To make punishment in Disability Act-2016 for harassing Differently abled u/s 498-A IPC

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1      Ministry of Social Justice and Empowerment,

Room. No. 636, 'A', Wing, Shastri Bhawan,

Dr. Rajendra Prasad Road,

New Delhi - 110001 (India)

 

2      The Chief Commissioner for Persons with Disabilities,

Office of the Chief Commissioner for Persons with Disabilities

Ministry of Social Justice & Empowerment

Sarojini House, 6, Bhagwan Dass Road, New Delhi

 

Sub: i       Urgent need to incorporate the penal provisions in Disability Act-2016, and to provide protection and adequate safeguards to the differently abled population, from the widespread abuse of the 498-A IPC & Protection of the women from the Domestic Violence Act-2005 ( PWDV Act-2005) and other false cases

ii      To conduct an empirical study and to propose the legislation and giving adequate safeguards for giving protection to the Differently-abled  from the Domestic Violence in their shared households

 

Sir,

The undersigned has made online petition on the  “Formation of a National Men’s Rights Commission”  and “Petitioning to obtain reliable data by conducting empirical study on the misuse of the provisions of 498-A IPC”, which was signed & supported with their comments, by over nearly two thousand people across the Country, duly forwarded and sent to the respective Ministries and now are at under-consideration( , name of the supporters and their comments are attached )

 

2      The undersigned, initially, witting about the problems of the differently abled population, was informed, in his socialized groups/messages on social networking sites, that differently able population, due to their physical limitations, have been facing the worst tormenting, in cases related to the 498-A IPC and Domestic Violence, which was filed with the ulterior motives

 

3      It has been stated that In India, as per the 2011 statistics, there are more than 2.68 crore disabled people across India and majority of them face constant harassment, abuse, and discrimination even within their families

 

4      The alarming misuse of the 498-A IPC, which the Central Government admitted in its various advisories, as well as, by the Hon’ble Supreme Court of India too observed in its various and recent Judgments, has led to harassment of a large number of the innocent men and their families. It has also been asserted that Differently abled men stand unshielded and easily assailable to the extortion and legal terrorism forcing them to pay out huge money in the name of settlement with the estranged married woman who or her family are the complainants

 

5      The legislative provisions, which though are enacted with good intentions, are most vulnerable to differently abled man are as follows:

i)      Section 498-A IPC:

        “498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

 

ii      THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE Act, 2005     

        Section 2(q)     “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

        Section 19.

Residence orders.—

(1)   While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a)   restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b)   directing the respondent to remove himself from the shared household;

(c)    restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d)   restraining the respondent from alienating or disposing of the shared household or encumbering the same;

(e)   restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f)    directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.

Section 22

Compensation orders.—

In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

Section 23.

Power to grant interim and ex parte orders.—

(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

  

6      The Hon’ble Supreme Court of India in ARNESH KUMAR VERSUS STATE OF BIHAR & ANR. CRIMINAL APPEAL NO. 1277 OF 2014 (SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013) Date: 2 July 2014 has observed

“The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal”

 

7      CONSEQUENCES OF FILING FALSE 498-A & DV CASE AGAINST THE DIFFERENTLY ABLED PEOPLE

(i)                The differently abled man/woman, being the relative of the Husband, is most vulnerable to these provisions, has to face the criminal trial, in 498-A IPC case, and Court Proceedings, in DV Case, merely at the instance of the complaint filed by the Wife/married woman, mostly, at the home town of the married woman

(ii)               The differently abled, after the registering of the FIR in their name and in order to avoid arrest, has to run and seek for the Anticipatory Bail from the Court of Sessions or the High Court of the respective State. Though the Hon’ble Supreme Court, issued certain guidelines, in the Arnesh Kumar Case( supra), but still, some states, especially Bihar & Jharkhand states, denied and rejected Bail Applications to the Men, concomitant the husband who could be the differently abled has to face the pretrial imprisonment for several weeks or even for months. The 498-A IPC, invariably, do not discriminate and give any concession to the differently abled, as result they too have to follow the same strenuous legal recourse i.e. Anticipatory Bail and then regular bail , in order to seek their liberty

(iii)             The differently abled, despite having physical and other limitations, for seeking bail has to run from pillar to post and has to face the severe harassment, if the false case has been  filed in the remote or in distant areas, which, often, has also the  home town of the married woman

(iv)             The filing of the charge-sheet by police, in the 498-A, as per the N.C.R.B data and the Hon’ble Supreme Court of India vide in its judgment in Arnesh Kumar case, is the highest among the other sections of the IPC . As result, the differently abled people, like another family, have to face the criminal trial, at the jurisdiction where the FIR has been lodged against them

(v)               The criminal trial, irrespective where it has been instituted, in 498-A case, runs for several years, which on an average could range from 5 years to 20 years. The accused differently abled, in case if not exempted for appearance by the Court, has to remain present on each and every day of the hearing, and if s/he, inadvertently, missed any date, then non-bailable warrant may be served on the differently abled people, who are made as an accused

(vi)             Even after acquittal, the differently abled people have to face appeal against acquittal, an another case initiated against them, as result, they again have to face the criminal appeal against acquittal

(vii)            The 498-A case, as per the Hon’ble Supreme Court of India in its various previous judgments such as Preeti Gupta Vs State of Jharkahand, discerned that these case has been filed , on the spur of the moment for taking revenge against the husband and his family members

(viii)          Like 498-A case, the Persons with special needs & differently abled have to face the Proceedings in the Domestic Violence Act( PWDV Act-2005). There is no legislation in DV Act which gives any protection to the differently abled person who is arrayed as “Respondent” by the estranged wives or the woman

 

8       IMPACT OF FILING FALSE 498-A CASE & DV CASES ON DIFFERENTLY ABLED PEOPLE

(i)                Though it’s not based on any empirical study but like common individuals, the differently abled people, who are trapped under fake 498-A & DV cases, has to face the anger, frustration, depression, lack of interest,  loss of mental peace. Due to Physical restrictions, their  emotional disturbance problems increased which is fatal to their health, mind, and body

(ii)               Differently abled, who are in employment, and due to false cases, often results in losing their jobs, damaging their employment and promotional prospects which escalate their financial constraints

(iii)             The marriage prospects of the Differently abled people, who are facing the criminal and civil proceedings, are often damaged as result they feel deprivation of their spouses, especially who are at the marriageable age

(iv)             The frequency of filing false cases among the family having the differently abled are much more than average families as result they are shunned and neglected by their own families

(v)               Persons with the disabilities, under the PWDV Act-2005, can be evicted from the “shared house”, at the instance of complaint made by the “Applicant”, and hence the rights of the differently abled people remain jeopardized

(vi)             Because of the physical and sensory limitations, the differently abled people are much prone and vulnerable to the violence caused by his or her in laws

 

9      CURRENT SCENARIO:

(i)                The current provisions Disability Act-2016, in the light of the type and the nature of the harassment faced by them, are not the sufficient and have the  adequate measures for the protection of their welfare and interests of the differently abled, especially who are trapped and acquitted from the false cases

(ii)               The 498-A IPC and PWDV Act-2005 does not discriminate between the differently abled from the others and hence, no concession is made under the Cr.P.C and the other civil proceedings and, thus, differently abled people are placed on the same footings as with the other individuals, in facing the criminal and civil litigations filed by his or her in laws

(iii)             Because there are insufficient provisions on filing false cases, especially on marriage related & Domestic laws, against the differently abled individuals,  encourages the wrong doer to play with the law till they completely ruined the life of the differently abled people for their personal gains

(iv)             Thus, in the absence of the deterrent laws for the welfare of the differently abled, the very purpose of the social and justice and empowerment for the differently abled people cannot be achieved. The differently abled people, too,  have a right to live with the human dignity which is well defined under the constitution of India

(v)               There is no legislation which protects the Differently abled Individuals from the Domestic Violence caused by his/or her in laws and their relatives

 

10     Thus, in the light of the above submissions, and in order to protect the misuse of the laws, filing and threatening to file fake cases against the differently abled and their families may be punishable under the Rights of the persons with the Disability Act-2016, which will give differently abled people an equal opportunity to live the life with dignity

 

Thanking you,

Yours Sincerely

YOGESH MAHAJAN & OTHERS SIGNED APPLICANTS

 

 

 

 

 

 

 



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