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Save Children from false accusations of the Domestic Violence

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1         National Commission for Protection of Child Rights,

5th Floor, Chanderlok Building,

36 Janpath, New Delhi-110001

 

2      Ministry of Women & Child Development

Shastri Bhawan

New Delhi,110001

 

3      Ministry of Home Affairs,

North Block,

Central Secretariat,

New Delhi – 110001  

 

4      Ministry of Law and Justice,

4th Floor, A-Wing,

Shastri Bhawan, New Delhi-110 001

 

5      National Human Rights Commission,

Manav Adhikar Bhawan Block-C,

GPO Complex, INA, New Delhi - 110023

Sub: Save Children from false accusations of the Domestic Violence

Sir,

1      The Hon’ble Supreme Court of India in HIRAL P. HARSORA AND ORS VERSUS KUSUM NAROTTAMDAS HARSORA CIVIL APPEAL NO. 10084 of 2016 (ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015)

Para 46. “We, therefore, set aside the impugned judgment of the Bombay High Court and declare that the words “adult male” in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted…..”

 

2      Hither to, Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as “DV Act”) defined as

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.

 

2             The striking of the ‘ADULT MALE” by the Hon’ble Apex court, surely amplified & widened the zone of ‘Respondent” , as aggrieved woman can seek various reliefs , under provisions of the DV Act, against the Respondent by invoking the provisions of the aforesaid Act. The proceedings under section 12, 18,19,21,22 & 23 are governed by the code of criminal Procedure which is explicitly defined in section 28 of DV Act-2005

“28 Procedure.—

(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.”

 

3      Section 31 of DV Act explicates penal provision for the breach of protection order or of interim protection order which shall be punishable for period of 1 year and as per Section 32(2) of DV Act, the sole testimony of the aggrieved woman, the court may conclude that offence may have been committed by the Respondent.

 

4      The striking of Adult Male by the Hon’ble Supreme Court under definition section 2 (q) of DV Act-2005, will now make the provisions more vulnerable against the children, who may now become Respondents as well as accused at the instance of the complaint made by the woman. The Children who could be new born, infants, toddlers, pre school age, school age and pre adolescent children will all come within the definition of the “Respondent”, which means they now too have to face the domestic case proceedings at their home town and most likely at different home place, if woman files the cases at her home town

5      The inception of Domestic Violence case proceedings against the minor children by the aggrieved woman, will jeopardize their studies, causing social , emotional and mental stigma, affecting social, physical and mental health and thus affects their emotional, social and physical development which will also prejudiced the interest of the child welfare

6      The following news paper clippings/press releases clearly elucidates that prior to the apex court order, the minor children has also been incriminated in marital discord between couples

News Clipping

Baby Got bail

21/06/2009 news published in Mid Day, Mumbai

Baby Got bail-in which Two-month-old gets dragged into a dowry harassment case filed by her father's first wife. In a case straight out of Ripley's Believe It Or Not, the Mumbai Sessions court last Wednesday (June 17, 2009) granted anticipatory bail for what must have been their youngest applicant ever a two-month-old baby…

The above article can be downloaded by visiting the following undermentioned link

http://www.mid-day.com/news/2009/jun/210609-Zoya-two-month-old-girl-anticipatory-bail-dowry-harrassment-case-youngest-accused-Mumbai-news.htm

 

II      Seven-yr-old faces dowry charges
Published On: May 26, 2007

A seven-year-old has been charged in a dowry case in Bihar. Santosh, a class four student has paid the price for a crime he did not commit.

http://www.ndtv.com/video/player/news/seven-yr-old-faces-dowry-charges/13976

 

III     2- and 4-year-olds accused in domestic violence Plaint
By Hemanth KashyapHemanth Kashyap, Bangalore Mirror Bureau | Dec 28, 2014, 04.00 AM IST

A woman lodged a domestic violence complaint not only against her estranged husband and his family but also against his sister's two children, aged two and four.

On May 8, barely 10 days after getting married to 34-year-old Umesh G M, a senior software engineer with IBM, 22-year-old Hamsavani allegedly ran away with her boyfriend. Acting on a missing complaint filed by Umesh, police traced Hamsavani and her boyfriend to a lodge in Madikeri. She claimed to have married her boyfriend Nanda Kumar while Umesh approached the court to invalidate his marriage with Hamsavani.

Five months after the family drama, the case took a new twist. Hamsavani lodged a domestic violence case against Umesh, his parents, five sisters, including two kids aged 2 and 4, with Tiptur police in Tumakuru. Before this, she lodged a dowry harassment complaint with the Subhramanyapura police. The case later got transferred to the Ulsoor Gate police station.

In her complaint with Tiptur police, Hamsavani wrote, "On May 18 we all went to a nearby mall and the family started harassing me. They assaulted and threatened me." She mentioned Umesh's sisters, their husbands and two children in the complaint. "The children of Devika (Umesh's sister) also joined in unison to harass me out of the blue. They stopped talking to me and left me all alone," she wrote

http://www.bangaloremirror.com/bangalore/crime/2-and-4-year-olds-accused-in-domestic-violence-plaint/articleshow/45663827.cms

 

7      The Apex court order now encourages and emancipates aggrieved persons to name the every minor children of their household  in their complaint for taking vengeance against the Husband or any family member. Thus, there is great feasibility that minor children are used as scape goat, and they too have to suffer litigation, trauma and trial for dispute between the aggrieved person and Respondents over any of the issues as laid down under the act , which is going to be very catastrophic to children welfare and interest

8      Thus, in the light of view, it is highly appreciable that appropriate guidelines/or amendments may needs to be proposed to exempt the children from Domestic proceedings as well as all of the proceedings which relates to marital as well as of the family disputes for securing their healthy future

Thanking you,

Yours Sincerely

YOGESH MAHAJAN

  



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