Preventation of Woman from Domestic Violence Act (PWDV) 2005.
The General motive of WIFE is to implicate all family members which includes Father-in-law, Mother-in-law, Sister, Sister-n-law, Brother, Brother-in-law.
01. Generally Notice received from wife is under Section 12.
[Section 12 (1): Application to Magistrate.— An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service]
02. Aggrived Person: [“Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent... Secton: 2(a)]. Generally, WIFE is Aggrieved Person in this Act.
03. Respondent: [“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]. Means HUSBAND and also his relatives viz. Mother, Father, Brother (Elder/Younger), Sister, Sister-in-law, Brother-in-law etc.
04. Shared Household: [“Shared household” means a household where the person aggrieved (wife) lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household...... Section: 2(s)]. Example: (i) Own house of Husband (ii) Tenanted house of Husband (iii) Ancestral house of Husband with Joint Family (iv)
Hon. Supreme Court Judgement about Shared Household: [S.R. Batra and Anr. Vs Smt. Taruna Batra. Civil Appeal No. 5837 of 2006, BENCH: S.B. Sinha & Markandey Katju]: If House is ownd by Mother, Father by her/his own
earning is not treated under Section 2(s).
05. How to save family members : (a) Married Sister(s): Show Identity Card of sister(s) showing her marital house address and her husband name. AADHAR Card, Gas Connection (Directly indicates that her livelihood is totally separated as she cooks separately) means address is different and livelihood, cooking is separated. Contract of tenanted house, Rashan Card, Voter ID card etc. are treated as enough evidence to prove. Also mention her date of marriage, it will disclose since how long she is separated and living in her own world which is distanced and separated. (b) Married elder/yonger brother: Same as 4(a).
Hon. Supreme Court judgement regarding quashing of names: [Ashish
Dixit & Ors. Vs State of UP & Anr. Criminal Appeal No. 43 of 2013 (Special
Leave Petition (Crl.) No.8522 of 2010). BENCH: Justice H.L. Dattu & Justice
Chandramouli Kumar Prasad. Date of Judgement: 07/01/2013]: Quashed the
proceedings against all family members except Father-in-law, Mother-in-law
and Husband.
06. When Notice of PWDVA notice is received by HUSBAND, it is necessary to note whether Domestic Incident Report (DIR) is annexed with the notice or not. DIR is prepared by Protection Officer [“The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act....... Section: 8(1)”. “The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed....... Section8 (2)”].
07. Duties of Protection Officer(s) :—[Section 9(1) It shall be the duty of the Protection Officer— 9(1)(a) to assist the Magistrate in the discharge of his functions under this Act;
9(1)(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
9(1) (c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
9(1) (d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
9(1) (e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
9(1) (f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
9(1) (g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;
9(1) (h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974); (i) to perform such other duties as may be prescribed.
9(2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act]. In Short : (i) To help Magistrate to accomplish his/her work; (ii) Preparation of DIR (iii) To send copy of DIR report to local police station of that area where WIFE resides/made complain. [Example: Generally, WIFE register complain at her Maike as per her support and convenient. If WIFE lives in West Boring Canal Road, Anandpuri, P.S. Shri Krishna Puri, Distt: Patna Protection officer will send one copy of DIR to Shri Krishna Puri police station] (iv) To send copy of DIR to Service Provider, (v) To send one copy to Magistrate (vi) To provide copy of DIR to WIFE.
08. Domestic Incident Report (DIR): (a) Generally, Protection Officer prepares unilateral report in the favour of WIFE which is wrong as WIFE registered complain at her Mike, accordingly, Protection Officer of that district/area prepares the report on the request/prayer of WIFE & her mother-father. Actually, DIR prepared by the Protection Officer of that district/ area where HUSBAND & WIFE resided, lived together is treated as valid. [Example: WIFE belongs to Patna, P.S.:- Shri Krishnapuri, HUSBAND belongs to Muzaffarpur(Bihar)/Katni(MP) and if DIR is prepared by Protection Officer of Patna and submitted to Magistrate at Patna is wrong. Actually, Protection Officer of Patna need to send all relevant documents received regarding Domestic Violence, to Protection Officer of Muzaffarpur(Bihar)/Katni(MP) and request him/her to make enquiry report and send the report to Protection Officer of Patna. After that Protection Officer of Muzaaffarpur(Bihar)/Katni(MP) will go to that place Muzaffarpur(Bihar)/Katni(MP) as the case may be where HUSBAND and WIFE lived/resided and make enequiry, record statements (bayans) of public/inhabitants of that area , listen to them, note their sides and then prepare his DIR and communicate the same to Protection Officer of Patna and then Protection Officer of Patna will submit the DIR in court]. In that DIR, statements, evidence and fact of both sides will be available and then HUSBAND shall be summoned by the court. If summon is issued before such exercise, it will be wrong and voice needs to be raised for that.
(b) How it is wrong: It is not under the jurisdiction of the Protection Officer of that district/area where WIFE actually registers complain as it is totally the violation of Article 21 of Indian Constitution and if fair investigation is not done then fair trial can’t be expected. Action should be taken according to Section 5(2) of Domestic Violence Rule 2006 or Rule 8(xiii) and under Section 9 (p) and 9(N) and then DIR should be prepared about persons involved in domestic violence. If DIR is prepared on mere imagination without inquiry, the report needs to be quashed.
Hon. Supreme Court judgement in this regard: [(i)Criminal Appeal No.1251 of 2014 arising out of SLP (CRL.) No.7104 of 2013, Judgement Date: 30/06/2013 ]:-
Hon. High Court Delhi judgement: [Bhupendra Singh Mehra Vs State of Delhi 2010]
Hon. High Court, Madhya Pradesh judgement: [Imarti Devi Vs Smt. Kranti Jatav Date : 22/12/2016 MCRC-14393/2016]: After taking congnigence of DIR and on the basis of role of incidence committed by Respondents, Magistrate will order to issue Notice/Summon.*
09. Jurisdiction:—[Section 27(1): The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which— Section 27(1) (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or Section 27(1) (b) the respondent resides or carries on business or is employed; or 27(1) (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. Section 27(2): Any order made under this Act shall be enforceable throughout India]. Example: WIFE belongs to Patna, HUSBAND belongs to Muzaffarpur (Bihar)/Katni(MP) and if WIFE register a case under PWDVA then the case will not admitted or run.
Hon. Supreme Court judgement: [Jagir Kaur & Ors. Vs. Jaswant Singh, Judgement date: 13/02/1963]
[Advocate Ramesh Vs State of Maharashtra, Writ Petition No. 531 of 2010, BENCH: Judgement date: ] :
10. Araticle 468 of Code of Criminal Procedure (CrPC): 468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take
cognizance of an offence of the category specified in sub- section (2), after the
expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
(3) 1 For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
{1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch.}.
Example: The maximum penalty in 498(A) is 3 years of Imprisonment. If
WIFE left home on 10/07/2016 and try to register case under section 498(A) of IPC 1860, she must register the said case before expiry of 3 years from 10/07/2018. Means to say that she can’t register 498(A) case against HUSBAND and his family members after 09/07/2019. But it is required to prove that she left home on 10/07/2018 with proper evidence.
11. Section 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.
(a) Preventation of Woman from Domestic Violence Act 2005 is civil in nature but Crime under section Section 12, 18, 19, 20, 21, 22, 23 and 31 of PWDVA 2005 is governed by CrPC 1973 (2 of 1974). This makes this act Quasi Criminal in nature.
Note:- The purpose to discuss Section 28 of this act which is mentioned at Para 11 and Section 468 of CrPC mentioned at Para 10 is to understand how a delayed complained be quashed as time limitation of filing complain is not mentioned in PWDVA 2005. It is co-related with Section 468 of Cr.PC.
(b) Hon. Supreme Court judgement : [Indrajeet Singh Greval Vs State of Punjab and Anr. Judgement Date 23 August, 2011, BENCH: ]:- Keeping in view of provision of Section 468 of Cr.PC, Complain can only be registered within a period of one year from the date of occurrence of the incident.
[Japani Sahoo Vs Chandra Shekhar Mohanti (AIR 2007 SC 2762), Saraha Mathew Vs Cardio Waskular diseases, Judgement Date: 26/11/2013 and NOIDA Enterprises Association Vs NOIDA and Anr. {(2011) 6 SSC 505}]: The same judgement/comment is given.
(C) When petition is filed under section 468 of Code of Criminal Procedure (CrPC) and court denies to admit the case as it is civil in nature hence the above fact of the act is required to be highlighted before the court.
12. Section 468 of CrPC shall govern PWDVA 2005 and after expiry of one year from the date of incident, complain registered under this act shall not be admitted for trial in court.
13. Attack: (a) Generally all cases registered by WIFE are false and baseless and they are used as legal tools to disturb and torture HUSBAND and their relatives. WIFE submits Affidavit in support of her complain(s)/application(s) as the case may be and when it appears that her evidence or her statement in court or witness or complain(s) made in plaint is/are false/fake/fabricated as per your collected evidence against her (All kind of evidence viz. Employment related, education related her past history related, circumstantial. The same can be obtained by using RTI Act 2005 which is admitted as evidence in court) then HUSBAND can enforce Sectin 340 of CrPC (Fake/False evidence) and file a petition regarding her submission of fake Affidivit in support of her plaint in the same court where the case under PWDVA 2005 is under trial. Contempt of Purjury.
Delimination Period : A (i) Only Six months: If the crime is punishable with fine only.
(ii) One year : If crime is punishable with imprisonment of the period not exceeding one year.
(iii) Three years: If the crime is punishable with more than one year and not exceeding three years.
(b) Important judgements of Hon. Supreme Court: (i) [Dilip Singh Vs State of Utter Pradesh. Judgement date: 03/12/2009]: It is completely established that a case which tries to pollute the pure water of justice or which touches pure water falls of justice with tainted hands is not entitled for relief, interim or final as the case may be.
(ii) [Ayub Khan Noor Khan Pathan Vs State of Maharashtra. Case No. Judgement date: 08/11/2012. BENCH: ] :- It is a permanent legal provision that an Affidavit under section 3 of Indian Evidence Act, 1872 is not an evidence.
(iii) [S.P. Chngwar Naidu Vs Jagannath. Case No. . Judgement date: 29/11/1993. BENCH: ]:- We should not have any hesitation to state that the person who stands on false/fake does not have any right to go to court. Their/his/her complain can be quashed at any stage.
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