Mr. Rebates

Saturday, January 30, 2010

Should dowry law be diluted?The gender war carries on...

Pallavi Srivastava, TNN, 28 September 2008, 12:45am IST

Can the stringent and controversial Section 498A, commonly called the 'dowry law' last another quarter-century in its present form? Women's groups say 'yes' because when it was inserted into the Indian Penal Code 25 years ago, it gave women a matchless legal shield against violence and cruelty at the hands of the husband and his family. ''No, Section 498A should go,'' say about 30 men's groups, currently meeting in Goa to find a way to dilute the law. So why has Section 498A become the frontline of India's gender wars? And whose side will the government take? For the moment it appears to be backing the women with no dilution likely in the law any time soon.

Organisations campaigning to amend Section 498A were euphoric earlier this month, when the Women and Child Development (WCD) Ministry agreed to review it. But women's groups immediately submitted a memorandum to the WCD expressing concern about any dilution. So did the National Commission for Women (NCW), the statutory body set up to protect and promote women's interests and advise the government on policy matters affecting women.

Women's rights campaigners repeat as they have for decades that Section 498A is invaluable because it provides a stronger voice to women than usually heard in Indian society. What gives the law teeth and a terrible bite is that any offence under it is non-bailable and non-compoundable, which means it cannot be privately resolved between the parties concerned. It's also cognizable, which means it allows police to arrest the accused without investigation or warrants if a woman or close relative alleges cruelty in the marital home.

Those found guilty face a jail term of upto three years. But the unique strength of Section 498A is also seen as a weakness. Many groups of aggrieved husbands say this fearsome law, with its non-bailable and non-compoundable provisions, is being abused by women falsely to implicate the spouse and in-laws and extort money from them.

Organisations that represent men, who claim they are harassed, victimised and abused by Section 498A, insist it must become bailable and thereby, bearable. Swarup Sarkar, coordinator of Save Family Foundation, an organisation that claims to be committed to fight ''all gender-biased law" says, ''For the last three years, we have been trying to make it bailable, but now that the NCW has expressed disapproval, the ministry's review will amount to little."

Many other harassed husbands' groups share Sarkar's fears. "The announcement is just a sham. They won't come up with anything," says Vihan Khera, spokesman of MyNation Foundation, an organisation that also describes itself as "fighting gender bias". In fact, the Internet is full of men who claim to be victims of this law. There are blogs with names such as, 'Section 489A'. Their entries vary from earnest to intensely vitriolic.

Mary E John, director of the Centre for Women's Development Studies, says the Internet is partly responsible for whipping up emotion against 498A. "Anyone can see how vindictive and vicious these groups are," she says, adding that the Internet has given far too much visibility to self-styled harassed husbands. She and other women's activists say that amending 498A because a few men claim it is unfair would be tantamount to changing "the Income Tax Act if people evade tax. The law per se is not defective."

But Khera, campaigner for men's rights, says it is lop-sided and unfair to women as well. In the last four years, 1,15,000 women mothers-in-law or other female relatives of the husband - are alleged to have been arrested without investigation.

Mary John admits that sometimes, even statistics don't tell the true story and "there are no figures for false cases." The only figures about Section 498A are its low rate of conviction, perhaps due to lack of evidence. But John says this still does not mean 498A is a bad law. "Based on the rate of conviction, you cannot change the law, whether it's rape or dowry," she says.

The pro-Section 498A lobby points out that it's not that easy to misuse it because its use is hard enough. They say that it is hard for the average woman even to lodge a case under Section 498A and some times, it could take months. They say that making domestic violence a gender-neutral offence misses the point because it's women who are generally dependent and vulnerable. 'Harassed' husbands would, of course, have a different story to tell. Justice may be blind, but it sure cannot afford to be deaf.

NRIs cry foul over IPC 498A, dowry law

PTI, 14 January 2007, 03:06pm IST
NEW DELHI: Many NRIs are crying foul over the alleged misuse of anti-dowry law with social activists claiming that Indian men and NRIs are becoming soft targets of IPC 498A. Once a case is registered under 498A, the police gets into action and books the groom and his family and they are immediately taken into custody. And if the groom is an NRI, a 'Red Corner Notice' is issued against him and his passport impounded. It is a cognizable offence and a non-bailable offence, one has to get the bail from the court, if, booked under 498A.

In order to protect the rights of the male bastion, groups like ‘’, ‘Rakshak’ and ‘Save the Indian Family’ are not only taking the issue to Parliament but have also presented memorandums to the Prime Minister and President.

"IPC Section 498A can potentially ruin a man and his family both mentally and financially," said Dr Anupama Singh, convenor, Singh's family has been dragged to the court and falsely booked under IPC 498A.

"The Indian judiciary and police are so crippled by this law that no sooner does a woman lodge a complaint that the man and his family are booked," she alleged.

"Around 58,000 dowry cases were registered last year, out of which 25,000 were proved to be false," Singh claimed.

So much so, the NRIs claim that most Indian girls dream of a lavish stay abroad, but when the party ends, they come back to India and lodge complaints.

"My wife thought that we would always keep on travelling to wonderful places, but I have a job to do and I am not a money minting machine. As soon as she knew that, she left me and after reaching India booked me and my family under domestic violence act and dowry laws," Naveen from Florida said.

However, the Commission doesn't agree that there is no inside story about it. "There is no smoke without fire," the official said.

"If NRI men are facing the threat of losing their jobs and social status, then they should consider not marrying in India. We have third generation NRIs, so what's the point coming to this land. If you marry in India, then you have to abide by the laws of the land," she insists.

And as far as revision of the law is concerned, NCW maintains that this is the sole way to ensure women empowerment and this is the only way to instigate the police and judiciary to get working.

"The idea should be to see how the police system works, the concerned official out there should not lodge an FIR and arrest the groom and his side before investigating. These kind of shortcuts are mainly tainting the image of the prevailing law," NCW spokeswoman added.

The Commission also agreed that not all should be booked under this law. "The way uncles, aunts are also humiliated is not fair, we agree that they should not be booked until a full-proof investigation is carried out. Instead of amending the law we should try to improve our police system and investigating procedure," she said.

With Pravasi Bhartiya Divas being held in the city and the government wooing the NRIs to invest in India, this matter needs to be settled, so that NRIs don't scrap all ties with their roots.

Amendment may make dowry law toothless

Abhinav Garg, TNN, 19 January 2009, 12:43am IST

NEW DELHI: Buried under vociferous calls by bar associations for court boycott and strikes, a largely unnoticed fallout of the CrPC amendments has

begun to bother astute legal observers in the capital. Had lawyers agitating against the amendments highlighted this instead of issuing threats to shut courts, they would have better mobilized public opinion against these amendments.

For, once the amended law comes into force, Section 498A of IPC (dowry harassment) will become a toothless penal provision as errant husbands and in-laws will no longer face the possibility of being shunted to jail for harassment. The amendment empowers police to simply issue a ‘notice of appearance' to the accused instead of putting him behind bars in cases under Section 498A of IPC, which has a maximum punishment of three years.

It also means the deterrent effect behind Section 498A — fear of arrest by police — evaporates. Experience has shown that, at present, in-laws and husband fall in line as soon as they realize they might be whisked away to jail by cops, and more often than not, readily undertake to take care of the victim before courts hear their anticipatory bail pleas.

However, this might now change with the sting being taken out from the provision, says advocate Shipli Jain. She explains: "Almost half of the cases in criminal courts in Delhi are related to dowry-harassment bail pleas. We often notice that a husband and his parents become very forthcoming for a settlement when they realize a court might dismiss their bail applications. The amendment makes matters very easy and convenient for them. Most dowry cases get settled at the bail stage itself, something that won't happen now."

But isn't the provision of arrest under 498A a grossly misused one? Jain counters by saying: "Lots of divorces have been saved because men are scared of throwing women out of the house lest they be booked under 498A. In a way, it is the most effective provision despite the presence of the special laws like Domestic Violence Act."

Another noted women lawyer from Delhi, Minaxi Lekhi, also felt the CrPC changes will lead to problems: "At the end of the day, criminal laws mean threat of arrest."

HC judge lashes out against 'culture of adjournments'

TNN, 29 January 2010, 01:59am IST
Topics:Delhi high court judge Justice S N Dhingra

NEW DELHI: A Delhi high court judge has blamed his colleagues for the "culture of adjournment'' that often prolongs cases for years.

Rueing the "lattitude shown by the high court'' to lawyers who plead for adjournments, justice S N Dhingra said: "It appears as if there is an understanding between the courts and advocates that come what may the orders of trial courts refusing adjournments shall be set aside on mercy pleas and one more opportunity shall be granted.''

Claiming that courts often grant adjournments on "frivolous grounds'', Dhingra said: "A separate breed of advocates has cropped up who are experts in pleading for adjournments and dragging cases. This culture has to be brought to an end,'' the HC noted, while upholding a order passed by a guardianship court in a child custody dispute between a couple. The court refused to adjourn the case when the woman's lawyer claimed that he had left the case files in his car which was stolen 11 days ago.

The HC agreed with the decision of the lower court to proceed with the hearing and close cross examination of witnesses, despite protests by the advocate of the child's mother. "Adjournments are sought in the name of strikes, elections, personal difficulties of the senior or briefing counsels or because two counsels agree to an adjournment... This wholeculture of adjournment is a major reasons why a case or a petition, which should be decided in two or three hearings, is disposed of in more than 100 hearings,'' the HC noted while dismissing the appeal filed by the child's motheragainst the lower court's order.

Dhingra said since the child was currently with the mother, she was making all attempts to prolong the hearings into the custody dispute.

Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken from one member nation to another. Proceedings on the Convention concluded 25 October 1980 and the Convention entered into force between the signatory nations on 1 December 1983. The Convention was drafted to “insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.”[1] The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

Procedural Nature

The Convention does not provide any substantive rights. The Convention provides that the court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left behind parent.

The Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights.[2] The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.[3]

Wrongful Removal or Retention

The Convention provides that the removal or retention of a child is “wrongful” whenever:

"a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

"b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.[4]

"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."[5]

Habitual Residence

The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.[6]

Special Rules of Evidence

The Convention provides special rules for admission and consideration of evidence independent of the evidentiary standards set by any member nation. Article 30 provides that the Application for Assistance, as well as any documents attached to that application or submitted to or by the Central Authority are admissible in any proceeding for a child's return.[7] The Convention also provides that no member nation can require legalization or other similar formality of the underlying documents in context of a Convention proceeding.[8] Furthermore, the court in which a Convention action is proceeding shall “take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable" when determining whether there is a wrongful removal or retention under the Convention.[9]

 Limited Defenses to Return

The Convention limits the defenses against return of a wrongfully removed or retained child. Those defenses are:

(a) by preponderance of evidence, that Petitioner was not “actually exercising custody rights at the time of the removal or retention” under Article 13; or

(b) by preponderance of the evidence, that Petitioner “had consented to or acquiesced in the removal or retention” under Article 13; or

(c) by preponderance of the evidence, that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings, under Article 12; or

(d) by preponderance of the evidence, that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection, under Article 13; or

(e) by clear and convincing evidence, that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b); or

(f) by clear and convincing evidence, that return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.

Signatory Countries

The map shows the Signatory Countries to the Convention as of June 2009. Conference member countries in dark blue:


^ Hague Convention, Preamble.
^ Hague Convention, Article 4.
^ Hague Convention, Article 11.
^ Hague Convention, Article 3.
^ Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session ("Explanatory Report"), 71, at 447-48
^ Mozes v. Mozes, 239 F.3d 1067, 1073 (US 9th Cir. 2001)
^ Hague Convention, Article 30
^ Hague Convention, Article 23.
^ Hague Convention, Article 14

External links

Full Text of the Convention
US State Department International - Parental Child Abduction - Compliance Report 2009 (PDF; 5,36 MB)
Wording of the convention
Contracting States
The Child Abduction Section of the Hague Conference website
Database of cases based on the Convention.
Japanese translation of the Hague Convention on the Civil Aspects of International Child Abduction
Case law and materials including Hebrew documents

See also

Child abduction
Child laundering
Child harvesting
List of international adoption scandals

India's Notorious Section 498A: Divorce Law as Criminal Law

by Jeremy D. Morley
India’s amendments to its Criminal Procedure Code are now effective. They may ameliorate some of the harshest aspects of India’s infamous Section 498A. The newly- enacted provisions take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence up to seven years of imprisonment. Such offenses include Section 498A of the Indian Penal Code in 1983.

That section makes it criminal for a husband and his relatives to subject a married woman to cruelty is which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property.

The problems with the law were the result of a “perfect storm” that was entirely unanticipated when the law was introduced to protect woman in 1983. The elements of the storm included:

- Extremely vague statutory language.

- A separate law that prohibited the provision or acceptance of a dowry.

- A custom that has been difficult to eradicate of a bride giving a dowry upon marriage.

- A law that may only used by women against men.

- A provision that extends criminality to any of the husband’s allegedly-participating relatives.

- A police force that is notoriously corrupt.

- A law that in the past allowed for the immediate arrest of the husband and members of his family by the police on the basis of a woman's complaint.

- A provision that the offense was non-bailable.

- A domestic relations procedure that is extremely cumbersome and in many ways unworkable.

The result has been that when a marriage breaks up the woman is often able to get her husband and many of his family members arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrongdoers. This is much more effective than initiating an ordinary case for divorce.

In the case of non-resident Indians the process has often proved calamitous for the husband. The spouses have an argument. She runs off to India, often with the children and as many of the assets as she can grab. She immediately starts a Section 498A case in India and then sues for divorce and custody in India. The husband cannot step foot in India because he will be arrested. Meanwhile his relatives in India are clamoring for him to settle up with his wife because they have been in jail or are fearful that that will happen. The Supreme Court of India has described such conduct as “legal terrorism.”

The chairperson of one of India’s State Commissions for Women has asserted that, "Many women are using 498A of the IPC (anti-dowry law) to terrorize their husbands and his families.” She called it a “cruel and wicked design to blackmail husbands and in-laws."

As recently as January 31, 2009, Justice K. G. Balakrishnan, the Chief Justice of India, addressing India’s National Commission for Women, asserted that Section 498A is being “grossly misused” and that relatives not involved with a matrimonial dispute were often unfairly implicated.

The U.S State Department has warned Americans that: “Furthermore, since the police may arrest anyone who is accused of committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often used to escalate personal disagreements into criminal charges. This practice has been increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other persons with whom the U.S. citizen has a disagreement, occasionally resulting in the jailing of U.S. citizens pending resolution of their disputes.”

Let us hope that some of the worst excesses of the draconian law have now been reduced by the recent procedural changes.

Christian Law of Divorce in India

The British colonization of India, has had a tremendous impact on the legal system in India. In many respects, English law in letter and spirit came to be applied in India. Even when the law relating to Christian marriage was still in a fluid state, British Indian Administration thought it necessary to bring in a law for divorce among Christians. They thought that the English law on the subject, the Matrimonial Causes Act of 1857 with necessary modifications, could be applied in India. Thus, the Indian Divorce Act 1869 came to be enacted in India by the Governor General in Council and applied to the Christians throughout India except the Princely States, former Portuguese and French settlements and certain tribal areas. Subject to such exceptions, generally speaking, the Indian Divorce Act, 1869 is the law of divorce for Christians in India.

An authoritative exposition of Christian law of divorce in India is given in the book Christian Law of Divorce by Advocate Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin,Kerala, India.

The Divorce Act of 1869

The Indian Divorce Act was enacted in 1869 to "amend" the then existing law on divorce and matrimonial causes of Christians, and to confer jurisdiction upon the High Courts and District Courts in matters matrimonial. It does not appear to be a comprehensive legislation on the subject. This is evident from the Preamble to the Indian Divorce Act, 1869 which states: "Whereas it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain courts jurisdiction in matters matrimonial…". It is pertinent to note that it was not to 'make' or 'consolidate' the law, but to 'amend' the law that the Act was passed. This means that there was some law then existing and the Divorce Act was to be part of that law. The concept of amendment in law postulates an antecedent law in force and in some cases the bulk of that antecedent law is kept alive and only the dead wood removed. Wherever there is no law, the legislature would specifically note the position. On the contrary wherever there is a law and when the legislature wants to consolidate and amend the law, such intention is expressed in explicit terms. For example the Preamble to the Indian Christian Marriage Act may be read in contra distinction with that of the Indian Divorce Act, 1869. Preamble of the former reads: "An Act to consolidate and amend the law relating to the solemnisation in India of the marriages of persons professing the Christian religion". Now, therefore, it becomes evident that the Indian Divorce Act does not consolidate the law of divorce, but it only amends the law and aims only at a limited intervention in the law by conferring jurisdiction on certain Courts to exercise the same in these matters. And in the exercise of that jurisdiction the Court was to act on the principles of English Divorce Courts as was provided under Section 7 of the Act.

At this juncture, it is of interest to note that even in England, the substantive law on matrimonial causes was not altogether abrogated by the Matrimonial Causes Act, 1857. Lord Merriman opined that the principles that the Courts in England must follow in nullity cases were those of the old Ecclesiastical Courts and that neither the statute nor the common law of England had interfered with the pre-Reformation canon law. Thus the Matrimonial Causes Act, 1857 was not a comprehensive one with reference to England either. The Matrimonial Causes Act of 1857 is the basic structure upon which the Indian Divorce Act of 1869 has been built. Therefore, for a proper appreciation and application of the provisions of the Indian Divorce Act, 1869 in India, it requires an examination of the law in England and its development through the centuries.

Origin and Development of English Law on Divorce

From early Saxon times, side by side with the civil law, there existed ecclesiastical law, even when the Court had jurisdiction in both civil and ecclesiastical matters. There was an intimate union of Church and State, a union in which the royal authority constantly upheld the authority and national position of the Church. The superior clergy took a major role in legislative activities and in the administration of justice as well as in general government. With the defeat of King Harold at the battle of Hastings in 1066 A.D, by William the Conqueror with the support of the then Pope, the practice of dealing with ecclesiastical and temporal affairs in the same court was abolished and the Bishop and the Archdeacon had his own Court. And the marriage law of England became the canon law. The substantive law that was administered in the Church courts,(Courts Christian) was, first and foremost, the Holy Scriptures in the so-called "Vulgate" version, the one made by St. Jerome in the fourth century. And a mass of specific regulations announced by various Councils, both general and local, as well as the decrees of Popes, had all the aspects of legislation and were treated as laws. All the compilations and collections were, from the sixteenth century, known as the Corpus Juris Canonici, (the Body of Canon Law) formed the basis of the law administered by the Church courts. An authority on history notes: "The ecclesiastical Courts had, certainly from the twelfth century undisputed jurisdiction in matrimonial causes. Questions as to the celebration of marriage, as to the capacity of the parties to marry, as to the legitimacy of the issue, as to the dissolution of marriage, were decided by the ecclesiastical Courts administering the canon law".

However, difficulties began to develop between Church and State. In 1164 A.D, King Henry II wanted to abolish many of the privileges of the clergy and forbade appeals to Rome. But later, the King had to give up his efforts. In 1532 A.D, King Henry VIII forbade marriage case appeals to the Pope in the Statute of Appeals. This was followed by the Act of Submission of the Clergy. Finally, when the King could not get an annulment of his marriage by the Pope, he proclaimed himself 'Supreme head in Earth of the Church of England', in the year 1534. By another Act, it was provided that dispensations for marriage could be given only by the Crown, but at the same time, there was to be no departure from the true Faith of the Catholic Christian Church. The Church courts became royal courts after Henry VIII, but retained their independence of the Common Law Courts. The older Canon Law was not repudiated, but a new canon law was built up on it. It is pointed out: "The influence of the Canon Law on English law in general is a chapter of English legal history that has not yet been written…….Further investigation of the interrelation of the law of the Courts of King and of the bishop is certain to give fruitful results".

Thus the Statutes subordinated the Church to the State, and the Church Courts to the law of the land. But it would be wrong to suppose that the Church was to lose her liberty in toto. The position that emerged out of the conflicts was that the state law was to have predominance over the Church law only when there was a conflict between the two. Otherwise, the Church law was to have its sway.

The right of the Church to have her own courts and her own law remained unchallenged. But an Act of 1836 had paganised marriages by providing for marriages before a Civil Registrar. With certain exceptions, the matrimonial law of the Church survived until 1857. The Matrimonial Causes Act of 1857 established a new temporal (civil) court to exercise jurisdiction in all matrimonial causes. Thus, marriage, which had once been a sacrament, became merely a civil contract in England and the logical sequel was that it could no longer be held to be indissoluble. This led to the introduction of divorce a vinculo by a temporal Court. And the Church lost the last remnant of her jurisdiction in matrimonial causes in England. The Established Church not only lost her jurisdiction in marriage cases, but also in her ministry and in her attempts to revise her canon law. She had to look to Parliament for its assent for needed changes even in canon law.

But a closer look into these developments would show that the substantive law on marriage and the basis of its validity still continued to be the canon law. It can be found that the Matrimonial Causes Act, 1857 did not substantially differ from the substantive law contained in canon law as the Act was not a comprehensive legislation on the law of marriage and it only made certain amendments to the then existing canon law as is evident from its Preamble which reads: "An Act to amend the law relating to divorce and matrimonial causes in England. Whereas it is expedient to amend the law relating to divorce, and to constitute a court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dissolution of marriage: Be it therefore enacted…"

And the Courts continued to apply the principles of canon law for deciding the validity or otherwise of a marriage. This is reflected in the judgment of Lord Penzance in 1866 Lord Penzance, wherein he held: "Marriage as it is understood in Christendom is the voluntary union for life of one man and one woman to the exclusion of all others". And the above statement of law came to be accepted and acclaimed as 'definition of Christian marriage'. The statutory provision and the position of law remained the same even after the enactment of the Judicature Act, 1873. This Act finally vested the jurisdiction in matrimonial causes in the High Court of Justice (Matrimonial, Probate and Admiralty Division). The various Acts that followed did not effect major changes in the substantive law. And the Supreme Court of Judicature (Consolidation) Act, 1925 specifically provided: "The jurisdiction vested in the High Court and the Court of Appeal respectively shall, so far as regards procedure and practice, be exercised in the manner provided by this Act or by rules of Court, and where no special provisions contained in this Act or in rules of Court with reference thereto, any such jurisdiction shall be exercised as nearly as may be in the same manner as that in which it might have been exercised by the Court to which it formerly belonged". And such jurisdiction formerly belonged to the Ecclesiastical Courts in England. Therefore Lord Merriman laid down that the principles which the Court must follow were, in nullity cases, those of the old Ecclesiastical Courts and that neither the statute nor the common law of England had interfered with the pre-Reformation canon law.

If one goes through the entire statutory law of England from 1857 to 1925, it can be seen that the civil law had not specified any ground for declaration of nullity of marriage and those grounds remained the same as those provided under the laws of the Church. The statute came into being for the purpose of conferring exclusive jurisdiction on certain courts and to provide for grounds of divorce, which the Church had not recognised. The Indian Divorce Act, 1869 is to be understood and interpreted in the background of the development of the law in England, as explained above.

Evolution of the law of divorce in India

It was Whitely Stokes who framed the Bill on Indian Divorce. The Draft of the Bill was submitted to the several High Courts for their opinion and the communications received from the Judges at Calcutta and Bombay were laid before the Council of the Governor–General. Sir Henry Maine originally introduced the Bill on the 24 December 1862. While introducing the Bill, Sir Henry Maine stated in the Legislative Council thus: "This measure is obviously one of great importance…. It is substantially a consolidation measure. It puts together the English Statute Law on the subject in a more orderly form and in clearer language, and it incorporates the recent decisions of the Divorce Court. But in the main its principles are those of the Statute regulating the jurisdiction of the English Court of Divorce and Matrimonial Causes" "It is also to give effect to the policy embodied in the High Courts Act passed in 1861, (24 and 25 Vict. Ch. 104) and to the Letters Patent issued by Her Majesty for constituting the High Courts. The object of the High Courts Act seemed to have been not so much to create new branches of jurisdiction, as to constitute and redistribute the power, which already existed. The 9th clause gave power to Her Majesty to confer on the High Courts such matrimonial jurisdiction as she thought fit; but Her Majesty did not attempt to confer on the High Courts such jurisdiction as was exercised by the Divorce Court in England. The Secretary of State, therefore, requested the Governor-General to introduce a measure conferring a jurisdiction on the High Courts in India similar to that exercised by the Divorce Court sitting in London. Hence the Act." The Bill, after remaining for seven years before the Council of the Governor-General, received the assent of the Governor-General, on 26 February 1869.

The object of the above measure was to place the matrimonial law administered by the High Courts, in exercise of their original jurisdiction, on the same footing as that of the matrimonial law administered by the Court for Divorce and Matrimonial Causes in England. In other words, the High Court should have the same jurisdiction as the Court for Divorce and Matrimonial Causes in England established under the Matrimonial Causes Act, 1857 and in regard to which further provisions were made by the Matrimonial Causes Act, 1859, and the Matrimonial Causes Act, 1860. It was further specified that by vesting the High Court with powers of the Court for Divorce and Matrimonial Causes in England, it was not intended to take away from the courts within divisions of the Presidency not established by Royal Charter any jurisdiction which they had in matters matrimonial. For example, a suit based on the ground of non-observance of the essential ceremonies of marriage was still to be instituted in the ordinary court of civil jurisdiction and not in the High Court. Whereas, when a marriage is solemnized outside India, the matrimonial courts in India have no jurisdiction to grant a decree of nullity. In such cases, the jurisdiction of the civil court to entertain a suit for declaration that the marriage is a nullity, is not barred by the provisions of the Act. The Civil Court can grant such a relief under section 42 of the Specific Relief Act, because it involves the adjudication of a status. Moreover, the jurisdiction of the matrimonial courts under this Act does not extend to entertain a suit for a declaration that a certain marriage is valid. Further, when a marriage is void under the provisions of sections 4 and 5 of the Indian Christian Marriage Act of 1872, again it is the ordinary court of civil jurisdiction that should be moved for a decree of nullity of marriage and not the matrimonial court under the Indian Divorce Act, 1869. But in the course of an adjudication of matrimonial dispute, if the validity of a marriage is challenged otherwise than under the provisions of the Indian Divorce Act, the matrimonial court is not precluded from looking into the validity or otherwise of a marriage. However, by virtue of the provisions of Explanation (b) of section 7 of the Family Courts Act, 1984, the jurisdiction of the Civil Courts in matters matrimonial is now being exercised by the Family Courts in India. The above fact situation would show that the Divorce Act of 1869 is not to be construed as a comprehensive legislation in these matters.

The Draft of the Bill had been prepared to give effect to the Secretary of State's instruction, but some variations from the English Statutes in respect of procedure have been adopted. For the purpose of uniformity in procedure in the several branches of jurisdiction, the Bill provided for adoption of the procedure of the C.P.C, instead of the Rules of Her Majesty's Court for Divorce and Matrimonial Causes in England, as is evident from section 45 of Divorce Act of 1869.

Now, therefore, it emerges that the courts in India were to grant relief based on the principles and rules of the Court for Divorce and Matrimonial Causes in England; and the English Courts, in turn, were to follow the principles and practice of the old Ecclesiastical Courts. In other words, the Courts in India granted relief in matrimonial causes (under the Indian Divorce Act, 1869) on the basis of the principles evolved by the old Ecclesiastical Courts in England. Question arose as to what extent those principles can be applied here. It was held that in all matters, which are provided for in the Code of Civil Procedure, the Courts must regulate their procedure in accordance with the provisions contained therein. But in the absence of any provision on the subject in the Code of Civil Procedure, the Courts in this country are to follow as nearly as may be, the practice of the English Courts, and the decisions of those courts are to be taken as a guide to the Courts in India, under the Divorce Act of 1869. The Supreme Court also had an occasion to dwell on the applicability of English law in these matters. The Supreme Court held that the rules laid down by the House of Lords would provide the principles and rules, which the Indian Courts should apply to cases governed by the Indian Divorce Act. But the Court asserted that it was unthinkable that legislation whenever made by the Parliament of a foreign state should automatically become part of the law of another sovereign state. According to it legislation by incorporation can never go that far. The Kerala High Court also has had several occasions to deal with the question while tackling intricate issues in matrimonial matters and took recourse to the Principles of English Divorce Courts and granted relief. However, with the 2001 amendment of the Divorce Act of 1869, section 7 is deleted, but no guiding principles are incorporated to fill the vacuum.

Since 1869, the Indian Divorce Act did not undergo any major change and thus Christian law on divorce in India remained embedded on the principles of Victorian vintage for more than a century and a quarter. Even though there were pressing demands to update the law to be in tune with the times, both in and out of Parliament at least from 1962 onwards nothing worthwhile could be done for about half a century. While so, the Law Commission of India in its 164th Report on "The Indian Divorce Act (IV of 1869)" presented to the Government in November, 1998 has, inter alia, recommended that Parliament may enact a comprehensive law governing marriage and divorce and other allied aspects of the Christians in India. The Commission, relying on the judgments and observations of certain High Courts, has also urged the Central Government to take immediate measures to amend section 10 of the Indian Divorce Act, 1869 relating to grounds of dissolution of marriages so that the female spouses are not discriminated vis a vis male spouses in obtaining a decree of dissolution of marriage. The Commission also urged the Government to amend suitably sections 17 and 20 of the Act to do away with the procedural requirement of obtaining confirmation from the High Court in respect of a decree of dissolution of marriage or decree of nullity of marriage, as such procedure is a long-drawn and strenuous one as is provided in the Indian Divorce Act, 1869, so as to remove the hardships of all concerned.

Indian Divorce (Amendment) Act, 2001

Further, the Commission on Review of Administrative Laws which was set up by the Central Government on the 8th May,1998 has, inter alia, recommended repeal of various enactments including the Indian and Colonial Divorce Jurisdiction Act, 1926, the Indian and Colonial Divorce Jurisdiction Act, 1940 and the Indian Divorce Act, 1945 which were the British Statutes relating to Christian Personal Law that were in force at the time of making the recommendation. In order to give effect to the recommendations of the Law Commission of India in its 164th Report and the recommendations of the Commission on Review of Administrative Laws, at last, the Indian Divorce (Amendment) Act, 2001 has been enacted. Now, therefore, the intention of the Legislature in bringing out the Indian Divorce (Amendment) Act, 2001, is to be ascertained with the aid of this background of the law. However, it is made clear that the amendment has no retrospective operation.

There are certain noteworthy deletions from the Act. First and foremost is the deletion of the right of a husband to claim damages from the adulterer. This has been done on the basis of a fundamental change in the concept of the status of women. Formerly, women were considered as the property or chattel of men. Any trespass into that property was considered as an actionable claim. With deletions of sections 34 and 35 of the Act, the husband now cannot claim damages or cost from the adulterer of his wife. Consequently an added liability is thrust on the woman who happens to break into the matrimonial home of another. Previously, no woman was liable to be added as a party to the divorce proceedings as a co-respondent. Now, with the changes effected in section 11, the woman is also to be impleaded as a co-respondent.

Yet another change is the removal of discrimination against women in the matter of settlement of property. Prior to the amendment, the Courts were empowered to settle the property of the wife, if she is found to have committed adultery, for the benefit of her husband and children of the marriage. (See section 39 of the unamended Act). There was no corresponding provision to penalise a husband who is guilty of adultery and hence it could be considered discriminatory to women. This section is deleted, whereby both husband and wife are put on an even keel. In fact, what ought to have been done was that the property of the husband also should have been brought under the same disability. What is forgotten in the process is the welfare of the children. In the whole process, the rights of the children of broken marriages have not been properly protected. Some serious thought ought to have gone into this aspect. In almost all the cases of divorce or nullity, it is the children who bear the brunt, for no fault of their own.

The activists and the reformers have had no time to think about the hapless children of broken marriages. There ought to have been some provision made to see that reasonable provision is made by the parties for their children before a divorce is granted, and a provision should have been made to make it mandatory for the Courts to insist that such provision be made to its satisfaction, especially when the application is filed under mutual consent.

With the 2001 amendments, the procedural aspects under the Act of 1869 has been substantially altered to reduce the miseries of parties in a divorce proceeding. Now a Family Court can grant a decree of nullity of marriage or divorce at the first instance and the same would become final if no appeal is preferred within the period prescribed for the same. Confirmation by a Special Bench of the High Court as was required, has now been done away with. But the amendment has only prospective operation. In addition, with the enactment of the Marriage Laws (Amendment) Act, 2001, the provision for alimony has been made more beneficial to women. Formerly, there was an upper limit of one-fifth of the income of the husband as payable towards alimony. Now, this upper limit of one-fifth has been removed and the quantum of alimony is left to be decided by the Court in the circumstance of each case.

 The Amendment Act of 2001 and its intricacies

However, there are many incongruities in the provisions under the Divorce Act after its amendment. With the deletion of the words "District Court" from section 16 of the Act, the cumulative effect is that a District Court can now issue a decree absolute at the first instance whereas a High Court can only pronounce a decree nisi at the first instance which has to be made absolute after the expiry of a period of six months from the date of the said decree. As a result the District Court is conferred with more powers than the High Court in this regard. There is total non-application of mind on these aspects by the Legislature. However, with the amendment of sections 17 and 20, the requirement of confirmation of the decrees passed by the District Court/ Family Court has now been done away with, which, in fact grants great relief to parties, who invoke the jurisdiction of the District Court or the Family Court.

But Parliament has miserably failed to incorporate specific provisions as to jurisdiction of the Courts to entertain petitions or suit under the Act. The age-old concept of the place where the parties have last resided together is still retained in the matter of High Courts. The attempt made to confer jurisdiction on District Courts/Family Courts in whose jurisdiction the marriage was solemnised has been worded in clumsy language in subsection 3 of section 3. The District Court gets jurisdiction if the marriage was solemnised under this Act within its jurisdiction. For that matter, no marriage is solemnised under this Act and there are no provisions under this Act dealing with solemnisation of marriages. In fact the provision in the Act of 1869 that the proceedings ought to be instituted in the place where the parties reside or last resided together, has been creating a lot of confusion, trouble and cost to the litigants and the Courts in the past. Parties might have last resided together at places beyond India, or at places outside their State and on separation they might have got settled down at their respective native places. To drive them to a place where they last resided together to seek matrimonial reliefs is nothing short of harassment to the core. It is pertinent to note that the Marriage Laws (Amendment) Act, 2003 has also been not made applicable in the case of proceedings under the Divorce Act. Again, the Amendment has not specified as to whether it is retrospective in operation and no specific provision has been made regarding pending proceedings and especially that of confirmation proceedings pending before the High Court.

Further, the Indian Divorce (Amendment) Act, 2001, has failed to specify the jurisdiction of the High Court vis-à-vis the District Court/ Family Court. Under section 4 of the Divorce Act, as it stands amended, the jurisdiction now exercised by the High Courts in respect of proceedings under the Act shall be exercised by such High Court and by the District Court subject to the provisions contained in the Act. The historical evolution of the law shows that the High Court exercised original jurisdiction in matrimonial matters even prior to the enactment of the Indian Divorce Act, 1869. That being so, the original jurisdiction of the High Court has never been interfered with under the Act of 1869 and all pending suits in the High Courts were to be dealt with under the Act of 1869 as specified in Section 6 of the Act. Even in the Indian Divorce (Amendment) Act of 2001, no change has been made in section 4 or section 6 of the Act of 1869. Further, section 16 provides that every decree for dissolution of marriage made by High Court shall in the first instance, be a decree nisi. And, under sub section (1) of section 3 read with section 4, makes it clear that a petition can be filed in the High Court for the area where the husband and wife reside or last resided together. Again, the appeal provision under section 56 also adds strength to this position where it is provided that an appeal can be filed against a decree or order of a High Court made on appeal or otherwise, when the High Court declares that the case is a fit one for appeal to the Supreme Court. This view stands strengthened on an analysis of the statement of objects and reasons for the Indian Divorce (Amendment) Act of 2001. From the statement of objects and reasons for the Act, it is evident that the intention of the Legislature was only to obliterate gender discrimination and to do away with the procedural requirement of confirmation from the High Court in respect of decrees of nullity and divorce granted by the District Court. Therefore, obviously, the Legislature did not interfere with the provisions dealing with jurisdiction of Courts. The Forms given in the Schedule have not been amended. As per the Forms, petitions can be filed in the High Court or in the District Court. In short, the Indian Divorce (Amendment) Act, 2001, has conferred wider powers on the District Courts/Family Courts and it has done away with gender discrimination writ large in the various provisions of the Act but has not substantially affected the Original Jurisdiction of the High Court.

However a different approach to the question of jurisdiction of the High Court is also possible. It can be argued that even though the original jurisdiction of the High Courts are still preserved, as sections 10, 18, 22, 32 etc enables a petitioner to move the District Court only and that the provisions enabling the High Court to exercise original jurisdiction will be attracted only in the case of exercise of jurisdiction under section 8 of the Act. In this context it can be observed that the High Court can exercise its discretion in the matter of exercise of jurisdiction and if the Court is satisfied that invoking of the jurisdiction of the High Court is not with malafides so as to harass the respondent, the High Court may still exercise its original jurisdiction in appropriate cases.

It is in this state of confusion that the High Court of Kerala took suo motu Proceedings to decide on the question of exercise of jurisdiction by the District Court/ Family Court viz-a-viz the High Court after the Amendment Act of 2001. It was held that as a result of the amendments carried out by Act No. 51 of 2001, the original jurisdiction of High Court in matrimonial matters under the Divorce Act is taken away except to the limited extent retained under Section 17. The original jurisdiction is now confined to the special power of the High Court under Section 17 to be exercised in the circumstances indicated therein. The view taken by the learned single judge in Sherly Thomas v. Johny that, after the amendment of section 10 and 18 of the Indian Divorce Act, the High Court lacks jurisdiction to entertain petitions under section 10 and 18 of the Divorce Act was approved by the Special Bench. Apart from the limited area under section 17, the original jurisdiction in matrimonial matters under the Divorce Act now rests exclusively with the Family Courts, in areas where they are in existence, and in other areas with the District Courts.

It was further held that in matters where decrees nisi have been passed by the High Court, the decrees nisi would have to be confirmed by the High Court by following the procedure prescribed under section 16 of the Divorce Act. And it was also held that all the Original Petitions under the Indian Divorce Act pending in the High Court on 3 October 2001 shall continue to be heard and disposed of in accordance with the unamended Indian Divorce Act, 1869,for that would be consistent with the provisions of section 6 of the General Clauses Act. Since the amending Act has come into force from 3 October 2001 and as it has no retrospective effect, all petitions filed thereafter in the High Court must necessarily be transferred to the District/Family Court, whatever be the stage. In cases where decrees were already passed prior to 3 October 2001, they are to be disposed of in accordance with the procedure in Section 20. Any other view would mean depriving the litigant of the benefit of confirmation of the decree as also the right of appeal, which would not be available in their cases.

Both the Legislature and the High Court still failed to advert to a vital issue in this matter. What law and what procedure would apply to matters instituted prior to 3 October 2001 before the Family Court/ District Court and pending as on 3 October 2001. Whether decrees passed after 3 October 2001 in such cases would still require to be confirmed by the High Court. It appears that as the High Court has already held that the amendment Act of 2001 is not retrospective in operation, decrees passed in such pending matters as aforesaid still require to be confirmed by the High Court, as otherwise such decrees will have no legal validity. In spite of all the shortcomings, the Indian Divorce (Amendment) Act, 2001, is by and large a welcome measure.

Grounds of divorce after the amendment

Gender discrimination writ large on various provisions in the Act has been amended and gender equality has been made almost a certainty. This is more so in the case of grounds for divorce as provided in section 10 of the Act. As far as the Kerala Christians are concerned, it has helped men more in so far as the grounds for divorce are concerned. Women were already having sufficient grounds to seek a divorce on account of a decision of the Full Bench of the High Court in Ammani E.J Vs. Union of India. After the present amendment, both husband and wife can seek a divorce on the grounds of,

Desertion for more than seven years
Insanity for more than two years
Incurable leprosy for more than two years
Conversion to another religion
Willful refusal to consummate the marriage
Not being heard of for 7 years
Venereal disease in communicable form for two years
Failure to obey the order for restitution of conjugal rights.

However, the wife has been permitted to sue for divorce on additional grounds if the husband is guilty of:


All these years, Christian spouses were compelled to mudslinging each other if they desired to go in for a divorce. Now section 10- A is added under which mutual consent has also been made a ground for divorce.

Attack on boyfriend included frying pan and a kitchen knife

Published Wednesday January 27th, 2010

Attack on boyfriend included frying pan and a kitchen knife

HAMPTON - After beating him with a frying pan and stabbing him with a kitchen knife, a Rothesay woman avoided jailtime and returned home with her victim/boyfriend.

Judge Henrik Tonning couldn't deny if the male/female roles were reversed, the penalty would likely be harsher.

Instead, he followed the joint recommendation of Crown prosecutor Kelly Winchester and defence lawyer Al Levine by sentencing Mary Lisa Joyce Carrier to a six-month conditional sentence, followed by one year's probation for assault causing bodily harm.

Carrier, 21, sat next to the boyfriend she assaulted and still lives with during her sentencing in Hampton provincial court. When she stood to be sentenced, he stood with her and often put his arm around her.

Winchester explained it was on the night of Nov. 15, 2009 when the Rothesay Regional Police Force was called to a domestic disturbance on Scott Avenue by a witness who said a man was being stabbed outside.

Winchester said an argument began inside the apartment the couple shares, during which time Carrier struck him several times with a frying pan. He grabbed her cell phone and ran outside to call his father to pick him up when she charged after him, taking a kitchen knife with her. She stabbed her boyfriend several times in the right shoulder area, the Crown explained.

She said witnesses heard him yell "don't stab me."

Winchester said after the incident the victim wanted to drop the charges because their relationship is going well and they are seeking counselling together. She said because of the seriousness of the assault, ignoring the incident was not an option.

Carrier is also going to counselling with members of her family, as well as individual counselling. Among the issues is her struggle with anger management, both the Crown and defense said.

There is evidence of drug and alcohol use that contributed to the violence, the Crown added.

Levine said his client works full-time for a fast-food restaurant and said on the night of the attack, she had taken some sleeping pills and alcohol. She has a history of depression and has been on medications in the past to help, and has since been prescribed more effective medications by her family doctor, he pointed out.

"We've learned ways to come together and respect each other more. We're just getting along a lot better than we were," Carrier told the judge, wiping her eyes.

Tonning said domestic violence is a big problem that cannot be tolerated.

"Domestic violence is problematic," he said. "This is a situation that's fraught with danger. These situations can, in fact, turn into fatalities."

He said if the role was revered and it was a man who beat his girlfriend with a frying pan and then stabbed her repeatedly, he is "doubtful" the sentence would be as light.
"More likely he would be incarcerated for a significant period of time," Tonning said. "(But) I don't intend to rock the boat today."

He told Carrier to accept the support she has and get help for her issues.

"Everyone needs a little help now and then," Tonning said.

Under the conditional sentence she must abstain from alcohol and non-prescription drugs and take programs recommended by her probation officer.

Dowry cases: HC puts curbs on arrest of in-laws, relatives


Posted: Aug 07, 2008 at 1931 hrs IST

New Delhi, August 7: Bringing hope to thousands of people allegedly harassed by married women and unscrupulous policemen through misuse of anti-dowry provisions, the Delhi High Court has said family members of a man, facing such charges, cannot be arrested without the approval of a DCP.

Ordering strict implementation of the guidelines issued by the police commissioner, Justice Kailash Gambhir said the “co-accused like relatives of husband (facing dowry harassment complaint) should be arrested only after approval of a DCP on file.”

“Arrest of main accused (husband) should be made only after thorough investigation has been conducted and with the prior approval of an ACP or DCP,” the court said.

“No case under section 498-A of IPC (Husband or relative of husband of a woman subjecting her to cruelty) should be registered without prior approval of DCP,” said Justice Gambhir.

Directing the police to scrutinise complaints filed by the wife carefully and then register the FIR, the court said the FIR should be registered if there is strong possibility of of physical or mental cruelty against the complainant woman.

In addition, the police should make all efforts for reconciliation before registration of FIR, the court said in the guidelines and women staff in Crime Against Women cell should try to persuade the women from lodging such cases with a motive to save the institution of marriage.

Besides the police, the court issued guidelines to NGOs, lawyers and trial courts saying they have a greater responsibility in this regard.

Justice Gambir issued the guidelines while hearing a joint anticipatory bail application filed by in-laws of a woman in a matrimonial dispute case lodged by their daughter-in-law. He suggested to the parties in the case to settle the issue on August 11 at 4.30 pm.

‘Dowry cases have gone up’

Staff Reporter

Consumerism, caste and class contribute to the practice

BANGALORE: Day Two of the prelude to Daughters of Fire: the India Court of Women on Dowry and Related Forms of Violence against Women was held at the Christ University here on Monday. Spread over six Roundtables, it saw response from 600 participants from different States.

“Economic and sociological aspects of dowry are affecting everyone and despite the strength of the movement, dowry has increased by thousand-fold in the last three decades,” said Gauri Chowdhry of Action India, New Delhi, before the roundtables began.

Roundtable One reviewed dowry, family and marriage in the context of post-colonial societies and growing economic and cultural fundamentalism.

The members of the panel were Nandini Rao from Jagori in New Delhi, Ms. Gauri Chowdhry, Rajeshwari H.S. from Manasa in Bangalore.

Ms. Rao’s concept note on this subject emphasised the prevalence of the dowry system and also the role of television serials in perpetrating this practice.

The second Roundtable brought to the fore the media’s reconstruction of violence, identity, representation and autonomy. The panellists were from Bangalore and Kerala.

The Roundtable explored the problematic linkage with media, while women from many States shared their experience. The highlight of the session was the way the sex worker community shared its experiences to address a problem of mindset in the media.

In the third Roundtable, a review of legislation and alternative ways to justice in the context of responses to dowry and related forms of violence was done. The main speaker was Aarti Mundkur from Alternative Law Forum (ALF). “The more aggressive the law, the more difficult it is to get justice. We have specific laws that are helping women yet we are caught in the double bind of law,” she said.

The fourth Roundtable discussed Globalisation and Violence against Women, and reviewed government policies in the context of the changing nature of the State. It was coordinated by Rukmini Rao of Gramya in Andhra Pradesh.

Roundtable Five was about Femicide: The role of Science and Medical Technology and had Sabu George and other women doctors and activists as speakers. The last Roundtable was called “Conference of the Birds”.

The growth of a severely consumerist culture and the issues of caste and class were among the reasons that almost all speakers of the roundtables listed for the dowry system’s existence.

HC refuses to quash dowry case against US-based man

Thu, Jan 28 11:15 AM

Mumbai, Jan. 28 -- The Bombay High Court on Wednesday refused to quash a dowry harassment case filed against US-based Ajay Pardeshi and his family in Navi Mumbai.

"We cannot quash this FIR; this is not a fit case for quashing and a charge sheet too has been filed against you (accused)," the court observed. According to an application filed by the Pardeshis, Ajay and Jaya, a Mulund resident, married on October 25, 2007.

After the marriage, Ajay returned to the USA. He claimed he filed a visa application for Jaya. Jaya alleged Ajay never started any process to take her to the USA and instead had entered in to a second marriage there.

In May 2008, Jaya lodged an FIR at Navghar police station, alleging that her in-laws were harassing her for dowry.

Thursday, January 28, 2010

Woman ends life; family alleges dowry death


New Delhi, Jan 26 (PTI) A 23-year-old woman working with an MNC allegedly committed suicide at her husband?s house in northeast Delhi, with police suspecting it to be a case of dowry death.

The woman identified as Anshu was found dead in their house at Mansarovar Park last night. Her parents alleged that she was harassed for dowry, police said.

Police have not recovered any suicide note.

Anshu and Shivank had got married in December, 2008 after an affair.

Police received a call from GTB hospital at 11. 30 pm about the suicide.

The couple, who were neighbours and had studied together, had a relationship since their school days.

Shivank?s father Pramod Singh is attached to UP Police.

A Sub Divisional Magisterial enquiry has been ordered into the incident and a case of dowry death has been registered in Mansarovar Park police station

Soon, gender-neutral laws

Nagendar Sharma, Hindustan Times

Delh, January 05, 2010

Continuing with its measures to make the country’s legal system women-friendly, the government is set to amend the “gender- biased” laws.

It wants to send out an effective message after the Ruchika case exposed the bias in the existing laws.

Ruchika ended her life in 1993 after former Haryana police chief SPS Rathore molested her in 1990 and allegedly harassed her family.

“We have decided to review all gender-biased laws, which affect the legitimate rights of women. All laws should be gender-neutral,” Law Minister M. Veerappa Moily told HT.

“Divorce and property laws are the two examples of gender-biased laws, and we are considering amendments in existing laws to ensure equal rights for women and a time-bound trial to reduce their sufferings.”

It will soon be possible for single women to adopt a child, following the Union Cabinet’s approval to amend the adoption law, the minister said.

“The cabinet has cleared the proposal to amend the Guardians and Wards Act, 1890, and Hindu Adoption and Maintenance Act, 1956. We are now going to convert these laws into gender-neutral laws,” he said.

According to the current laws, a couple can adopt only if the man is named the guardian.

On divorce laws, he said: “There is no need for divorce cases to drag on for years when the marriage has broken down. Cases must be decided in a time-bound manner...”

He conceded that “there is a need to relook at the property laws”. For example, the Land Reforms Act of 2005 entitles a male child and his family to the family property while married girl child is denied the same.

Moily said his ministry has set the process in motion by sending a new draft law to the home ministry for special courts to try sexual offences, which will make it mandatory that the trial be completed in six months and anticipatory bail for the accused wouldn’t be allowed.

“No questions on the character of the victim of sexual violence (molestation, attempt to rape and rape) will be allowed during the trial and the statement will only be recorded in presence of a woman officer,” he said.

Sunday, January 24, 2010

Here is a link to the Code of Civil Procedure Act 1908, the original act before the amendment.

Code of Civil Procedure, 1908

ACT NO. 22 OF 2002

[23rd May, 2002.]

An Act further to amend the Code of Civil Procedure, 1908 and to
provide for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Fifty-third Year of the Republic of
India as follows:-

Here is the link to the Code of Civil Procedure (Amendment) Act, 2002

IPC - Indian Penal Code

IPC - Indian Penal Code
Go through the following website for detailed information on the Indian Penal Code and all its sections and subsections, IPC section 498a comes under this area.


Here is a good link to the entire Code of Criminal Procedure of India.



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No. 22 of 2005

[15th June, 2005]

An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

Whereas the Constitution of India has established democratic Republic;

And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.

Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:—

Hindu Marriage Act, 1955

Hindu Marriage Act,1955

[25 of 1955,dt. 18-5-1955]

An Act to amend and codify the law relating to marriage among Hindu
Be it enacted by Parliament in the Sixth Year of the Republic of India as follows:

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Mutual Divorce in India

If you are planning to get a divorce, mutual divorce should always be preferred to a contested divorce. Obtaining divorce through mutual consent is quite advantageous as it saves both time and money. The provision for dissolving marriage through mutual divorce in India is included in Section 13 B of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any marriage solemnized before and after the Marriage Laws (Amendment) Act, 1976 is entitled to this provision.

Though several laws have been passed with the progress of time, the divorce procedure in India is still complex and you will have to contest the divorce for several months. The Indian judicial law believes that the extended time span might workout well for the couple to reconsider their marriage and hence, a marriage will be saved from being dissolved forever.

A Brief Outline of the Procedure of Mutual Divorce in India

Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be filed in the district court by the both the spouses. The husband and the wife should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment.

The filing of divorce petition by both the husband and the wife is legally known as the "The First Motion Petition for Mutual Consent Divorce". "The Second Motion Petition for Mutual Consent Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the court for the second time after a period of six months. If the judge is satisfied after a hearing from both the husband and wife, the court announces a mutual divorce decree.

If the couple fails to appear in the court after six months and not later than eighteen months from the date of first motion, the divorce petition becomes null and void. Either of the couple can withdraw his/her petition within the six months term.

A judgment for mutual divorce is passed out only if all the necessary agreements required for a mutual divorce in India are strictly maintained. The husband and the wife should come to terms of settlement regarding the following issues.

•Custody of Child

•Return of Dowry Articles / Istridhan of Wife

•Lump Sum Maintenance Amount of Wife

•Litigation Expenses

For a mutual divorce in India, we would always suggest you to consult an experienced lawyer who will effectively guide you to get the divorce through a mutual agreement done between you and your spouse.

Mutual consent divorce gets easier

Satya Prakash , Hindustan Times

New Delhi, September 03, 2009

A Hindu marriage can be dissolved under the provision of mutual consent even if one of the parties withdraws approval of the dissolution before the statutory period of six months expires following the application for divorce.

By law, both the parties are required to re-confirm their mutual consent after six months.

The court used its extraordinary powers under Article 142 to virtually re-write the law on divorce by mutual consent under Section 13 B of the Hindu Marriage Act, 1955. A Supreme Court bench headed by Justice Altamas Kabir granted divorce by mutual consent to a couple from Chhindwara in Madhya Pradesh despite the wife having withdrawn her consent.

The court used its extraordinary powers under Article 142 to virtually re-write the law on divorce by mutual consent under Section 13 B of the Hindu Marriage Act, 1955.

But the court made it clear that high courts or civil courts could not pass such orders because they did not have these extraordinary powers.

According to Section 13 B of the Act, a divorce by mutual consent can be jointly filed by the parties on the grounds that they have been living separately at least for a year.

The court took note of the fact that the wife had made it clear that she would not live with the petitioner (husband) but also she was not agreeable to divorce by mutual consent.

In the present case, the wife withdrew her consent and accordingly, the second additional district judge, Chhindwara, dismissed the petition for divorce in 2005.

The husband challenged the verdict in the Madhya Pradesh High Court, which upheld the trial court’s order.

Maintenance Orders


In India, family courts can pass an interim order on maintenance to a spouse when s/he is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.

Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.

The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income.

For example, if the husband has a take home income of one lac per month and the wife has a take home income of twenty thousand and they have no children in a marriage of 2 years, then the wife can theoretically get Rs.4000 as maintenance. How? The total take home income is one lac and twenty thousand and twenty percent of it comes to Rs.24,000. So, the woman gets Rs.4000 per month, so that her total income (her income+maintenance) becomes Rs.24,000.

If the couple have a child and the woman has the child custody, then she may get a maintenance amount of Rs.10,000 to Rs.16,000 per month so that her total income becomes Rs.30,000 to Rs.36,000 per month. Apart from that there can also be a judicial order defining the details on how the expenses for high studies of the child are shared. If the child decides to stay with the father after the age of 5, then the maintenance amount to the woman gets reduced accordingly.

If a woman’s income is at least half of her husband’s income, then most often she may not get any maintenance.

Similarly in a marriage of six months, if the wife is not working, but she has a masters degree and the husband has a monthly take home income of rupees one lac, then she may get a maintenance amount between Rs.8,000 to Rs.12,000 per month. Why? Because the argument would be that she has the capability to work and support herself.

Sometimes, the wife is also ordered to pay maintenace to the husband when the husband has a very small or no income compared to his wife’s income. In recent past, such orders are passed by high courts in Cuttack and Lucknow much to the annoyance of some feminists and media. But, laws have to be the same irrespective of gender. Is not it?

So, economically empowered women do not get maintenance or they may even have to pay maintenace to their husbands in case of divorce.

The maintance amount can get higher if its a long marriage. The parents can also claim maintenace from their grown up earning children. Even though, it is not clear, if they can claim maintenance from their earning daughters as today daughters have equal property inheritance rights.

It must be noted that neither the husband nor the wife can make claims on the property(residential or otherwise) of the other during divorce. So, some intelligent men make sure to get residential property registered only in their name, when they apply it through a bank loan. But, most other foolish men (being misguided by the builders) register the property in joint names, while its the man who pays fully for the bank EMIs. In case of marital conflict and divorce, the condition of such men becomes extremely miserable as they are already under a debt of rupees 20 lacs to 30 lacs and the wives make a claim on it apart from the maintenace they may get in the court. I know, some other men asking their working wives to pay for half of the property and loan so that the property can be registered in both names. These wives sometimes start complaining that he is asking dowry as they feel its only a man’s duty to provide for the family and the common expenses.

A woman or man stops getting maintenance from his/her spouse once s/he gets remarried unless they have a child. So, often women ask for a one time out of court settlement (or alimony) in stead of divorce. The man may agree to it or he can decline to it saying that he would prefer to give monthly maintenace.

For young guys (say techies within age group of 25 to 30) in marital conflicts, the maintenance amount given to their non working wives can be between Rs.2000. to Rs.7,000 (if they earn a salary between Rs.18,000 to Rs.50,000) provided they have no children.

So, often lawyers advise the women to file false dowry cases, so that the woman can force the guy to pay up a huge settlement/alimony (out of the court) in stead of going for a monthly maintenance. A monthly maintenance of Rs.3000 is in no way comparable to an one time alimony of Rs.10 lacs. But, the guy becomes bankrupt in such a situation as he ends up not only losing all his savings, but also takes loan from family and friends. He not only pays the alimony, but also ends up spending time in jail with his family, loses reputation, may be even the job, pays bribes to the police to stop harassing his family and the huge legal expense for bails and fighting the multiple cases. There is no way he can think of marrying again as he simply has no money to pay for even the marriage expenses. Of course, the painful experience can also keep him miles away from the very word marriage. On the otherhand, the woman’s dowry case is fought by the public prosecutor(ie. the lawyer from the State paided by the taxpayer’s money).

Its is alleged by some that the lawyers of both sides may also profit from this kind of a settlement. Its not at all surprising, if a husband finds himself cornered by his own lawyer, who keeps on pestering to go for a settlement, pay alimony, marry another girl (immediately) and live happily ever after.

The child is an important factor in a marital conflict, especially when the child is below the age of five. Fathers have natural right to child visitation. But, women can often evade the instructions/law and deny child visitation rights to the fathers. I have seen such fathers being allowed to meet their children once in a week or two just for an hour in the family court complex in Bangalore as in the police keeps dragging chained criminals into the vehicles in the background.

Divorce By Mutual Consent, section 13 B

Whole process of divorce by mutual consent. First thing which you have to see under which Act your marriage was solemnized. In case you both are Hindus & married according to the Hindu Marriage Act,1956 then you both can apply for divorce by mutual consent under section 13-B of this Act. Now what are the things you have to take care in such petition for divorce by mutual consent :-

1. You can file any petition for divorce only after one year has passed for such a marriage,
2. You have to file a joint petition U/S13B of the Hindu Marriage Act,1955,it means you both have to sign it & stamp; verify it jointly,
3.  If you have any proof of your marriage e.g. marriage certificate etc you have to attach a true copy of such certificate with your petition,.
4.  You have to mention in your petition the status & stamp; place of residence of both the parties before the marriage & at the time of filling of this petition,
5. You have to mention the period of your separation before filing of this petition which in any case should be more then one year,
6. You have to mention that both of you agreed for this divorce by mutual consent & this mutual consent has not been taken by fraud or force or any undue influence.
7. You have to mention that there is no collusion between the parties in filling such a petition.
8. You have to mention that this court has jurisdiction to entertain this petition.
9. That there is no unnecessary delay in filling this petion .
10. You have to mention there is no legal ground why this relief should not be granted, next you pray that this relief of divorce should be granted to you, both of you put your signatures, write a Para about verification of the petition & both of you sign this verification. Along with this joint petition you should even file affidavits signed by both of you &, attested by the oath commissioner were you satisfy the facts mentioned in the petition as correct &, best of your knowledge.
You have to put necessary court fee stamp on this petition &, even both your passport size latest photographs on the top of the petition, file this in the district court registry which will assign this petition to the designated family court of the district where both of you have to present on the first day of hearing.
The family court judge will go through the petition &, may ask you any question he/she likes regarding your marriage or married life, regarding you children, their custody &, maintenance and alimony etc. You can even be asked incase you both are interested in any sort of family/matrimonial counseling during the period before this divorce is finally decided after six months statutory time period.
Next a date for final hearing is fixed which can be any time after six months of filling of this petition but not beyond 18 months when again both of you appear & tell the family court your final decision if you both still want the divorce or reunite as husband & wife, if you tell that you still want divorce as there is no chance for any reconciliation the Family court will pass the order for divorce. This is the brief procedure one has to follow while taking divorce by mutual consent.

The Dowry Prohibition Act, 1961

Press the link to take you to the act

The Dowry Prohibition Act, 1961


(Act no. 28 of 1961)

Knowledge is Power

The Protection Of Women From Domestic Violence Act, 2005



1.            PRELIMINARY

2.            Short title, extent and commencement.

3.           Definitions.


5.            Definition of "domestic violence"


7.           Information to Protection Officer and exclusion of liability of informant.

8.           Duties of police officers, service providers and Magistrate.

9.            Duties of shelter homes.

10.            Duties of medical facilities.

11.            Appointment of Protection Officers.

12.            Duties and functions of Protection Officers.

13.            Service providers.

14.           Duties of Government.


16.            Application to Magistrate.

17.          Service of notice.

18            Counselling.

19.            Assistance of welfare expert.

20.          Proceedings to be held in camera.

21.         Right to reside in a shared household.

22.           Protection orders.

23.          Residence orders.

24.           Monetary reliefs.

25.           Custody orders.

26.        Compensation orders.

27.          Power to grant interim and exparte orders.

28.         Court to give copies of order free of cost.

29.         Duration and alteration of orders.

30.           Relief in other suits and legal proceedings.

31.          Jurisdiction.

32.            Procedure.

33.           Appeal.

34.           MISCELLANEOUS

35.            Protection Officers and members of service providers to be public servants.

36.           Penalty for breach of protection order by respondent.

37.            Cognizance and proof.

38.            Penalty for not discharging duty by Protection Officer.

39.          Cognizance of offence committed by Protection Officer.

40.          Protection of action taken in good faith.

41.         Act not in derogation of any other law.

42.           Power of Central Government to make rules