Posts Tagged ‘laws’


Guest post by Neha on domestic violence, the law, its application and how to defend yourself if falsely accused.
DISCLAIMER: THIS POST SPEAKS ABOUT ONE OF THE MOST SENSITIVE TOPICS – DOMESTIC VIOLENCE. I INTEND TO COVER ALL THE IMPORTANT ASPECTS RELATED TO THIS TOPIC WHICH INCLUDE LEGAL ASPECTS, JUDICIAL ASPECTS, ADMINISTRATIVE ASPECTS AND FACTS. THE VIEWS POSTED HERE ARE PURELY MINE. I REQUEST YOU ALL NOT TO GENERALIZE THEM AND ACT PURELY BASED ON THEM.
Part – 1. The Law

So many bloggers on this blogosphere have written something related to women suffering from physical abuse by her husband, so many newspapers and news channels report various news about dowry death, or torturing a woman to an extent that she decides to end her life rather than living in such a terrible state. Such cases which catch the public eye through the medium of media are very few. The numbers in the limelight are not even 10% close to what is actually reaching the stage of a police complaint against the accuse (which is a husband always, that is what I have seen at least). Additionally, there are very few people (again, usually women) who actually file a complaint against the party who has been accused of physical abuse, mental torture and/or dowry demand. Most of them prefer to keep quiet about this due to various reasons like family and society pressure, no or minimum financial support, future of kid/s , inefficiency of legal system and so on and so forth.

My intention for writing this post is not to give anybody a negative picture of either the judicial system or the administrative system. I simply want to put forward the picture that I have seen so far in my practice. I have never been directly involved in these matters – in a lawyer’s term, we call it family court practice – but, I have referred to, studied and come across many such cases that fall within the purview of domestic violence.

Earlier, there was only one section – Section 498-A of Indian Penal Code (popularly known as IPC) which protected a woman who had become a victim of domestic violence by her husband or his relative/s. But in the year 2005, a new law – The Domestic Violence Act, 2005 was enacted that specified the smallest of detail that can cause torture and/or physical as well as mental harassment to a woman.

What does the Law say?

Our Judicial system considers the harassment of the women as a criminal offence. Section 498A of IPC says that: S/498-A – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this section, “cruelty” means:

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.

Definition of domestic violence.- For the purposes of this Act, 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

(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

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

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

(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

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

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(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.

Explanation: II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

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Part 2. Applicability of the Law – The Process 

1. The procedure for filing the complaint against the accused is that the victim can go to the police station nearby and file the complaint.

2. This offense is a non-bailable offense. To get the bail, the accused has to be presented in the court in front of the judge.

3. This offense is a non-compoundable offense. That means the complaint once filed cannot be withdrawn by the complainant or her relatives.

4. It is a cognizable offense. That means the complaint has be registered and investigated before making any arrests.

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The first part of this post spoke about the legal aspects of the Section 498 – A and Domestic Violence Act. My intentions for this post are not only to give information about how law works and protects you, but to give you a general guideline on how few precautionary measures can help you to protect your and your family’s interest when any kind of a case is filed.

Applicability of the Law – The Practice 

In case of complaint filed under Section 498-A and Domestic Violence Act, the usual practice that has been followed is:

1. Whether to lodge the complaint or not, it depends on which party is stronger – the accused or the complainant.

2. Even though it is a cognizable offense, in most of the cases the arrests are made immediately after the complaint is lodged. There is no investigation made before arresting the accused party/ies.

3. Stronger the lawyer, stronger the case. Here I am not talking about a knowledgeable lawyer, but i am talking about influential lawyer. It is easy to know the law. A fresh graduate fighting his/her first case can also help you out in these matters, but when there is a question of getting a bail at the earliest, or making sure that the case gets sorted out as a settlement between two parties, you need a good and influential lawyer. That time it does not matter whether you are right or wrong. All that matters is who is your lawyer.

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If you are falsely charged with a case on domestic violence, the points mentioned below are the measures you can take when framed or before being framed:

1. Enter into a Prenuptial Agreement (Prenup) before marriage. Prenup is a declaration saying that neither of the parties has demanded or given any dowry. The jewellery, articles, clothes, vehicles etc. all are given to the girl as a gift by her parents and/or relatives. (If any of you require a prenup copy, then please mention that as a separate comment along with your e-mail id. I will send it to you and not publish the comment containing your id.)

2. Get the prenup duly signed and executed by the parties. Further, two witnesses each party must sign the Prenup as well.

3. Make a list of the articles brought in by the girl at the time of the wedding. The girl has a de facto (actual) right on Stridhan. Stridhan means and includes property inherited by the woman from her family or husband’s family; property received by her under a compromise, adverse possession or in lieu of maintenance; property obtained in partition; and property bought using proceeds from stridhan. However, gifts to the husband by the woman or her relatives will not be part of her stridhan.

4. Evidence plays a very crucial role when a complaint is filed. It can convict the innocent and evict the guilty. Thus it is highly recommended to keep all the documents viz. Marriage certificate, bank statements, Prenup, the list of the gifts received at the time of the wedding, wedding pictures, bills etc. Safely, copy them all and get the marriage certificate notarized so that both the parties have the valid copy of the same.

5. When a woman is physically abused, she should go to the doctor immediately, get the treatment and certificate mentioning the specific reason for the injuries from him. Here, it is highly recommended to go to a government hospital for the treatment as the certificate issued by the government hospital has a stronger legal stand. This point can be raised by a man who has been framed wrongfully by a woman when the case comes in the court. It may or may not help, but can be useful.

6. When a physical or verbal abuse is happening, start screaming and alert your neighbours. This can help you to get witnesses when you do not have sufficient evidences to prove your point. Further, it may help to avoid the damage being done further.

7. The moment you get the idea that there may arise some problem regarding any general or a specific issue; consult a lawyer before hand rather than waiting for the problem to take over first. This will help you maintain peace of mind and nerve when in trouble.

8. If possible, install the recording, itemized bills and caller id facilities on your landlines and mobiles.

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I don’t want to write, not a single word.
I want to say that there is nothing more to be said, after the Guwahati incident.
But unfortunately, we will move on. Even this shameful terrifying incident will not change anything.
We will close this chapter and again read feverishly about girls getting scholarships, flying aeroplanes and breaking the glass ceiling.
We will want desperately to believe that all this is the truth and will lull ourselves into this belief.
For a while , till another ‘Guwahati’ happens.
Because it will.
And this time we cannot blame the government, too bad but there it is.
We have only ourselves to blame so naturally that door is closed, as we are cowards.
Mental cowards who cannot face the truth and physical cowards who cannot protect the weak.
Women are not weak per se I want to say this but can’t in all truthfulness.
Deterioration of status of women is being seen and felt by each one of us.
I have always maintained that the day is not far off when women will become commodities again.
Don’t think!
Don’t introspect!
Don’t analyse!
Just STOP accepting the unacceptable right now.

Otherwise be prepared for the return of auction block and sale of women as slaves.


This link was forwarded on my Twitter account. Important laws have been mentioned that we must all learn by heart.

 

All the sections of the Indian Penal Code, 1860 mentioned below are the ones under which (according to media reports) the Guwahati goons have been booked; all these sections of the IPC are bailable, that is, the accused have the right to be released on bail, and that the accused need not be forwarded to a court to seek bail, an officer in-charge of a police station can bail them out after seeking a personal bond and/or surety from them. Even some traffic violations are looked at more seriously by the law….more at link below

Molest, And Get Away | Women’s Web: Online Community For Indian Women.


Guest post by Saikat Kundu:

 

Sexism in India refers to beliefs or attitudes in India that one gender or sex is inferior to, less competent, or less valuable than the other.

Discrimination and violence against women is prevalent, and sexual harassment at the workplace and lack of education continue to be identified as major problems.

Gender inequality, which is the devaluation of women and social domination of men, still continues to prevail in India.

Women are usually deemed as dowry burdens, the weaker gender, and worthy of a lower social status compared to men.

This subject raises the cultural aspects about the role of a female child in society, what her human rights are as a human being and a number of sensitive issues.This issue is important because there is nearly universal consensus on the need for gender equality.. Gender based discrimination against female children is pervasive across the world.

Sex selection of the before birth and neglect of the female child after birth, in childhood and, during the [teenage] years has outnumbered males to females in India and also in countries like Pakistan, Bangladesh and South Korea .

As per ?? 105 women per 100 men in North America and Europe but there are only 94 women per 100 men in India and other Asian countries like China and South Korea.

Domestic violence against women in India is a big problem.

For example, a paper published in International Journal of Criminology and Sociological Theory shows that in 2007 there were 20,737 reported case of rape, 8,093 cases of death due to dowry, 10,950 cases of sexual harassment with total crime of 185312 A U.N. Population Fund report claimed that up to 70 percent of married women aged 15–49 in India are victims of beatings or coerced sex.

In 1997, in a landmark judgement, the Supreme Court of India took a strong stand against sexual harassment of women in the workplace.

The number of girls born and surviving in India is significantly less compared with the number of boys, due to the disproportionate numbers of female foetuses being aborted and baby girls deliberately neglected and left to die.

Compared to the normal ratio of births, 950 girls for every 1000 boys,most states of India, especially Harayana, Mumbai and even Indians in overseas, are not meeting the standard,supported by the steeper child sex ratio, which can as low as 830 to 1000 boys.

India has a low sex ratio, the chief reason being that many women die before reaching adulthood.

It is therefore suggested by many experts, that the low sex ratio in India are attributed by female infanticides and sex-selective abortions.

Even though gender selection and selective abortion were banned in India under Pre-conception and Pre-natal Diagnostics Technique Act,in 1994,the use of ultrasound scanning for gender selection continues.

Other institution effort,such as releasing advertisement calling female feticides a sin by the Health Ministry of India and annual Girl-child day, can be observed to raise status of girls ans to combat female infanticide.

Female feticide will decrease the population of female and further skew the sex ratio of India.

In 1961, the Government of India passed the Dowry Prohibition Act, making the dowry demands in wedding arrangements illegal.

In rural India girls continue to be less educated than the boys.

According to a 1998 report by U.S. Department of Commerce, the chief barrier to female education in India are inadequate school facilities (such as sanitary facilities), shortage of female teachers and gender bias in curriculum (majority of the female characters being depicted as weak and helpless vs. strong, adventurous, and intelligent men with high prestige jobs) The Prime Minister of India and the Planning Commission also vetoed a proposal to set up an Indian Institute of Technology exclusively for females.

Although India had witnessed substantial improvements in female literacy and enrolment rate since the 1990s, the quality of education for female remains to be heavily compromised as the country continues to hold greater value for male than female.