Oral deposition to the committee for 498A

 

Law Commission of India had several timed given recommendation to make IPC 498A bailable and compoundable.

Committee on reforms of Criminal Justice System There is a general complain that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable

24.Section 498A be inserted in table under sub section (2)of Section 320 whereby it can be compounded with the permission of the court

PAGE -81Shri M.L. Sharma, IPS, IGP(CID) (Crime Branch), Rajasthan suggested that several offences like adulteration of foods and drugs, fouling the atmosphere and forgery etc. be made cognizable and bailable. Some other offences which are non-cognizable, he suggested, should be made cognizable. In particular he suggested that section 498A which is now a cognizable offence should be converted into a non-cognizable one.PAGE-84The Bar Council of Maharashtra and Goa have suggested that the powers of the police be regulated keeping in view the guidelines laid down by the Supreme Court in D.K. Basu. They have suggested that offences under sections 498 and 498A be made bailable, but offences against property be made non-bailable. They suggested that the offences against the State, coins and weights be also made non-bailable. They supported the proposal for NGOs visiting the police stations andother places of detention and have suggested further that after the arrest, grounds for arrest shall be conveyed not only to the accused but be also to their relatives. Another suggestion is to make the offences under sections 307 and 498A compoundable.PAGE-112Another recommendation made in the 154th Report is to make the offence under section 498A compoundable and place it in sub-section (2) of section 320 which means that it shall be compoundable with the permission of the court. Though there has been some opposition to this recommendation from certain women’s organizations, today there is an overall realization that the said provision is being utilized quite often to harass the relatives of the husband and is being used as a lever of pressure. We may also mention that over the last several years a number of representations have been received by the Law Commission from individuals and organizations to make the said offence compoundable. We are inclined to agree with the same and accordingly reiterate the recommendation in the 154th Report that the offence should be made compoundable with the permission of the court.

Recommendations of the Malimath Committee on reforms of Criminal Justice System

16. Offences Against Women
There are several shortcomings or aberrations in dealing with the offences against women which need to be addressed. The Committee feels that a man who marries a second wife during the subsistence of the first wife should not escape his liability to maintain his second wife under Section 125 of the Code on the grounds that the second marriage is neither lawful or valid.

The Supreme Court has held that, for proving bigamy, it is to be established that the second marriage was performed in accordance with the customary rites of either parties under the personal laws which is not easy to prove. Therefore the Committee feels that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that marriage was performed according to the customary rites of the parties.

As a man can be punished under Section 497 of the IPC for adultery, for having sexual intercourse with a wife of another man, it stands to reason that wife should likewise be punished if she has intercourse with another married man.

There is a general complain that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.

The controversial Section 498A

Pankaj Sharma/Zee Research Group

The husband-wife dispute story has taken a new turn with the government expeditiously seeking a review of the controversial Section 498A. The Section was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives treating it as a non-bailable offence with a three years punishment plus a hefty fine.

The review was ordered by the Home Ministry which inducted Law Commission to issue a discussion paper in April this year. But the backgrounder note prepared by the Commission only leaves the option wide open with strong arguments for and against the review.

The Home Ministry ordered the review following increasing number of complaints from groups representing the interests of men charging that they had been wronged by the current law. This coincided with about 35 per cent rise in number of deaths of husbands caught in dowry dispute during 2007-09. Dowry deaths in case of women grew by just about 3.5 per cent during the period.

As per the latest figures compiled by the National Crime Record Bureau (NCRB), between 2007 and 2009 a total of 24,648 women died due to dowry disputes as against 169 in the case of men.

The Commission backgrounder argued for a review on the ground that once a complaint (FIR) is lodged with the police it becomes an easy tool in the hands of the police to either arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. It concluded thus that when the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage would be lost once and for all.

Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over-zealous or callous actions on the part of the police by taking advantage of the harsh provisions of the Section 498A, the commission pleaded.
In its argument for status quo, the Law Commission note argued that Section 498A and other legislations like Protection of Women from Domestic Violence Act had been specifically enacted to protect a vulnerable section of the society who has been the victim of cruelty and harassment. “The social purpose behind it will be lost if the rigour of the provision is diluted. The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law,” it argued.
Chairperson of National Commission for Women (NCW), Yasmeen Abrar favoured amendments in Section 498A without diluting its core. “Several instances of wrong cases registered against husbands have come to the fore but it is important to recognize that vulnerability of wives has to be protected at any cost.”

However, Supreme Court senior advocate Pinki Anand opposes any amendment in the Act: “I don’t think if there is really any major amendment require in the Section 498A of IPC. Judiciary is there to take any decision if anyone misuses the Act.” She though sought exemption from arrest for relatives of husband in such disputes.
On increasing death of husbands due to dowry and divorce cases, she alleged that “these figures are misleading and far away from reality. Section 498A of IPC shouldn’t become bailable offence because if any offence becomes bailable in India it also becomes ineffective.”

The Law Commission is now busy collating the feedback it has received in response to its questionnaire and hopes to submit its report to the Home Ministry this month end

Disorder in the American Courts

 

These are from a book called 'Disorder in the American Courts' and are things people actually said in court, word for word, taken down and now published by court reporters that had the torment of staying calm while these exchanges were actually taking place.

______________________________________________________________________

ATTORNEY: This myasthenia gravis, does it affect your memory at all?

WITNESS: Yes.

ATTORNEY: And in what ways does it affect your memory?

WITNESS: I forget.

ATTORNEY: You forget? Can you give us an example of something you forgot?

__________________________________________________________________________

ATTORNEY: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?

WITNESS: Did you actually pass the bar exam?

__________________________________________________________________________

ATTORNEY: The youngest son, the twenty-year-old, how old is he?

WITNESS: He's twenty, much like your IQ.

__________________________________________________________________________

ATTORNEY: Were you present when your picture was taken?

WITNESS: Are you sh*tting me?

__________________________________________________________________________

ATTORNEY: So the date of conception (of the baby) was August 8th?

WITNESS: Yes.

ATTORNEY: And what were you doing at that time?

WITNESS: getting laid

__________________________________________________________________________

ATTORNEY: She had three children, right?

WITNESS: Yes.

ATTORNEY: How many were boys?

WITNESS: None.

ATTORNEY: Were there any girls?

W ITNESS : Your Honor, I think I need a different attorney. Can I get a new attorney?

__________________________________________________________________________

ATTORNEY: How was your first marriage terminated?

WITNESS: By death.

ATTORNEY: And by whose death was it terminated?

WITNESS: Take a guess.

__________________________________________________________________________

ATTORNEY: Can you describe the individual?

WITNESS: He was about medium height and had a beard.

ATTORNEY: Was this a male or a female?

WITNESS: Unless the Circus was in town I'm going with male.

__________________________________________________________________________

ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?

WITNESS: No, this is how I dress when I go to work.

__________________________________________________________________________

ATTORNEY: Doctor, how many of your autopsies have you performed on dead people?

WITNESS: All of them. The live ones put up too much of a fight.

__________________________________________________________________________

ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?

WITNESS: Oral.

__________________________________________________________________________

ATTORNEY: Do you recall the time that you examined the body?

WITNESS: The autopsy started around 8:30 p.m.

ATTORNEY: And Mr. Denton was dead at the time?

WITNESS: If not, he was by the time I finished.

__________________________________________________________________________

ATTORNEY: Are you qualified to give a urine sample?

WITNESS: Are you qualified to ask that question?

__________________________________________________________________________

And the best for last:

ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?

WITNESS: No.

ATTORNEY: Did you check for blood pressure?

WITNESS: No.

ATTORNEY: Did you check for breathing?

WITNESS: No.

ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?

WITNESS: No.

ATTORNEY: How can you be so sure, Doctor?

WITNESS: Because his brain was sitting on my desk in a jar.

ATTORNEY: I see, but could the patient have still been alive, nevertheless?

WITNESS: Yes, it is possible that he could have been alive and practicing law.

NFHS MEMO to CJ Seeking justice for Fathers and Children separated due to marital discords on the eve of Father’s Day

 

To 17th June 2011

Hon’ble Chief Justice

High Court of Karnataka

Subject: Seeking justice for Fathers and Children separated due to marital discords

Hon’ble Chief Justice,

We seek your personal and valuable intervention in setting right the gross injustice being done to men and children in matters of matrimonial conflicts where custody of children is granted only to women, with total disregard to the love and affection that fathers and children have towards each other.

Fathers are denied custody as a rule rather than an exception. If at all visitation is ordered to fathers, it is limited to 30 min or 1 hour in a month contrary to the requirement of the UN resolution that no child should be denied access to either of the parents.

We are constrained to bring to your notice that Indian Family Courts appear to have declared a war against fathers and are adopting every possible means to create a “fatherless society” and to reduce men to mere ATM machines and sperm donors.

Family Courts have adopted the unhealthy practice of

• · Depriving fathers of the right to love and care for their biological children.
• · Forcing fathers to pay huge sums of money to support children they are not allowed to see.
• · Encouraging false allegations of abuse to paint fathers as unfit parents.
• · Permitting multiple legal battles to eliminate biological fathers from their children’s lives.
• · Passing ex-parte orders based solely on the allegations made by a child’s mother.
• · Allowing mothers to brazenly disobey visitation orders without legal repercussions to them.
• · Allowing biological fathers to be labelled “kidnappers” for trying to make contact with their own children.
• · Prolonging custody/visitation matters for years, thereby driving fathers into financial and emotional bankruptcy and forcing them to give up the desire to see their children.

Cases filed in Family Courts linger on indefinitely while wives enjoy full custody of children, interim maintenance and child support at the expense of husbands.

The attitude of the Family Courts in the matters of ordering child custody/visitation, maintenance and alimony is completely biased against husbands.

While there is much emphasis on a wife’s rights on husbands and children, no order is passed on the responsibilities of a wife towards herself and her matrimonial family. Husbands, on the other hand, are heaped with disproportionate responsibilities with no rights over their wives or children.

The brazenly anti-male mindset of Indian Family Courts is making it a crime to be born male in India. The continued onslaught on men and manhood is gradually destroying the faith of men on the system of marriage and societal values as a whole. As a result many men are being forced to commit suicide or shun marriage altogether paving the way for a fatherless society full of single mothers in the future.

We request the Hon’ble Chief Justice to ponder over these issues and contribute towards promoting a congenial atmosphere in the Family Courts for men, women and children.

On the occasion of Fathers’ Day, we wish to make the following demands:

Reforms in Mediation Counseling and Pleadings:

1. 1. The presence of and pleadings by Advocates in the Family Court and mediation process should be eliminated as mandated by the Family Courts Act.
2. 2. Persons who are professionally qualified and have a balanced perspective on family and society should be appointed as counsellors and mediators.
3. 3. Counsellors and mediators should be adequately compensated fixing a rate of at least Rs. 20,000 per case, made payable by the spouses equally.
4. 4. Mediators should be given exclusive powers to decide on dates and adjournments and should be required to conduct mediations and counselling throughout the year without holidays.
5. 5. No in-camera and chamber proceedings should be held unless absolutely necessary and the purpose duly recorded in the Court register.

Perjury

1. 1. Courts should order perjury and contempt proceedings in case of exaggerated statements and false allegations or affidavits related to employment, earnings, cruelty etc. when such allegations are proved to be false.
2. 2. Spouses making false allegations should be punished under the appropriate sections of the Indian Penal Code.

Child Custody matters:

Family Courts should ensure that both parents are given equal custody of children irrespective of the accusations of either party (such as a mother being adulterous or a father being a drunkard). The practice of showing children for 30 minutes or 1 hour like a TV show to a father without providing him an opportunity to demonstrate his fatherly care and affection should be done away with. We strongly denounce the attitude of the Family Courts which consider children as the exclusive property of the wife and totally deny access to the husband and his family while passing interim and final orders.

We strongly condemn the belief of the Family Courts that the husband alone is bound to earn and maintain his wife and children, even though the wife is either earning or sufficiently qualified to earn.

The practice of passing orders for monetary compensation, should be done away with and instead, parents should be directed to share the responsibilities like buying medical insurance, pay the school fee, purchase clothes, books etc., for children based on their respective and combined financial capacities.

The following steps should be immediately taken by Family Courts across the country to uphold the rights of fathers and ensure the welfare of children:

• · Special fast-track courts should be set up at the earliest to deal with custody issues.
• · Exclusive, fully functioning Divisional Bench should be set up in all High Courts and Supreme Court to hear appeals in matters of child custody.
• · When a person or couple approaches court for divorce, counseling of the parents by professional counselors should be given first priority.
• · Except in extreme cases of violence or unhealthy behavior by either partner, children should be given equal and meaningful access to both parents and grandparents on both sides.
• · Both parents should be given financial responsibility of the child proportionate to their earnings and not based on demands made by either partner.
• · If a partner prevents a child from having equal and meaningful contact with the other partner, they should be counseled first to understand the importance of equal parenting and the best interest of a child.
• · If either partner repeatedly disobeys orders of equal access and meaningful contact with children, then the children should be placed in the full custody of the partner who will allow equal access to the other parent.

We submit that our demands are just and reasonable and that the non-implementation of our demands will result in serious consequences to men, women, children, families and the society as a whole.

We enclose, herewith, the petitions signed by hundreds of fathers in the Family Courts in Bangalore. We look forward to your prompt intervention and necessary action in this regard.

Sincerely,

HC to Family Court: Don't consider wife statement gospel truth and husband statement as lie

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/427799/1/WP4594-00-13-06-2002.pdf

Widow turns accomplice in murder of Chennai software engineer

The June 2 murder near Tindivanam of a city-based software engineer is becoming more complex. A 36-year-old widow, arrested in the city on Saturday, has unwittingly become an accomplice to the killing, the police say.

According to the police, C Parthasarathy, employee of a BPO call centre in Tidel Park, was kidnapped by a gang on June 2, taken to Tindivanam and strangled before the body was burnt and dumped amidst bushes near a toll gate in Olakkur near Tindivanam.

On Friday, the police arrested Parthasarathy’s father-in-law Narasimhan, an assistant engineer with Metrowater, and the assailants Dileep Kumar, Janakiraman and his brother Hemanth Ram.

Based on their confession, the police arrested Saluja of Villivakkam. She told the police that to help Narasimhan she hired the assailants to teach a lesson’ to Parthasarathy. “Saluja met Narasimhan when she went to get a Metrowater connection for her house in Villivakkam. They again met at a yoga centre in Villivakkam and began meeting often,” the police said, based on Saluja’s statement.

When Narasimhan didn’t come to the yoga class continuously for more than a week, Saluja contacted him and learnt about the sudden marriage of his daughter Saranya to a Parthasarathy, a software engineer. Narasimhan, Salayuja told the police, wanted to teach a lesson to Parthasarathy and initially only asked her to help threaten him. Later, he expressed a desire to eliminate Parthasarathy, Saluja, who works in a marriage information centre in the city, told the police.

Saluja’s late husband and the father of Dileep one of the assailants were colleagues in the ICF and she knew Dileep and his brother Janakiraman. First asked to threaten Parthasarathy, the two demanded Rs 5 lakh when told that they would have to eliminate him, the police said. The two then engaged their friend Hemanth Ram to help them, the police added.

“The trio closely followed Parthasarathy for many days before kidnapping him on June 2 and taking him in rented Tata Indica to Tindivinam where he was done to death,” a police officer said.

“We will take Dileep Kumar and Janakiraman into custody for questioning. We have to recover many valuables from them. We are also planning to stage a demonstartion of the murder which will be videographed. An identification parade will be conducted in the prison in front of a magistrate soon,” Villupuram superintendent of police Xavier Dhanraj told TOI.