Is Interim Orders or Interlocutory orders under Protection of Women from Domestic Violence Act (PWDVA) Unconstitutional and Against Human Rights (UDHR)?
I am writing this article by exercising my fundamental rights conferred by Article 19 sub section 1(a) of Constitution of India.
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SECTION 23 OF POWER OF WOMEN FROM DOMESTIC VIOLENCE ACT (PWDVA) IS UNCONSTITUTIONAL AND INHUMAN.
I have just seen the following judgement Calcutta High Court. -
“Unless it is satisfactorily established that domestic violence has taken place neither any protection order under Section 18 nor any residence order under Section 19 nor any order for monetary relief under Section 20 nor any compensation order under Section 22 of the Protection of Women from Domestic Violence Act, 2005 should be passed.” (Calcutta HC)
The Supreme Court upheld this Calcutta High Court judgment which held that entitlement of a wife to claim residence in the shared household is only when she could establish domestic violence.
The Apex court bench comprising Justice L Nageswara Rao and Justice MR Shah dismissed a special leave petition filed by the 'wife' against Calcutta High Court order.
Judgement is attached.
Welcoming the said judgement my conclusion is -
1) Under Section 23 of PWDVA the judge has power to pass any such interlocutory/interim/ex-parte order based on prima facie only that violates Article 11 of UDHR .
Article 11: Right to the presumption of innocence
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
Here, the definition of "ORDER" is properly given U/S 2 (14) of Civil Procedure Code (CPC). i.e. -" order " - means the formal expression of any decision of a Civil Court which is not a decree. Hence it is interlocutory order where no direct evidence is involved for such concluded order.
2.) The basis of the provision under Section 152 of CPC that is interlocutory order is founded on the maxim in Latin i.e. - "actus curiae neminem gravabit" i.e. "an act of the court shall prejudice no one" - in English. However, interlocutory/interim orders under PWDVA the court prejudices women hence violates the said CPC.
"Our basic concept of Jurisprudence that the 100 culprits may let go free but no innocent should be punished" - Supreme Court of India
3) DVA violates Article 14 (Equality) and even Article 15(3) of Constitution of India as Article 15(3) gives NO POWER to discriminate based on gender on private properties (Husband's properties) as its limit lies within Article 15(1 & 2). Hence the Government transgressing into private properties by sections 19, 20, 22 and 23 of PWDVA which is unconstitutional.
Please cite this judgement of Supreme Court below along with aforesaid law points and file PIL in the Supreme Court of India. Best of Luck!.
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