Mr. Rebates

Friday, November 26, 2010

NFHS Discussion: Strategy and facts to remember to fight DV cases

1. What is DV Act?

[13th September, 2005.]

Chapter 1: An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India.

2. What relief/orders wife can get under DV ACT
Wife can seek the following relief’s from the concerned court -

a) An order enjoining your abuser from threatening to commit or committing further acts of domestic violence or violence to any person in whom you may be interested;
b) An order prohibiting your abuser from harassing, annoying, telephoning, contacting or otherwise communicating with you, directly or indirectly.
c) An order removing your abuser from residence;
d) An order directing your abuser to stay away from your residence, school, place of employment, or any other specified place frequented by you and another family or household member;
e) An order prohibiting you abuser from using or possessing any firearm or any other weapon or dangerous substance as specified by the court.
f) An order granting you possession of your personal effects and other necessary articles in the shared household and an order to put you again in the possession of the shared household;
g) An order granting you custody of your child or children;
h) An order denying your abuser visitation;
i) An order specifying arrangements for visitation, including requiring supervise visitation;
j) An order for interim monetary relief, including but not limited to payment of rent for the premises of the shared household, maintenance for you and your children, medical expenses and compensation for any other mental or physical injury caused to you by the abuser;

3. NFHS did study and RTI inspection of some of the magistrate orders. Our conclusion is magistrates’ are basically finding reason’s to hold husband guilty so that they can pass maintenance. Unless the husband is held guilty no order of relief can be passed against him. In one such order NFHS has found that the reason given by magistrate is “I find husband guilty of DV based on arguments, wife has produced a medical certificate of treatment and 498A is registered against husband.”  He however held that “FIL has not done any DV as a 65 years old person cannot do DV on 28 year old women”. So the important thing is to demolish all allegation of DV from her petition though it is very difficult to do so.

4. The main attraction for girls is to claim the Right to Residence (RTR) from Husband/Male partner. So make sure you do not own a house or flat in your name. Even though wife/female partner can claim RTR only against Husband/Male partner but nothing stops the wife/female partner from filing a petition under DV act and come and sit inside the house.

5. Another important point is wife/female partner can claim maintenance under the DV act. This is in addition to other maintenance ordered under CrPC 125 or HMA section 24. So in case your wife is granted maintenance under CrPC 125 or HMA section 24, then your lawyer has to forcefully argue to the court that basic need of the wife is taken care by other maintenance and hence there is no need of any additional maintenance.

6. Please note DV act cannot be filed against a female but if you are a victim of the DV act then make sure your mother files a DV case against your father-in-law/brother-in-law. This is a strategy which may not succeed but from the point of view of keeping pressure it is good.

7. Your wife/female partner can be provided with protection order from local SHO. So you should be in good relation with your local SHO else your wife/female partner can create enough trouble for you. E.g. she can simply walk to the SHO and file a complaint that you were following her or that you had threatened her in the court to withdraw cases etc.

8. Please remember that from various judgments of the various high courts, there is no clarity whether DV act is retrospective or not. Various HC’s have given contradictory judgments in this regard. Retrospective means even though DV act came into existence only in September 2006 but a husband/male partner can be booked for incidents which had occurred before DV act came into existence. But your lawyer must take this stand. The problem is even if the opposite party is able to show one incident after separation even then you can be booked.

9. Even though there is no mention of arrest in DV act but non-compliance of order by magistrate can lead to issuance of non-bailable-warrant. DV is neither purely civil nor criminal. There is a beautiful judgment in this regard from Chhattisgarh HC.

10. There was a case booked in Madya-Pradesh where even though divorce was granted in 2003 but wife restored to DV act in 2007 and that subsequently lead to non-bailable-warrant.

11. The basic difference between 498a and DV act is in 498a husband is liable for punishment but wife does not get any financial relief but in DV wife/female partner gets lots of relief but there is no punishment/arrest (unless husband violate court order). Another difference is 498a can be booked against husband or his relatives but DV can be booked only against male members of a family.

12. Another point to remember is that as per Supreme Court judgment in batra vs batra any relief to the wife cannot be granted to wife against the property of mother-in law. So it may be wise to transfer the immovable property to mother’s name but again as per Chennai HC order where husband transferred the property to wife but she captured it and HC termed it correct. So you must be very careful in this.

13. Please remember that under DV act Magistrate is having sweeping powers. So make sure not to keep much cash in the known bank accounts.

14. There is a recent Chennai high court judgment where even though the husband has transferred the property to the mothers name but high court did not like this and they passed the RTR in favor of wife. So I guess the safest way out is to sell the property and park the funds in investments which wife cannot track down.

15. The key to win DV case is demolish her evidence of violence. Normally the girls’ side will project that 498A is filed and hence violence has happened. The problem is 498A takes around 5-7 years to finish and DV runs very fast. So in the cross examination of wife all her allegations must be demolished wrt the violence.

16. Behavior in the court and how the judge observes you is very important in such cases as evidence in matrimonial cases always does not tell truth.

17. Try to give as many evidence as possible to build your cases. Even if lower court ignores your evidence then also you will have a chance in HC to argue. Remember getting a favorable order from lower court is very important as in HC mostly it is your luck.

18. Though your lawyer will discourage you from filing a lengthy affidavit but you need to make sure that her cruelty part is highlighted properly. Normally lawyers will suggest that don’t bring the cruelty as it is more relevant to the divorce case but that is not true. You need to bring every aspect of her cruelty as it will prove that you are the one who had undergone DV.

19. Attack DV in your affidavit saying the law is made on flaw and is against the principle of natural justice and against constitution of India article 15 which guarantees equality to each citizen. Though it will not help you directly but will convey the message to the judge that you might have undergone DV at the hands of your wife.

20. In your affidavit at the end you must put a paragraph mentioning how greedy women are misusing the laws made for the needy women. This will help creating awareness and help the larger cause.

21. Remember your lawyer will say just keep on denying all the allegations and finish the affidavit. That is wrong strategy. You cannot escape just by denying allegations. You need to bring out your story in proper way and convey to the magistrate that you are the one who had suffered at the hands of your cruel wife.

22. Remember your greedy wife is behind your money. She is least interested in saving the marriage or you. When she has filed a false case of DV against you means for all practical purpose marriage is dead. So you need to safeguard your finance part. There are innumerable judgments where it is ordered that educated; working women are not capable for maintenance.

23. Now the question is once your wife captures your house then how do you vacate her as she had captured just to harass you? She may not be even staying there.

24. Use 91 CrPC applications effectively to bring out true facts.

25. Use 340 CrPC applications to put them on the back foot as it deals with punishment for lying on oath.

26. Use RTI effectively to collect evidence.

27. Use TEP, DP3 etc effectively to push them to wall and to give them their own taste.

28. Talk to volunteers and attend weekly meeting regularly.

29. Never file an application in the court without reading the entire contents twice. Normally I never allow my lawyer to file application. I do all the paper work myself and enjoy it.

30. Remember there only two important things to decide DV Case. One is domestic relationship and another is domestic violence. In most of our cases domestic relationship is not disputed so only other thing to be decided is domestic violence.

31. You need to understand how the Magistrate/Session court decides the matter and how the HC/SC decides the matter.

32. Should you delay and drag the case or finish it as fast as possible.

33. Why it is dangerous
It is dangerous because it is retrospective in nature. i.e. even if any alleged domestic violence has occurred even before the implementation of this act even then this act can be used. It gives sweeping Ex-Parte relief to women even without ascertaining whether any kind of domestic violence has taken place. The wordings of the DV act are not very “happily worded” (observed by Honorable Supreme Court). So it is bound to be misused by ladies to take revenge. Magistrate can pass Ex-Parte order.

34. Use following page to get judgments related to DV:

35. Use following page to get misuse judgments related to DV:

36. Use following page to get strategy related to DV:

37. Use following page to get FAQ related to DV:

• Remember it is not about to know DV Act but rather to fight it.
• Also point of discussion will be “How to get the house captured by DIL”?
• How to reduce maintenance?
• What is relevant to decide a DV Case?
• Strategy to Cross opposite party in DV Case.
• What constitutes Evidence in a DV Case?
• How to write Chief Affidavit?

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