Men in India & their matrimonial rights

@Saurabh.  In our country the legislators sleep.  They don't have legal knowledge so they don't know what to do.  In other words, they don't know how to work as a parliamentarians.  So ordinary people suffer. Even for making a very small amendment which is sensible it takes herculean task on the part of media and social forces to make it a big issue and force the government to hear about it and made necessary amendments. 

If Parliament and parliamentarians are incapable of doing their job to benefit people-country will die! That is the fate of any nation. 

S.498a is being misused we all know about it.  For that matter any law can be misused.  Take criminal tresspass. Why can't you go and complain in a PS if you don't like your neighbor that he traspassed into your house?  There is a possibility that people file false cases relating to any law any section relating to any law.  However only in 498A more false cases are filed.  The reason is there are so many vested interests around this matter. 

The primary problems leading to misuse of law are:

1) Delayed justice: There are 2.7 crore cases pending in all courts. It will take 450 years just to clear the backlog. Instead of decreasing, the numbers are growing! There are combination of factors leading up to this and much of it rests on the government and judiciary. Any country that fails to deliver adequate justice to its citizens is a failed state! In that sense India is a failed state.

2) No punishment for misuse of law! The punishment must be suo moto on the part of the court dealing with this and can be delivered based on the case itself. With inadequate deterrence misuse will be rampant. The misuse  will be especially rampant where the misuser can profit from its misuse and has no consequences to suffer, related to such misuse. This is the problem with 498a. It is very easy to lodge, extremely severe and draconian on the part of accused, drags on for years and if the accused wins there is no penalty for the misuser! It is a perfect law to be misused!

I disagree with the argument by NCW that only a small portion of 498a are misused. The statistics itself says otherwise. However, if proper analysis is used it is even more misused than the statistics reveal. In other words it lends credence to the accusation that 498a is an extremely misused law!

The other reason why laws are misused is the way it is written! The laws such as PWDVA are written in a way it can be misused easily. It is misused easily! Is that a surprise? Again there is no consequence for its misuse and it is all profit!
 

The first vested interest is women themselves.  There is no way for them to recover dowry for them if the husband is no more interested in marriage because divorce law says giving dowry is also a crime.  So they use S.498A as alternate route to threaten the husband to get a good settlement amount which is nothing but dowry itself.  We know huge sums are involved in this because practise of dowry never comes to an end.  Here you need an amendment to the effect that giving dowy is not illegal and if it is not paid through cheque a claim for recovery of dowry cannot be made under any law.

The problem again is with the parliament (laws are not well written) and judiciary (improper interpretation and implementation)

The DP act:

Dowry is very vaguely defined. From the definition of dowry under the act-it will be unclear as to what constitutes dowry, what constitues stridhan and what constitutes gifts! These three must be clearly defined.

DOWRY: must be confined to that which is demanded by one party to be fulfilled, mandatorily, by another party  in consideration of marriage or its continuation.  Mandatoriness and deman must be essential element to consider it a dowry.Only such unreasonable 'demand' can/must constitute a crime. The burden of provng such demand must rest with the complainant. In today's day and age it is relatively easy to proove such a demand. If upon such demand, the other party fulfils such illegal demand, they are liable to be punished. The defence that they were forced to comply with the demand under duress is not tenable because the society knows it is against the law to comply with such demand. Infact, there are many instances where, those who have opposed such illegal demands and cancelled marriages have become heroes-nationally and internationally!

The name dowry must be confined to

1) mandatory demand by one party made to another party.

2) It must be in consideration of marriage or its continuation.

3) It must be for the sole benefit of the party demanding.

It is easy to see why this should be illegal.

STRIDHAN: must be confined to those valuables

1) that is given by bride's party to the bride.

2) That is given by grooms party to the bride.

3) It is only stridhan, if it is given during marriage or immediately thereafter!

STRIDHAN-if we analyse is just a gift given to the bride/ woman It is just like any other gift.It belongs to the person who is gifted. It can be used anyway they want.

Hence-dispossessing the woman of such 'gifts' accounts for cheating. If taken possession by the Groom for safe keeping-accounts for breach of trust, if failed to return on demand by the bride!

Since this 'gift' is legal and because disputes have arisen due to this-a list of such gifts, under this category, must be duly documented and, in my opinion, should be registered, if possible.

A woman is entitled to recover this-as any other gift.

If not documented she should have no claims over it. This simple thing will prevent misuse. A woman is breaking/ misusing the law if she claims the same -without due documentation! Law is about evidence. No evidence, under law means, it didn't happen!

GIFT: This is general gift. It is like any other gift given by one party to another, on any occassion they seem fit. These gifts belong to the parties they are gifted to.

Any gift not documented belong to this category.It would be difficult to mandate return of such gifts unless evidence is produced by the person, who the gift belongs to. It again is covered by 'cheating and breach of trust laws.

This is my view and it can be vetted to make it better-by smart legal minds!

The second vested interest is police.  During mediation process they would be more interested to convince the accused to arrive at some settlement and pay the amounts to the complainant.  Complainant, police collusion generally takes place and some share in the amounts given by accused with the efforts of police during so-called mediation go to police.  That is second vested interest.  It is because of this vested interest, no mediation made by police, women's cell etc prior to filing of S.498a succeeds.  Here education is needed to be imparted to the accused parties not to accept for any kind of monetary settlement because S.498a is a non-compoundable offense.  And it is necessary that accused parties know that if they believe the words of police or complainant that a "registered FIR is withdrawn by complainant pursuant to settlement amount paid" by the accused, it will be grave mistake on their part.  Registered FIR can only be quashed by HC or it reaches its logical conclusion through discharge/acquittal/punishment of the accused, police have no powers to withdraw a registered FIR nor the complainant has.  And if they pay settlement amounts to complainant due to intervention/mediation of police there is no guarantee that another FIR will not be lodged on same grounds on same facts in future.  So when an FIR is filed, it should be in the knowledge of magistrate and the grounds on which it is made should vanish through conclusion of a legal proceeding, not otherwise by payment of settlement amounts through mediation process initiated by police.

 

So here also a clear cut amendment is needed somewhere in marriagelaws that settlement amounts shall be collected only through due process of law i.e, by filing application u/s.22 of DV Act or u/s.25 of HMA it shall be paid only by court, no party shall pay it directly to the complainant into her bank account. This will put a full stop to police convincing accused to pay settlement amounts to complainant during mediation process. Law should specifically state that police should not mediate in the matters of settlement amounts, it should be adjudicated by court and only through the orders of court made under relevant provisions of laws, the settlement amounts should be paid by accused to complainant.

 Is there an amendment in marriage laws needed for that? Police have no powers to do that anyway. If they are doing so-they are breaking the law. They should be prosecuted for abusing their powers. There are provisions under law for that already! But the question is how many are punished. Answer none! This is another example of a failed system and failed state.

It is ofcourse the citizen's responsibility to know the law of the land. Ignorance of law is not an excuse. Anyone who breaks the law, even ignorantly, is still punishable!

The third vested interest is Advocates themselves.  You know cases are bread and butter for Advocates.  They do not want that a marital relationship to continue because of professional/business interests.  You think as an advocate.  What will you get if the person (be it wife or husband) coming to you with allegations is convinced to re-unite with spouse and send him back saying all goody goody things?  YOu want that he/she separates from spouse and let there be a 100 cases they file against each other.  If husband files a divorce case, wife in turn should file S.498A, 2/4 of DP Act., 406 of IPC, etc. etc.  Then the husband will come running to the Advocate for bail and for defending his case in all the cases filed by wife. If one Advocate convinces one person your wife is unfit for you, you have to file Divorce case against her, he will have plenty of business from him later.  So you know the Advocates are well aware how to drag clients into marital disputes and ensure they remain bogged up with cases. 

Here you have to educate clients, not to accept whatever Advocate says blindly.  They should know little bit about law themselves by interacting in forums like these and decide what is to be done without giving free hand to Advocates who generally say, we understood your case we solve your problem, we do it for you, you sign on this....not more than that.  If clients talk more with little bit of knowledge gained from books or by interacting in forums like these, they scold clients, "Who is Advocate you or me?".  When client says, "You are Advocate" they say, "Then do as I say".  Many people do not know that what is the social fallout if they file S.498A.  They are not told by Advocates the way police deal with parents and husband, and after one such experience, the husband decides strongly to get rid of wife.  And that is what the Advocates want.

The advocate bar must be responsible for taking action against erring advocates. They must lay down guidelines and implement them. Failure of this happening is another example of a failed system and a failed state. 

That is not right approach of dealing with clients, nor clients should be so innocent as to not understand the designs of Advocates. 

 

Because of these reasons, I believe the women are generally innocent, very few women on their own initiate proceedings against husbands under 498a, otherwise they are driven by vested interests in police, Advocates etc.  That is why I said, 90% of women are innocent.  That was quoted by Tajobsindia in this thread.

Innocence and ignorance of law/ consequences is not an excuse. Anyone can claim innocence/ignorance. A misuse of law is misuse of law, a false complaint is a false complaint, dowry giving is dowry giving and it must all be punished. Only when we establish rule of law and implement can a state adequately function. In that respect- India is a failed state.

Indian parliament:

 Cannot make properly formulated laws.

Indian govermnment

Cannot provide for adequate well trained judges, adequate infrastructure for judiciary, adequate budget allocation to function as needed to deal with large number of pending cases.

Indian judicary:

Overburdened by pending cases and inadequate infrastructure and  inadequate budget allocation is incapable of providing justice in a proper timeframe. Delayed justice is denial of justice!

A overall corrupt nation.

These are necessary ingredients to call it a failed state. India has it all!