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(Guest)

DOMESTIC VIOLENCE

A Magistrate in a complaint by a woman against the Husband under Domestic Violence Act held that, since there is no allegation of domestic violence after the coming into force of the Domestic violence Act, as the wife had left the Husband to stay with her parents before coming into force of the Domestic Violence Act, held that domestic violence is not proved, yet went on to award Maintenance to the wife and daughter under the Domestic Violence Act.  Secondly he has not recorded a finding that even before the coming into force of Domestice Violence act whether there has been a case of Domestic violence. Is this order of awarding Maintenance under Domestic violence act not perverse as Magistrate himself has recorded a finding of no domestice violence?

 

 



Learning

 9 Replies

Adv. Deepak (Advocate)     23 June 2009

Mr. Anil Kumar Menon,  In Domestic Violence Case, Magistrate can pass suitable orders under S.125 of Cr.P.C. and grant maintenance amount to the aggrieved wife.  This is covered under domestic violence act.  However, as you say, if there is no finding that domestic violence has been there, then you may prefer a criminal revision before Sessions Court and request the court to quash the order.  However, Magistrate has got inherent powers and he can consider the case as a whole and grant maintenance amount, even if there is no case of domestic violence.

Rajesh Kumar (Advocate)     23 June 2009

In such Gender Biased Act, trial is a mere drama.

The acts is so worded so loosely, "magistrate may pass suitable orders", that no order can be challenged. Thus even if an order of "hanging of husband" is made, it will fall within the ambit of Domestic Violence Act.

 

1 Like

Bhaskaran Advocate (Lawyer)     24 June 2009

This act is suspicious and totally biased favouring women community.  The Act allows the Magistrate to award maintanance in the very early stage of hearing itself.  All the defences of men folk are thrown to dustbin even if it is genuine.  Advocates appearing for the men are having a horrific experiences in some courts.

On the other hand the Act if used by the Judiciary in its full judiciously it can go a long way for mending the family disputes may be with Iron hand and threats.   It does have a provision for mediation between the partners but this GOOD provision in the Act ALWAYS is being over rided which breaks the husband and wife relationship and love between them forever.

The Act rather then setting the family right has been doing havoc  and has been breaking the families and  is the root cause for DIVORCES.

The magistrates need be coached properly about the Act and it should be used judiciously  to bond the family.   The Act itself needed not to be faulted with but the way it is being used by the judiciary is biased towards Women faternity.

2 Like

Legal Fighter (Advocate)     24 June 2009

u should file appeal under section 29 of Domestic violence act. Before giving any relief or passing any order against the respondent, the magistrate has to hold that Domestic Violence has taken place, without such finding, no order against the respondent is to be passed. there is one similar judgment of AP High Court which has held that DV Act has no retrospective operation. The judgment is attached herewith.


Attached File : 7 ap-hc-crl-3714-2007-dv-not-retrospective.pdf downloaded: 335 times
1 Like

(Guest)

Dear Deepak, Thank you very much I have erroneously clicked the wrong icon earlier.


(Guest)

Dear Manish,

Thanks for fowarding the judgement of Andhra High Court.  Howiever I feel tha the reasoning given is incorrect. As the DV act do not provide for any penal consequence.  Only after passing of a "Protection order" by the Magistrate and violation thereof by the Respondent Penal consequence will follow.  To the extent that the act has no retrospective effect I am in agreement and the reason is that the statute do not state that it has retrospective effect. However as stated earlier reasoning given appears to be incorrect.

Legal Fighter (Advocate)     24 June 2009

WHETHER PWDVA, 2005 IS APPLICABLE WITH RETROSPECTIVE EFFECT :

 No.

 

The Hon’ble Andhra Pradesh High Court, in the matter of U. U. Thimmanna & Ors. Vs Smt. U. U. Sandhya & Anr., has held

 

There is no dispute that the Act came into effect when the Central Government appoints 26-10-2006 as the date on which the Act was came into force. For acts of violence, certain penal provisions are incorporated. Therefore, it is a fundamental principle of law that any penal provision has no retrospective operation but only prospective. There is no allegation either in the report or in the statement or in the complaint on the 1st Respondent with regards to the acts of domestic violence that took place on or after 26-10-2006. Therefore continuation of proceedings against the petitioners is nothing but abuse of process of court. Accordingly, the Criminal Petition is allowed quashing the proceedings in DVC No.1 of 2007 on the file of the Judicial Magistrate of I Class, Yemrniganur, Kurnool District.”

 

The Hon’ble Madras High Court, in the matter of Dennison Paul Raj & Ors Vs Mrs. Mayawinola, considered the PWDVA, 2005 only from one perspective (i.e. no penal provisions) whereas it is cardinal principle of construction that every statute (irrespective of whether it has penal consequences or not) is prima facie prospective, unless it is expressly or by necessary implication, made to have retrospective operation. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only.

 

In Govinddas and Ors. Vs Income Tax Officer and Anr. Manu/SC/0248/ 1975, the Hon’ble Supreme Court has laid down that:Now it is well settled rule of interpretation hallowed by time an sanctified by judicial decisions that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general-rule as stated by HALSBURY in Vol. 36 of the LAWS OF ENGLAND (3rd Edn,) and reiterated in several decisions of this Court as well as English Courts is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”

The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect and that intent has to be expressed in unambiguous language. The PWDVA, 2005 by its enactment has come into force w.e.f. 26.10.2006 through Official Gazette publication and doesn’t contain any express provision to make it applicable with retrospective effect.

Deekshitulu.V.S.R (B.Sc, B.L)     28 June 2009

Manish

A good effort by you. Any legislation is ordinarily prospective, unless the same is sought to be retrospective, in the Act itself.   Since the PWDV Act, also deal with penal consequences and as the Magistrate of 1st class is the comeptent authority, to try the matters thereunder. As said by the learnd judge, a penal provision cannothave a retrospetctive operation.

once again good wishes to you

ltcolvdbhanot (retd col)     27 March 2010

THE JUDGEMENT OF CHENNAI HIGH COURT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS SEC 31 IT SELF IS NOT APPLICABLE RETROSPECTIVELY AS COULD MM PASS ANY PROTECTION ORDER PRIOR TO 26-10-2006 THE ANSWER IS BIG NO AS THE LAW WAS NOT  THERE . SO HIS MENTION OF SEC 31 IN HIS SUPPORT OF RETROSPECTIVE OF PWDVACT IS AGAINST THE NATURAL JUSTICE 


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