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KNK A Learner (Learning to share)     04 June 2013

Can a widow file domestic violence against husband relatives

Can a widow who was living away from in-laws and husband relatives file DV Act case against husband relatives for emotional blackmailing, harassment and economic abuse with proofs

Thanks in Advance



 19 Replies

Advocate Deepak Gupta (Lawyer)     04 June 2013

Definitely  widow may file DV case against husband relatives .

stanley (Freedom)     05 June 2013

I disagree with Deepak Gupta 
 
As per the DV act section 
 
(f) "domestic relationship" means a relationship between two persons who live or have, at any 
point of time, lived together in a shared household, when they are related by consanguinity, 
marriage, or through a relationship in the nature of marriage, adoption or are family members 
living together as a joint family;
 
The above author has clearly stated that they are living away .Secondly women can claim econimic abuse from their husbands and not the family members .
 
The above author would have to state the facts clearly 

Prashant Ghai (Advocate) (PrashantGhai.com)     05 June 2013

I believe she may file a DV case through a cleverly drafted comlplaint, but then, everything rests upon proving the allegations. Anybody can write anything in a complaint, ultimately it boils down to satisfying the court of law.

 

www.advocateprashantghai.com

stanley (Freedom)     05 June 2013

@ Prashant 

Even in case she files a cleverly drafted complaint what type of reliefs can she get under the guise of a protection order

Can she claim right to residence in laws under section 19 of the DV act  if the house is not in the husbands name nor it is the matrimonial house of the couple ??

can she claim maintanence under section 20 of the Dv act from in laws ?? 

Can she claim custody under ection 21 of the DV act when the children are not living with the in laws ??

So i presume the Answer would be a big........................................................... NO 

Prashant Ghai (Advocate) (PrashantGhai.com)     05 June 2013

@stanley: Like a clearly said, anybody can file anything, it's all about succeeding in the court of law. Which is not going to happen if the facts and circumstances do not support you in the court of law.

2 Like

Advocate Deepak Gupta (Lawyer)     05 June 2013

Sir kindly carefully  read the domestic relationship defination ,  also  meaning of aggrieved person . sec 18 ,

Tajobsindia (Senior Partner )     06 June 2013

1. Yes.

2. The Magistrate can issue restraint orders against them [widow's In Laws herein] and also compensation orders. This is Law in hand.

3. Petition writers 'drafting skills' not required for such wizardry submissions as the Bharat Ratna DV Act itself is very much 'cleverly drafted'. This is how pleading evolves till SC settles such quasi-civil disturbences and for the same 'fighters for the larger cause required' and not 'fighters for my own case shouters required'.
Reasoning:
A.
When a widow is having a common household with a relation of her husband, the relationship between the widow and the other person is a relationship by marriage which is how such cleverly draftings are plead.  If she is subjected to domestic violence, the widow can file a complaint under the Act before the Magistrate or file a report before the Protection Officer or present statement before the Service Provider.
B. An Aggrieved person (i.e. widow herein); When the [continuing means still living or has been living at any time during subsisting marriage] relationship is traced through her late husband, the widow is an aggrieved person who can complain against both his [means late husband’s] male and female relatives.
C. For understanding aforesaid reasoning one has to refer to cleverly drafted Rule 6 (5) of the DV Act;

The relevant part of Rule 6 (5) runs thus:

“6. Application to the Magistrate. -

(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under in S. 125 of the Code of Criminal Procedure, 1973 (2 of 1974).”

Consequently under Rule 6(5) the order passed U/s.20 upon an application made U/s.12 would have to be enforced in the manner laid down in the S. 125 of the CrPC.

Remedy:-
In-laws should [have] encouraged her re-marriage the moment son dies !
Reasoning:
The Bharat Ratna DV Act is in existence since 26-10-2006 and if [all those] reference in-laws claim that they do not know such of such Law(s) in existence then it is nobody’s case made out !!

4. Also refer to my earlier replies to queries 'A widow is liable to be maintained by In-Laws' while replying to S. 125 CrPC specific instance usage reference queries in LCI forum discussions. Those are the pleadings that worked best till date in favour of nations 'widows'.

1 Like

stanley (Freedom)     06 June 2013

Originally posted by : KNK A Learner

Can a widow who was living away from in-laws and husband relatives file DV Act case against husband relatives

@ Tajobs the Author of the post has clearly stated living away ?? Maybe at the time of marriage or after that 

Where as you have put in you 

Reasoning:
A.
 When a widow is having a common household with a relation of her husband, the relationship between the widow and the other person is arelationship by marriage.

Hence the reason for Common household is out of question with the author of the above post .

C. For understanding aforesaid reasoning one has to refer to cleverly drafted Rule 6 (5) DV Act;

My lord the word Cleverly drafted laws/rules  should be replaced with Gender Biased Laws / Rules or poorly drafted laws  :/

 

1 Like

Advocate Deepak Gupta (Lawyer)     06 June 2013

Stanley Sir,  kindly emphasize on Comma using in defination - " at any point of time" 

1 Like

stanley (Freedom)     06 June 2013

@ Deepak a good debate .

I do agree on any point of time .Now take  into consideration the ifs and buts with the below judgement that too in consideration with a wife leave aside the in laws and what would be the outcome .Now days any Teena , Meena and Diga  files flase DV cases . I would state that the poorly drafted law states within 60 days reliefs has to be provided now tell me in reality as per the proceedure does it happen is my question :/

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 160 OF 2011
Sejal Dharmesh Ved .. Applicant
Vs.
The State of Maharashtra & Ors. .. Respondents
Mr. Amit S. Dhutia i/b Niranjan Mundargi for the Applicant.
Mrs. A. A. Mane, APP for Respondent No.1­State.
CORAM : MRS. ROSHAN DALVI, J.
DATE : 7th MARCH, 2013.
P.C.

1. The applicant­wife has challenged the order of the Court of Sessions at Greater Bombay dated 27.10.2010 holding that her application under the Prevention of Women from Domestic Violence Act, 2005 (D.V Act) is not maintainable because she was not in any domestic relationship.
2. The applicant married on 04.05.1999. She lived with her husband in the US. There are two issues from the marriage. She returned to India on 11.02.2009.
3. She filed her application under the D.V Act on 18.01.2010.
4. The learned Judge has considered that under these circumstances, she having come to India in February, 2009 and having filed this application in January, 2010, there was no domestic relationship between the parties. The learned Judge has considered the definition of domestic relationship. Of course, that relationship is defined to be one of which the party then lived and had earlier lived. That would be during the subsistence of the union between them. The application under the D. V. Act could be filed, when the marriage union subsisted. That having came to an an end and long after the physical relationship came to be an end, she having returned to India, she cannot be taken to be living in any domestic relationship in India.
5. A wife who lived in a domestic relationship earlier, but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act.
6. A wife who has returned from the USA and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time. Such wife cannot be taken to be in any domestic relationship. The order of the learned Judge is, therefore, correct. The writ petition is completely devoid of merits and accordingly dismissed.
(ROSHAN DALVI, J.)

Advocate Deepak Gupta (Lawyer)     06 June 2013

Sir , SC , HC judgement are based on evidenc of particular facts , and it is  not compulsory applicable on every case , it only applicable were the facts are same .

Kindly consider the entire fact of above judgement  , especially para-5 . Above judgement cant overruled " at any point of time " . 

We r the part of society , now kindly consider the social aspect of 498A , DV Act , when sister file , entire family support it ( Define- Use ) , when wife file against husband and in-laws we oppose it ( Define -Misuse) . laws are always for the benefit of the society , it is upto us how we use it . Just imagine the  survival situation of women  in society if 498A ,DV are not with them ( when difference between husband and wife , and  both parents  ) . Because of complicated procedure time frame relief not possible .

stanley (Freedom)     06 June 2013

Originally posted by : Advocate Deepak Gupta

 Just imagine the  survival situation of women  in society if 498A ,DV are not with them ( when difference between husband and wife , and  both parents  ) . 

 

Please go through a comparsion / write up by Tajobs a few months ago as below please do not have sampathy for gender biased laws . Also imagine due to no of false cases of 498 A how the husbands mother father son daughter and their siblings have to undergo imprisionment till anticipatory bail is granted .

 

Does not our constitution talk about equality 

 

RULE OF LAW*
Constitution of India: Article 14. “Equality before law. – The State shall not deny to 
any person equality before law or equal protection of laws within the territory of India.”
 
So where has this equality before law disappeared under the DV act 

 

Does Marriage in India provide EQUAL RIGHTS TO WIFE AND / OR HUSBAND?


Gender Arsenal is all about the uncalled for Gender War which has been initiated and is being fuelled by reasons outside the purview of this article. Gender Arsenal pertains to the weapons available to both the genders in the war. Before going into the actual details about the arsenal, I will elucidate the positions of the two genders vis-à-vis each other.


National Commission for Women (NCW) came into effect in 1992 in 
India to work on women’s issues. NCW has been instrumental in making awareness about a lot of problems faced by women, and has recommended various legal and social options to redress them. It also looks into complaints received by women. Additionally women have around 3300 odd NGOs working for them, one union ministry and Rs. 1200 crores allocated for their cause annually from the union budget.


Men have none.


I will now proceed to list down some laws meant specifically for women,

1.                                S. 498A of the Indian Penal Code (IPC): This section is formulated for married women who face
               physical and mental harassment from husband and in-laws and the cruelty is made for any unreasonable
               ‘demand’ (mostly dowry) from the woman and the cruelty is of such nature that it drives the woman to
               commit suicide or can be a danger to the life and limb of the woman.

2.                                S. 354 of the IPC: Assault or criminal force to woman with intent to outrage her modesty.

3.                                S. 509 of the IPC: Word, gesture or act intended to insult the modesty of a woman.

4.                                S. 375 and 376 of the IPC: Rape of a woman.

5.                                S. 498 of the IPC: Enticing or taking away or detaining with criminal intent a married woman

6.                                S. 98 of the Criminal Procedure Code (CrPC): Power to compel restoration of abducted females.

7.                                S. 125 of the CrPC: Meant to provide no-fault maintenance to wife from husband.

8.                                S. 24 of the Hindu Marriage Act, 1955 (HMA): Though gender neutral, is largely used by women   
                to extract maintenance from their husbands in pendency of a divorce.

9.                                S. 25 of the HMA: Meant to provide alimony to women from divorce.

10.                             S. 18 of the Hindu Adoptions and Maintenance Act: Another provision for maintenance to wives.

11.                             Dowry Prohibition Act, 1961: Though gender neutral in its definition, this Act is largely used to protect
                women and there are also some judgments for cases filed under this Act, which are gender biased
                towards women.

12.                             Immortal Trafficking Prevention Act: Deals with trafficking of women.

13.                             Indecent Representation of Women Act: Title is self-explanatory.

14.                             Medical Termination of Pregnancy Act: Empowers women to abort their unborn children legally.

15.                             Protection of Women from Domestic Violence Act: Meant to tackle Domestic Violence faced by
                wife (husband mother is not considered as wife even if his father is alive! + husband’s married sister is
                also not considered as wife though your BIL is alive!).


These are some of the laws and Acts made to protect and empower women true to the best of my knowledge; I might have missed a few of them. However, these are only illustrative and not exhaustive of the fact that women are not only over-protected but pampered in this so called Male Dominated Society, [click link] whereas men do not have even a single NGO funded by the Govt. to be fighting for men’s cause let alone any law, section, Act or a commission or a ministry.


It should give a fairly clear idea as to how unequally men and women are placed in this gender war wherein actually men are dragged into uncalled for. On one hand, where women have weapons to the tune of Surface to air missiles [click link] to their kitty as their arsenal, men do not even have aRampuri Chaku [click link] at their disposal.


And, as I said, the list is merely illustrative and not exhaustive; NCW has in its offing more laws to castrate men, some of them being,

1.       
                         
Compensation of upto Rs. 2 Lakhs to rape victims [refunded by Women and Child Development Ministry].

2.                                Sexual Harassment Bill.

3.                                Workplace Harassment Bill.

4.                                Law to protect Maids and so on and so forth…………...


Again the list of prospective laws is also true to the best of my knowledge and I might have missed many others in the offing and or or have written in one very old post serially how many laws are there for our Bahu’s [dig that earliest post and help yourself counting].

Whilst there are neither any laws existing to protect men, nor in the offing, and the simple reason for this is, men do not fight for their right or stand up for other men who are fighting for men’s rights.

And if things continue this way, the day won’t be far when NCW will come up with a law like this one:

Inherent Protection of a Woman’s Dream Act: Any woman, who complains against a man that the man entered her dreams and molested her/outraged her modesty/raped her, shall be tried with a relevant section of the IPC. Any married woman who complains against her husband and in-laws that they entered her dreams and demanded dowry from her or harassed her and assaulted her for not bringing enough dowry shall be charged with IPC S. 498A/Dowry Prohibition Act/Protection of Women from Domestic Violence Act etc.

Tajobsindia (Senior Partner )     06 June 2013

1.    I disagree to @ Stanley’s wrong quoting of my own old article in this reference query. I also disagree to @ Stanley’s wrong quoting of my own earlier placed Mumbai HC Judgment herein in a discussion of ‘widow’s rights’. Infact I asked readers to discuss in respective aforesaid interactive postings which were missed out due to their own best reasons. Now placing above two postings in this query does not help the @ Author of the post, pre-assuming s/he being on the other side of table. Further I feel feudal mindset should be removed when dealing with sensitive social issues such as 'widows'.
Reason being we [society] has traversed a long way post ‘sati’ customs and traditions and such abolitions by way of now almost forgotten specific Act.   I am not sure if readers have will to jog respective memories first to 1515 AD [Goa] and then to 1829 AD [Lord William Bentinck] to understand ‘sati vis-à-vis widow’ in today’s metro context and why Art. 14 COI is benevolent protector and provider in instance reference?

2.    So far as ‘gender biasness’ in various Family Laws are concerned internet shouting is not going to help ‘the cause’.

Illustration:-
See recent past publications herein of several of the @ Author’s [without need to name them] ; initially they all were actively seeking help and side by side shouting ‘gender biasness – false cases in same breadth’ and when each one of their case got ‘settled’ either they vanished from this interactive forum or came back just to ‘thank you’. So the mute point which I am placing here in this second posting is that, yes gender biasness will always be there but what I always insist here is - ‘fight for THE CAUSE’ and not ‘fight for YOUR OWN CASE’ vis-à-vis take lead from metro women’s stirring their aggrievement from ground zero all the way to top (i.e. Apex Court).

Bottom line:-
I stand by Law points elucidated herein as reply in reference to this query. Further it is not advocates lone job to change this illustration, an advocate need a client to support him all the way upto SC then only Laws sees slow but steady changes.


Fight = Take your case all the way to SC and get proposition in Law settled once for all basically for posterity, I mean why ‘shout first, then settle’ atleast such shouting is not making sense to me‘?.

stanley (Freedom)     07 June 2013

I stick to my point that the DV act is a clusmy drafted law rather than what you have stated that it is a cleverly drafted law which is my point of view .

Was it the vote bank of a particular gender which prompted it to be passed .

Your above post is grammatically wrong when the word shouting is used rather it should have been debating !! 

The debate was at any point of time in context to this post while the author of this post stated that the  widow was living away from inlaws and  husband relatives .Hence the above judgement ;)I would agree that If the widow was residing at any point of time with the inlaws  than the DV act would have been applicable.  But the next point when observed is that the author of this post has neither stated that the widow is a working women or a house wife . Take for instance she is a working self sufficent women than how would maintanence would be awarded is my point of view and why take a stance that maintanence would be awarded when the author of this post has not stated the facts.   

I am aware widows can claim maintanence and so can inlaws claim maintanence from daughter in law provided that the actual facts are narrated and we do not jump to conclusions . Am i right .Filing is one thing and gaining the reliefs is altogather another matter 

Bottom Line :- Nowdays when one is into a profession one is bound to make one's Money . So is it for all profession's including an Advocate . when a patient goes to a doctor the doctor calls back the patient several times even when the patient is cured from the disease so that he can get his fees . So is the case when it comes to an Advocate . The Longer the case runs the more money an Advocate makes that is trail court than high court and than supreme court .I dont think so an advocate can change the law slowly and steadly all he can do is use the law . Else from the inception of DV act its almost the 7th running year and hence we would have seen some change But when the law itself is biased what can an advocate do is my point of view .

Take for instance section 21 of the act for custody . When section 21 of Dv act is filed by a women can a male get  custody under this act or can he even put an application under this act :P when we had the Gaurdians and wards act which was not gender biased why a one sided act was needed in the grab of a protection order toget hold of the child without even considering its welfare . 

CRPC 125 is still the same from the times of the british raj which has not even been changed since as of date  the metro women too works . Women only can claim maintanence and men cant claim . Does not the provision of law in this contex has to be changed 

 

 

Now go through this article and see the laws are made to please whom in this particular scenerio 

Who makes law for this country? Is it the MPs lobby in Parliament or MNC lobby of US nuclear reactor industry? Who will decide ultimately the shape of the Bill to be introduced in Parliament of India? Is it Union Cabinet or Union Carbide? Who will be consulted for shaping the policy? Is it people of India or business people of US?

 

No consultation with the people

First of all, WE, THE PEOPLE, so called ultimate sovereigns of India since August 15, 1947 after getting liberated from East India Company Rule, should have been consulted as any ‘hazardous and inherently dangerous’ activity that would harm the people while it might fill the Swiss accounts of corrupt politicians and pockets of bribe loving bureaucrats. Every body except invisible environment and unidentified individuals will be happy with the deals and dealers dealing with purchasable leaders. There is no initial consultation process before making the Civil Liability for Nuclear Damage Bill of such nature which victimizes people, their government and offers in gold plate the immunity to makers of genocide technologies such as the machinery of UCC in Bhopal. The Bill is drafted somewhere on the tables of bureaucrats under the directions of UPA II bosses and PMO, whose patriotic fervor has to be doubted now. Then it was a top secret for a long time, until it is exploded with leaks and breaks. Left parties generated hue and cry about the bad law. The BJP also joined it. The Union Government headed by UPA II has been forced to send the Bill for the consideration of Parliamentary Standing Committee on Science and Technology headed by neither a scientist nor a technologist, but by Mr. T. Subbarami Reddy, a former civil contractor of Andhra Pradesh who executed the massive Nagarjun Sagar Dam and faced serious charges of corruption. It is difficult to believe whether this former contractor turned politician understood the terrible implications of the bill which was further diluted by his committee.

Executive overtakes Legislature

Even when the PSC was considering the Bill clause by clause, the Manmohan Government did not hesitate to please the US lobby by deleting clause 17(b) the only provision which might trouble the nuclear technology supplier, from the draft Bill. There was a public outcry with ‘timely injustice’ to Bhopal victims through the judgment of Criminal Court awarding mild punishment to the managers of genocide leaving out those who caused it from foreign territory. This made the people to grow suspicious about the pro-US-industry commitments of Indian Union. In response, the criticism-bitten- Government announces that they would not delete that clause. Then the Department of Atomic Energy presents a list of suggestions including a recommendation to delete clause 17(b). All our future interests of Atomic Energy are entrusted to management of this department which caters to the needs of US Industry, a shame indeed.

 

T. Subbarami Reddy’s PSC does not feel ashamed of further diluting the Bill by adding ‘and’ between sub clauses 17(a) and 17(b), by which the US or any foreign supplier will not be liable for gross negligence or willful act or omission done with intention to cause nuclear damage, if he does not sign an agreement with specific liability term. This is great contribution of Subbarami Reddy committee. ‘We, the People’ have to be blamed for electing dealers instead of leaders to the Parliament.

Much before the Union Cabinet cleared the policy to introduce a Bill on this vital subject, Manmohan Singh Government through a letter on September 10, 2008 from Foreign Secretary to the US Under-Secretary of State, committed to let the nuclear deal through without proper techno-economic impact assessment.

PM decides, not Cabinet

Prime Manmohan Singh himself promised the US administration that his country would ‘take all steps necessary’ to adhere to the Convention on Supplementary Compensation CSC for Nuclear Damage. This unwarranted written assurance given by the Prime Minister to help obtain the NSG clearance and the passage of the ‘123′ agreement is making Manmohan to some how get the bill of immunity of suppliers for nuclear damage passed by Parliament. As a lost resort, it may even purchase the support with the money of US nuclear industry lobby. Council of Ministers will not decide such a vital issue, only Prime Minister decides, and the council might have promptly ratified it.

 

Scientists such as A Gopalakrishnan, former Chairman, Atomic Energy Regulatory Board has openly told the nation that US Nuclear Industry had been idling for some time and it would take several years for it to get the reactors going in India. He also stated that the efficacy of the reactors of the US industry is planning to sell after the Bill is passed for millions of dollars had not yet been built or tested even in the US because of lack of demand. Such untested reactors can create havoc in India. US industry knows it that is why they are insisting on ‘immunity’ which the Manmohan’s Government and Subbaramireddy’s PSC are ready to offer.

US laws are different

Why not Manmohan reads the US Price-Anderson Act which allowed the victims to sue the suppliers? In fact, this is the reason why the US has not acceded to either the Paris convention or even to later agreements like the Vienna convention. When US initiated the Convention on Supplementary Compensation to Nuclear Damage in 1997 US adopted a double tongue policy.  It will not change its basic tort law of liability, but will force the newer signatories like India, the bakra, ie the scapegoat, to renounce their right to sue the suppliers for damage. It is difficult to understand that a former professor of economics Manmohan does not understand this simple logic and does not mind to impose sufferings on India and offer immunity to US industry. Why not our Prime Minister read the Tort law of India which is same as that of UK and US, Indian welfare legislations like Motor Vehicle Act, 1988, Workmen’s Compensation Act 1923, Public Liability Insurance Act, 1991, Supreme Court judgment creating absolute liability principle? Why not he understands the troubles of Bhopal victims? Mr. Manmohan Singhjee, are you the Prime Minister of India?

Sum and substance of the entire fiasco is this:  First Union Cabinet will ‘bill’ for immunity, next supplier, like Union Carbide (GE or Westinghouse) of sub-standard nuclear reactor will ‘bill’ for payment. Union Government pays it. If there is a nuclear disaster, which cannot be ruled out, operator, till today it is Government of India’s public sector unit, will foot the ‘bill’, if not sufficient Government of India will supplement, but it will never make US industry liable for it. That means the ‘bill’ of damages paid by the operator will not be compensated by the supplier even if they are responsible.  Who makes laws for us? Who are ruling us?

 

New Language of Law

 

Entire episode of law making for nuclear liability in India has generated new language and introduced eleven new meanings into our Constitutional Administrative dictionary.

  1. US: In the nuclear damage immunity context, expression ‘us’ means not ‘we, the people’ but United States of America.
  2. UC: UC might mean Union Carbide, not Union Cabinet.
  3. And: The ‘and’ in the Bill after Standing Committee cleared means ‘end’ of liability.
  4. Right to Recourse: The so called Right to Recourse means for Indians, after the Bill is passed, there is no right to recourse for Indian operators to get compensation from foreign suppliers.
  5. Liability: Liability means ‘immunity’ for suppliers and liability for victims or their government.
  6. Operator: Operator means Public Sector Undertaking, which means ‘We, the People of India’ who alone will be liable for every bit of damage.
  7. Supplementary Compensation: means the Government of India will be paying to compensate if the damage is beyond the limit imposed by Bill.
  8. Law Makers: means who make the law for a nation. For India it is US-industry lobby.
  9. Parliament of India: means the Parliamentary Standing Committee on Science and Technology, which will decide the language of the Bill to please the industry lobby of US.
  10. Congress: Now it is possible to confuse ‘Congress’ as US Congress than believing it to be Indian National Congress.
  11. Commitment: means commitment of Prime Minister and commitment of Department of Atomic Energy to lobby of US industry.

Founding fathers and mothers of Indian Constitution must be turning in their graves, as the party holding the name of Congress is rewriting the principles of Indian Constitution such as this Bill.

And by the way what happened to ANNA Hazares protests and corruption and why did it go down the drain , did anything change 

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