which is inimical to her, what is that supposed to mean? Is she aiming to go for a head-on fight with the other inmates on a daily basis? Either she is on a belligerent stance, or she has nowhere else to go and stay. Well, the government has to understand that at every point in time, there will be a certain percentage of women who may need to live in shelters for women. The government cannot skirt the responsibility of building such institutions and run them on quality on par with the quality they have inserted into such institutions as the IIT, IIMs and NITs. After all, the majority of the students who come out from these institutions aim to escape from India, and the rest who remain in India, never think of giving even a part of the expenditure spent on them back to the nation. Astronomically huge amounts are spent on these institutions, which really do not lend any quality improvement to the common man of this nation, other than make them feel inferior.

Where will she go?

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

Here again the issue is of a spouse who has become a millstone on the neck. If her husband doesn’t want her, why the heck is she sticking on to him? Yet, the question of where will she go, if she is evicted from her house remains. That is a larger question. This question is intertwined with the question of how she will live with her husband, who doesn’t like her. It is like two persons living in a room, with a bitter enmity for each other. All these questioned are linked to the innumerable other issues, I have mentioned. Including the fact that there are no codes of family life in existence in India. Without that being there, there is no meaning of going in for an Act that wants to interfere into the insides of a family life.

Cutting off communication routes

18. Protection orders.—

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

This is again an issue that is not as easy as seen here. A wife has been persuaded by her parents and other relatives, her husband’s parents and other relatives, by her colleagues, or by some other dominating person to join an employment, which the husband doesn’t want her to do. Her family members have taken her to their house, or his relatives have arranged a different place of residence to her. How is he to communicate with her? Especially when the issue of domestic clash is caused by the interference of all these people. Before passing such an order, the judicial officer certainly has a moral obligation to ascertain the exact cause of emotional outburst. Other than that, the writer of this book has nothing more to say.

Strings of hierarchy and the outbursts: It may be good to say something about ‘strings of hierarchy’ that I had propounded in my book: Codes of reality! What is language?

In feudal languages, every person is part of a string of hierarchy. It is like the son of an ordinary man. He becomes a police constable. When he is at home, he is a very obedient son of his father. Yet, the moment he dons the attire of a constable, his whole focus turns towards his superior officers. His father is nowhere in this scene.

Similarly, when a wife is with her family members, such as parents, uncles etc. she is in a string of relationship wherein she is obedient to them all. Her husband is nowhere in this string unless he is also a subordinate in this string. When he is not a subordinate in this string, naturally the others will strive to keep his wife away from him.

His only way to get back his wife would be to communicate with her. Yet, when she stands in the external string and talks to him, her tone, voice, words, and such things will not fit in with her position as his wife. It can create outbursts from her husband, which in itself would be construed as domestic violence.

This much is for the judicial officer to bear in mind before making an order.

Violence on dependents and other persons of assistance

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

Here again, there should be an understanding that the husband has a claim on his wife. He can be bitter to persons who he feels are responsible for alienating his wife from him. Again, the other side can safely provoke him, with the understanding that he cannot do anything back, without being on the wrong side of the law. They would want to implicate him more securely. These are also the frill elements of the general partiality of this Act. The issue is that both things can happen. The husband may be an unruly person, or the wife’s side may be the unruly one. Yet, the law has only a one-side view. That is where the problem arises.

19. Residence orders.—

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

Provided that no order under clause (b) shall be passed against any person who is a woman.

Again the complete restrains are on the husband. Domestic Violence is between two persons. The husband may be in the wrong. Or the wife may be in the wrong. There is no mention in the Act that the wife can be directed to remove herself from the premises, and her relatives can be restrained from entering the shared household. Something is certainly wrong with the drafters of this Act.

And in the exemption given to women.

No restrains on the female’s side

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

The same goes here also. The wife is not under any such restraining orders. Quite strange. When it is a fact of life that some women can also be quite cunning, sly, treacherous, and capable as some of the males here.

The wobbling of the husband

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

There is no provision to restrain the wife from doing any of the things mentioned. Nor is she entitled to pay for the rent of her husband, if he is made destitute on account of this draconian law. Personally speaking I have seen a man literally begging on the roads, because of the great mental havoc caused on him by his wife moving off taking his children with her. An order on her to pay for the rent and food for the husband would have been good. For, when wife moves off thus, it is a tragic fact that most husbands would literally go mad with agony. She may have not liked to live with him. Yet, the fact that there had been a marriage in place, and that in that situation she is placed in a particular relationship with him cannot be denied. When she thus leaves, creating a deep vacuum in that location, the husband shall literally wobble. It is also true that other men would love see to another man go down. Yet, it might be the responsibility of judiciary to see that this man is given some monetary help by the wife who has left him for a better life, so to say.

Cordoning off the children from their father

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

In this passage, one does come across the satanic element in the drafters of this Act. For, the safety of the child is not the sole prerogative of the mother. The father also has the same level of love and affection for his children. To give a hint that the child is not safe in the hands of the father is a bit too much. Maybe it might be the personal experience of the drafters of this Act, wherein children are not safe with their fathers. Yet, that is not the common norm.

Here the aggrieved person’s child could also be the child of the respondent. The exception could be in the case of stepfathers. But then when stepfathers are discussed, why not the traditional understanding of stepmothers? That can also be discussed.

Police protection to the aggrieved

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

Even though this may seem a quite innocent and possibly a quite benevolent bit of lawmaking, the actual fact is that this could be the very opposite of the wordings in effect. In a nation, where even for getting police ratification for a Passport Application one has to pay money, extend obsequious ‘respect’ and also bear despoiling indicant words, the very hint of a police interference has all the elements of intimidation.

Monetary obligations to pay for the attacking side

(6) While making an order under sub-section (1), the Magistrate may impose on the m5

respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

What kind of nonsense is this? How can such one-sided wordings be inserted into the statutory law? It more or less limits the rights of the judicial officer to make a judicious ruling.

Imposing police terror

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

Again the terror and the intimidation that can force the husband to leave everything including children and run for cover.

On returning the stridhan or dowry

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

This has an element of reasonableness. Yet, there should be an understanding of how the wife’s share was spent. If it was utilised in any family venture that failed or was used up, in which both sides put in their resources, then the in issue of returning the dowry, that has to be taken into consideration also.

20. Monetary reliefs.—

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

(a) the loss of earnings;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

Again the problem here is the outrageously one-side view of the Act. Due to the family problem, the husband can also face loss of earnings, he can also face loss of property due to the belligerent action of the wife. As to maintenance for the wife, well this is necessary if she is not financially strong enough to live without it. Otherwise, it is an unjust ruling. As to the children, the father would naturally have the right and duty to see to their welfare, provided he is able to earn during the disquiet of a family dispute. The right of the father to visit and to have the children cannot be curtailed by this Act, for it is a thing that has to be studied from other aspects.

Appropriating the money from the husband

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

The items mentioned here is good, provided, the wife is otherwise financially able to live on her own. If she is living with her wealthy relatives, who then enjoy her presence with them, then the question of forcefully taking money from the husband and giving her has to studied in detail. If she is really in an unenviable situation, then this may be warranted. Otherwise it might be just a gesture to harass the husband through legal means. For, if the wife’s family is rich, naturally they have more access to more powerful judicial and police actions.

Arbitrary custody of children

21. Custody orders.—

Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:

This is a part of the law that is totally irresponsible. The child is connected to both the father as well as to the mother. Even in the case of the mother having conceived the child through an extramarital affair, about which the husband is totally unaware, the fact remains that the feeling of being the father really brings in deep-rooted affection, attachment and love. Even if at a later day, it is revealed that the child is not the husband’s biological offspring, the attachment cannot be severed.

Now, it is a fact of life in India, and more or less emphasised by the severe partiality to the wife in this Statutory Act, that females have less social interaction, social mobility and possibly less physical stamina as compared to a male. Whereas the male can take a child for swimming, jogging, long distance travel, travel at night and such things, most females are not able to do anything like that. Moreover, they suffer from their own self-inflicted and also their own family-inflicted inferiority complex. So, it naturally follows that the father is a better person to accompany the children, provided he has the amenities to provide them with food and other conveniences.

It is true that there are an immense number of females in India, who can do these things on par with or better than men. However, they are not the general case. Now, to impose such a clause in which the children can be taken away from the father, just because of a fight between him and his wife, is a totally one-sided draconian input. It is an act that can literally make the father go crawling. For, his children would be in the hands of his detractors, who would not only talk bad things about him, but also use the lower grade pejorative indicant words to degrade him in the minds of his children. It is a totally unacceptable clause, which no judicial officer with some moral courage and conviction can enforce. For, there is no clause in the Act which gives a similar right to the father.

Moreover, there is no provision in the Act that says that the opinion and choice of the children in this regard should be taken into account.

Insinuation that the father may harm the children

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

This is again a very much a point that deserves deep study. What is the harm that is alluded to? For, if the father is really harming his children, then is there any need for this specific clause? For if is proved, the judicial officer is obliged to give the appropriate order.

But then what about the idea that the attachment with the mother may harm the children? If the other clause is there, why not this clause also? Isn’t it all not a bit of irresponsible law writing?

Compensation for causing emotional distress

22. Compensation orders.—

In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

Mental torture is quite a common phenomenon in India. It is there in the very varying grade of indicant words in the vernacular. Accusations of various items are mental torture. Yet, it is not a one-sided affair. The wife or husband going off in the night time without explaining to the other as to where she or he was is a terrible mental torture. Being in the company of persons, who the spouse doesn’t like is mental torture. Working with or for another person, without the spouse’s permission or liking is mental torture. Speaking in glowing terms about persons who the spouse doesn’t like is mental torture. Saying that the he or she will sleep with another person disliked by the spouse, just to spite the other is mental torture. Keeping a mobile phone without the knowledge of the spouse is mental torture and deceit. Being on talking terms with enemies or persons who the spouse doesn’t like is mental torture. Using non-verbal signals of disregard or disrespect is mental torture. The wife using lower indicant words to and about the husband is mental torture. However, in Indian language customs, it is not mental torture when the husband uses the same on his wife. So much is the understanding about mental torture among so-called legal luminaries, who have seen these kinds of mental torture.

Now, mental torture is not one-sided. When one side does it, the other side will reciprocate appropriately. However, the Section mentioned above is totally one-sided and thus legally non-tenable. If compensation is being contemplated upon, then the husband can also claim the same.

Ex parte orders based on affidavits given by the wife

23. Power to grant interim and ex parte orders.—

Comments

This section provides for grant of interim orders by the Magistrate. He may also pass ex parte orders on the basis of affidavits given by the aggrieved person.

It is an okay law, provided the other aspects that suppress the respondent are not there. For example, the terror of police arrest, and harassment, just on the basis of a complaint; the unequal and biased nature of the statutory Act and such things make this arbitrary action, totally non-justifiable.

26. Relief in other suits and legal proceedings.—

(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

The issue here is that all references to relief are mentioned only for the wife’s side and no such aspect is there for the husband. Where is justice and application of the basic tenets of jurisprudence in this Statutory Act?

Breaching the court order

31. Penalty for breach of protection order by respondent.—

(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

Naturally the breach of a court order is a penal offense. However, the unfair nature of the Act and the presence of such provisions such as that the respondent can be denied access to his children and that his detractors will have free possession of them are also things that can make a person attempt a breach. For any father with some attachment to his children, to see his children in the hands of his enemies would be a very emotionally upsetting thing.

Moreover the fact that his wife’s parents’ and others0 do not accept the fact that he is the lawfully wed husband just because he is not subordinate to them, is another disquieting thing. He is not allowed communication with her, while others do have.

Before judiciary makes a ruling in such cases of breach of order, it would be wise to seek if the wife is simply acting at the behest of her family members who do not want a person who is insubordinate to them, as her husband.

32. Cognizance and proof.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.

(2) Upon 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.

Both these clauses simply give a terrible power to one side of the parties involved in the conflict. The second one is quite an utter nonsense.

33. Penalty for not discharging duty by Protection Officer.—.

If any Protection Officer fails or refuses to discharges his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

The Act is certainly meant to send shiver down the spine of men who are going to get married. As for the other side, they are eligible to get a subordinate serving person, who if he is non-obliging, can very well end up in prison.

34. Cognizance of offence committed by Protection Officer.

No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it in this behalf.

Section 39- Cognizance of offence committed by Protection Officer.

34. Cognizance of offence committed by Protection Officer.-

Section 40- Protection of action taken in good faith.

35. Protection of action taken in good faith.-No suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.

First see Section 34: This is just a typical stand of self-preservation that all government employees who can do draconian acts aim to get. For example, in a particular state, then ruled by the communist party, the Sales Tax officials were acting in a terribly dictatorial manner. They would threaten the helpless traders with huge penalties, sometimes amounting to crores of rupees. On payment of a sizable amount as bribe the tax penalty would be brought down substantially. However some of the traders, instead of paying bribe, did go in for appeal, and had the penalty repealed. After that they gave cases in the courts for harassment. Immediately the Sales Tax officials, most of them in the communist Trade Union, appealed to the Chief Minister. Before long an amendment was affected to the Sales Tax rules. As per that no legal proceeding could be taken against a Sales Tax official for anything he had done in the course of his duties, including imposition of excessive penalties. Moreover more powers of search and seizing were accorded to them.

So this Section cannot be attacked as part of the Protection of Women from Domestic Violence Act. Whatever can be said about this only comes under a general critique of the officialdom and their powers.

Section 39 is also more or less corollary to the ideas in Section 34.

Section 40, more or reemphasises Section 34

Now that we have gone through certain items of the Act itself, let us go through some other connected items.

Previous Next

0. Book profile

1. Introduction

2. The concept of equality

3. What the Act enthuses

4. Leadership in the wife

5. Verbal and non-verbal abuse

6. Wife working for another person

7. The fervent theme of male-female equality