Can a respondent in dv act proceeding be exempted
Guest
(Querist) 27 December 2015
This query is : Resolved
1. I am assisting a lady who has filed complaint for seeking residence order to magistrate. These proceedings are u/s 12,18,19,20
The DV act clearly mentions that proceedings under above sections is deemed criminal procedure code.
The magistrate has exempted one of 4 respondents form personally attending court. Can magistrate do this? Why and on what grounds.
2. Can in any civil proceedings in a court court can force any witness to testify, if the witness is not coming for evidence?
S.B.adil rahman
(Expert) 27 December 2015
Yes. The cases under D.V Act are dealt in accordance with Cr.PC and in some cases the court may have his own rules/procedures for dealing such cases but if the court makes its own rule or procedure then it will be applicable on all the cases of D.V Act being heard in that particular court and not in any specific case of D.V Act being heard in that court. Here the Magistrate may dispense the personal appearance of the respondent u/s 205 Cr.PC. There is nothing wrong with it.
Rajendra K Goyal
(Expert) 28 December 2015
Magistrate can dispense with the personal appearance, if not satisfied go for the appeal.
2. Court can call the witness to testify.
Dr J C Vashista
(Expert) 30 December 2015
Dear Dr. Gupta ji,
1. Protection of Women from Domestic Violence Act, 2005 is a unique legislation wherein the trail court may adopt either of the Code i.e., CPC or Cr. PC or both. Besides this, the Court may adopt its "own" procedure to grant relief to the aggrieved person.
2. Exemption from personal appearance of "any" or "all" (except husband) respondents can be granted by the Court u/s 205 Cr.PC.
3. You will find there is no provision for application/grant of bail in the said Act. Moreover, none of the provision exist to specify or catagorise the accusation as "bailable" or "non-bailable".
4. As experienced the legislation is being misused by so-called "aggrieved person" in the very similar way as that of provision of Section 498A IPC and the same require to be revisited and reviewed immediatly.
Regards
Guest
(Querist) 30 December 2015
@Dr Vashista. Thanks for elaborating. But I don't think domestic violence act can be absurd. By your own findings on DV Act that it is semi criminal in nature and there are no provisions for arrest /bails etc. So how any one can misuse it?
A lady can go to magistrate for additional and quicker remedy for any of the following:
1.Protection against violence
2.Residence order if expelled from house
3. Seeking maintenance for self and child
if applicable
4. Monetary compensation for mental and economic losses
5.return and protection of her dowry and stridhan
How these provisions can be misused by her against her husband/relatives of husbands
Even China has 2 days ago promulgated D V Act with 72 hours order to be given in court. And Chinese mean it. Here in India I have met ladies in court taking rounds for 1 year 2 year without any relief granted.
Instead of criticizing the Act which is always good intentioned ( Has to be ) we should examine role of lawyers and judges in lax and snail paced justice.
I would like to ask why any lady seeking residence order should wait for 1 year to seek a remedy from magistrate
Who is abusing ACT? The courts or complainant?
I have seen almost civil nature proceeding adopted by magistrates in Delhi metro. Application, reply, replication evidence.... looks as if some civil trial is going on.
Whereas DV act provides only- Form II accompanied by Form 1 filled by PO for DIR. And for section 23 interim relief only affidavit in form III ( 11 points is required) But judges dilly dally and avoid passing interim order
My observation that this great legislation is being abused by some advocates and mainly magistrates themselves and therefore our Government should act tough.
I have given detailed observation as you are a senior lawyer with very clear focus and analysis ability. Kindly consider above points and give your advise as to how to speed up remedy in this ACT
Based on observation I shall prepare policy paper for amendments of procedures and time bound judgement to CJI and Chairman Law Commission and start a campaign.
Nadeem Qureshi
(Expert) 02 January 2016
Dear Mr. Gupta
The word used by you are very impressive in theory, by practically it is very difficult to implement, for example when a women file a complaint against her husband and in-laws and claim all the mentioned relief along with an application u/s23 of Act for ex-parte Interim Order then it is the duty of the counsel or complainant to satisfied the court to pass an ex-parte interim order, otherwise the court is neutral and without giving an opportunity to opposite party how the court should pass an order, because in many cases the Hon'ble SC and HC held that at the time of passing ex-parte interim order the court should also think about the rights of the others.
Nadeem Qureshi
(Expert) 02 January 2016
Dear Mr. Gupta
The word used by you are very impressive in theory, by practically it is very difficult to implement, for example when a women file a complaint against her husband and in-laws and claim all the mentioned relief along with an application u/s23 of Act for ex-parte Interim Order then it is the duty of the counsel or complainant to satisfied the court to pass an ex-parte interim order, otherwise the court is neutral and without giving an opportunity to opposite party how the court should pass an order, because in many cases the Hon'ble SC and HC held that at the time of passing ex-parte interim order the court should also think about the rights of the others.
apart from the above, how will the court satisfied that the complaint's version is true or not? there is no parameter with the court or lawyers to know the true facts of a family, it may be possible that the complainant tell a lie on oath to get the benefit of the Law which is completely in her favour, there are many cases in which the court dismissed the complaint due to not proven the case after completion of trial.
Only filing the complaint can not be proved the version of the complainant and right to hearing is also a fundamental right of the other party and it may be possible that due to lack of opportunity the rights of the opposite party may be violated by the court.
interim Order may be passed by the court u/s 23 of Act but if the court satisfied with the version of complainant and also the court think fit and proper to pass an order.
the burden of cases can not be hide and think if we are judge and we have to pass an order then it is our duty to give justice and not passed any order which is based on our opinion only without knowing the detail facts and circumstances.
it is true that many of the victim who fight the true and real case will also be feel aggrieved by the court procedure but as per Indian Law it is right and many of the cases where the complainant filed her complaint and argue the matter on her ex-parte application and the court is also satisfied with her version and necessity, the court pass an ex-parte interim order on first date of hearing.
Suggestions:
1. the case should be decide within one year.
2. the interim application should be decide within 3 months from the receipt the summon by respondents(In the case of Kusum Sharma Delhi high Court passed these type of direction).
Guest
(Querist) 02 January 2016
Thanks Qureshi sir
What proof lady has to give for residence order?
Starvation, turned out of home, physical violence and basic needs are something that don't need any proof.
If she was or is living in home and being removed from there what proof is required to satisfy court?
In such laws if interim relief is not given they are meaningless just like consumer protection act where company keeps making appeal after appeal and money is deposited in court and not given to consumer . So consumer looses more money and case keeps hanging right up to SLP and if SLP is admitted regular hearing in supreme court. This is pure farce and injustice and fraud in name of justice.
If some lady says she needs to live in her matrimonial or shared home what is to prove there? Respondent has to show that she is lieing and she already has a separate home where she is residing? What do we want? She first take a house on rent or buy a house and then file residence order complaint? or remain or road while court sleeps and gives dates? That is funny.
In One judgement supreme court themselves have recognized that right of residence is superior and urgent to right of maintenance because person needs some roof to live under.
I think it is not enough to generalize that ladies lie in court. if she already lives in her shared accommodation why she will file a complaint? What she gets out of all this?
I have explained at length to highlight one aspect of D V Act. Courts are duty bound to decide in 60 days once complaint along with DRI is filed. PO is court appointed officer and she checks that lady needs residence and is removed from there then only she writes DIR.So court are disbelieving there own appointee? Tomorrow court will not accept a commissioner's report who is a lawyer appointed by court.
So I think we need to deeply think and try to bring out lacunae that is giving injustice rather than justice.Sweeping remark that women are abusing law is not tenable and neither correct
Dr J C Vashista
(Expert) 03 January 2016
We are digressing from the query of author.
Dr. Gupta has a very valid and genuine point to be taken up in appropriate forum but not on this platform, otherwise it would be an unending and non-stop thread wherein we (the experts) have to take care of almost all queriests failing which the very purpose of this site/platform shall be defeated.
