Rebel bride’s dowry charge junked, Nisha Sharma

Read about Famous FRAUDSTER Nisha Sharma, this women back in 2003 became a world wide Heroin for her strong stand against Dowry and the Evil demands of her In-Laws, she even was invited to the USA to be featured on The OPRAH show, which is broadcast around the world to Millions of house holds. Let us skip ahead Nine (9) years now, on March 1, 2012 the Courts have found that Nisha Sharma Lied about all her charges. Read entire article below. Plus read the, 2004, OLD OPRAH article at the end.
Why doesn't Nisha Sharma come on OPRAH now? 

March 1, 2012

GREATER NOIDA: She hit the headlines nine years ago after calling off her wedding in front of 200 guests, alleging the groom's family had demanded a massive dowry at the last minute. But on Wednesday, all the fame and media adulation Nisha Sharma cornered in 2003 seemed misplaced when a court here declared she had fabricated the dowry charges to wriggle out of the nuptials.

Calling Sharma's action pre-meditated, the chief judicial magistrate at Gautam Budh Nagar district courts, Vipin Rai, acquitted all the four accused in the case - the groom Munish Dalal, his mother Vidya Dalal, his aunt Savitri Sharma, and Nisha's former classmate Navneet Rai.

The court noted that there was "insufficient evidence to prove that the demand of Rs 12 lakh had been made by the Dalal family a night before the wedding". The witness introduced by Sharma's counsel was "not related" to the family and had died during the course of investigation, opening up room for "benefit of doubt for the accused", the CJM said. TOI has a copy of the order.

After examining the evidence produced in court, the CJM ruled that Sharma was close to her classmate Navneet Rai and wished to marry him. Her family had discussed the alliance with Rai's family but it did not work out. Sharma's father then betrothed her to Dalal. The order says Sharma was unhappy with the match and had set her heart on marrying Navneet, so she cooked up the dowry story.

During investigation, Rai himself had testified against Sharma. Munish Dalal had claimed at the time that Navneet met and told him about his relationship with the woman.

On Wednesday, Sharma couldn't be contacted and her father DD Sharma refused to comment without seeing a copy of the order. "I haven't seen a copy of the court's decision and I simply can't comment upon the matter until I have seen it. Nisha still doesn't know about the order and I am not going to be the one who tells her. Let the court's order come tomorrow and then we will see. But if what the media is saying is true, we will definitely be appealing against the decision," he said.

A relieved Munish Dalal said the court had vindicated his position. "Nine years of my life were ruined and there is nothing that can make up for it and the amount of suffering that my family and I faced as a result of this. I was a government employee and just a month shy of completing my probation, but after these allegations my whole life and career were ruined."

Nisha Sharma and Munish Dalal would have tied the knot on May 11, 2003. But the wedding was called off when Sharma alleged the Dalals had demanded Rs 12 lakh cash and a car in dowry. She called the police and a case was registered against Munish, his mother and his aunt.

Read this article from 2004 a period when Nisha Sharma was a Feminazi's Poster Child, the next person who was heading for Sainthood. I am surprised she didn't receive the Nobel Prize? 

Oprah and the Indian bride who said 'no' 


Jan. 15, 2004


NEW DELHI - When an Indian is flown specially from India to feature in the Oprah Winfrey show in the United States it becomes an occasion to revisit all that the person stands for. Such is the case of 22-year-old Nisha Sharma.


Nisha did something different, she dared to fight back when threatened with possible death, in this case, a dowry death. Ever since, she has become a symbol of the new Indian woman. 

Nisha called the police when the family of her husband-to-be demanded extra dowry on the day of her marriage in June last year, and turned into an overnight heroine in India. Nisha chose to stand up to a man who was to be her husband, and also took on his family. In India, this can be close to staring death in the eye. For such behavior, girls have been ostracized by their own families and killed by their husband's family. According to government figures, in 2001, angry husbands and in-laws killed over 7,000 women over small dowry payments. Nisha's not-to-be husband has been quoted as saying that if he had ended up marrying her he would probably have thrown her off the terrace. 

In Nisha's case, events unfolded as dramatically as in any Bollywood potboiler. The irony is, just as in the movies, it was the mother of the groom (the emphasis here being that she is woman),who masterminded the plot. It did not matter that her son was just a lowly paid teacher who probably would have lived off his software-professional wife's income, or even that of her father, from the successful business he runs. 

He was born a man, and that's often enough in India. There was already plenty on offer, arranged by the bride's family. Photographs of Nisha with the dowry were splashed across the media - fridge, air-conditioners and TVs. She was to drive off in a new black Maruti Esteem that cost US$10,000, bought by her father for the use of her husband's family, the rights duly transferred in their name. 

But, they wanted more. The baraat (marriage procession), with the groom's mother as master of ceremonies, asked for cash ($30,000) to be hand-delivered at the reception area itself, before her son, who followed on a traditionally bedecked horse, would condescend to alight. The father of the bride demurred, and was therefore pushed, abused and finally slapped by the groom's mother. 

When Nisha, in her traditional finery and mehendi (temporary henna tattoos) heard the commotion, she reached for her cell phone and called the police. The rest is history. 

It should be noted at this point that Nisha and her family had accepted the original dowry. The problem arose when the groom's family suddenly demanded more. Both families were in breach of the law. In India, the punishment for demanding a dowry is imprisonment for not less than six months and up to two years, and/or a fine that is up to 10,000 rupees ($215). The punishment for giving or taking dowry is worse: imprisonment for not less than five years and a fine of 15,000 rupees, or the value of the dowry, or more. In this case, the groom's family is in jail, but Nisha's is not. 

What followed though was an outpouring of emotion, support, commercial interest and now Oprah, whose show featuring Nisha was scheduled to be run on Tuesday. Bollywood bigwigs and television producers wanted Nisha's story; politicians of every leaning lined up at her house to congratulate her, inviting her to join their party. TV news channels ran a ticker to accommodate the thousands of salutations from a fan club that has cut across class, geographic and gender barriers. Many men have written letters offering their hand in marriage. 

Traditionally in India the script for Nisha's story would have gone another way. The father would probably have died of a heart attack on hearing of the fresh demand for money, or worse, begged the boy's family to go ahead with the marriage, allowing him some time to somehow arrange the money. He would have gone to any extent to save his izzat (honor) as nobody would marry his daughter after they found that she had been lined up to marry someone else. The girl, to protect the izzat of her father, would marry, then be tortured, probably killed. Nisha had other ideas. 

Nisha, now married to software engineer Ashwini Sharma, considers the invitation to the Oprah show as an opportunity to be heard on an international platform. She, along with her husband and brother, have been in Chicago for the past few days for the recording. 

As expected, Nisha was excited and said: "I am happy I have a chance to be heard internationally. No one should submit to social blackmail, anywhere in the world," she said. "I agree with her basic message and will be honored to help spread it," her husband said. 

Two things stand out in this episode. One, it was purely Nisha's decision to do what she did, and she did so with her own cell phone, a modern gadget used as a window to the rest of the world that she had access to and knew about. 

In India, commercials portray women with cell phones incessantly, in big cars and at board meetings. They aren't seen being beaten by prospective husbands. Nisha called the police without alighting her bridal seat, without seeking anybody's advice. Given the delicate situation, she might have been stopped had she sought advice. Her mother, like many mothers in the past, could have said: "Beti[daughter], think about your father, the husband is like god, you have to learn how to keep quiet, who will marry you." With a cell phone, however, it was a matter of seconds once she made the decision to call the police. 

Indeed, Nisha is the new face of Indian woman, exemplified by the cell phone she carries and the software degree she is studying. She must have faced a dilemma before she took the split second decision. The thoughts inside her turbulent mind must have been sharply divided into two: of a life in which she could probably never text-message her friends again, with her new home a dungeon she could never escape. Or another life as an independent woman, a successful professional and a husband who deserved her, respecting her for what she is. 

Two, Nisha also knows that she has the power to emancipate herself through her skills. Her family has stood by her, but it was they who needed her strength, not she. Her father did what he had been brought up to believe, his daughter did what she thought was right. 

The strings of tradition did tie her down in the beginning. As she said in an interview, she kept quiet while the initial demands for dowry were being made. She knew her parents considered it their duty to marry her and she did not want to make the job difficult for them. 

In the end, Nisha chose her own path. Many have gone the other way; probably they didn't have a choice. Some might have had, but didn't or couldn't exercise it. Nisha did. Now the world wants to know about it, although it will be interesting to see whether Nisha's initial acceptance of the concept of dowry will become an issue, or conveniently forgotten as it does not quite fit the image of Nisha that is now being projected around the world. 

Inherent Powers of High Courts(quashing of Fir)

 Aug 28, 2008

INTRODUCTION:

Inherent powers of the High Courts are the powers which are not additional to the powers conferred upon the High Courts. The most important aspect of such power is the Quashing of FIR by the court .

Section 482 CrPC talks about the inherent powers of the high courts. This section reproduces section 561-A of the code of 1898 without any change. It does not confer any new powers on the high courts but saves such inherent powers which the court possessed before the enactment of CrPC.

Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases. The section was added by the Code of Criminal Procedure(amendment) Act,1923 , as the high courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The section is a sort of reminder to the high courts that they are not merely courts n law, but also courts of justice and possess inherent powers to remove injustice. The inherent power in the high is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial . They are  necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The expression ‘ends of justice’ is not used to comprise within it any vague or nebulous concept of justice, nor even justice in philosophical sense , but justice according to law, statute law and the common law. Inherent powers are in the nature of etxtraordinary powers available only where no  express power is available to the high courts to do a particular thing , and where the express power does not negativate the existence of such inherent power. The jurisdiction under section 482 is discretionary , the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

OBJECTIVE:

To highlight the use of inherent powers by the high courts  under the Code of Criminal Procedure especially  for quashing of FIR or criminal complaints  before the filing of a chargesheet.

SCOPE :
 
The scope of the report is limited only to the quashing of FIR and highlighting some judgements delivered by the Supreme Court and the high courts in this context.

As per the scope of this section is concerned , it has a very wide scope. The inherent powers are only with the high courts and no other court can exercise these powers. The high courts are bound to exercise such powers whenever there is injustice done by the court below. Some of the inherent powers of the high courts are:

a)     quashing of  FIR
b)    quashing of complaint
c)     quashing of any order passed by the court below in revision etc.

In this report we are mainly concerned with quashing of FIR and criminal complaints.
  
MAIN TEXT:

1.     Section 482 :

It reads as follows :

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

The section was added by the Code of Criminal Procedure (Amendment) Act of 1923. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely:

1.     to give effect to an order under CrPC,

1. to prevent abuse of the process of the court,
2. to secure the ends of justice.

The jurisdiction of the high court is confined to the courts subordinate to it in the state for which the high court has been constituted. An application under section 482 cannot be entertained by any court other than the high court. The inherent jurisdiction possessed by the high court under this section is not confined to cases pending before it, but extends to all the cases which may come to its notice whether in appeal revision or otherwise. Inherent powers under section 482 can be invoked only in the event when there is no other remedy open to the aggrieved party.

2. INHERENT JURISDICTION VESTED IN THE HIGH COURTS :

The inherent jurisdiction of the high court preserved under this section is vested in it by law within the meaning of article 21 of the constitution . The procedure for invoking the inherent powers may be regulated by rules which may have been or be framed by the high courts. The power to make such rules is conferred on the high court by the constitution. Where the rules were previously framed , they continue in force by virtue of article 372 of the constitution.

3. HIGH COURT NOT TO FUNCTION AS A COURT OF APPEAL OR REVISION :

While exercising powers under section 482 the court does not function as a court of appeal or revision. It also would not enter into the appreciation of evidence . Inherent powers are to be very sparingly exercised for compelling reasons, when where there has been any abuse of process of law or any glaring injustice.

4. NO INHERENT POWERS OF SUBORDINATE COURTS : 

Under CrPC , inherent powers are vested only in the high courtsand the courts subordinate to the high courts have no inherent powers. In bindeshwari Prasad singh  v  kali singh , the supreme court held that a magistrate has no inherent power to restore a complaint dismissed in default.

5. INHERENT POWER NOT TO BE INVOKED IN MATTERS COVERED BY SPECIFIC PROVISIONS :   

The inherent power of the high court under this section cannot be invoked in regard to matters which are directly covered by specific provisions of CrPC. Eg. the petitioner who has a remedy under s. 397 cannot be permitted to invoke s 482. The powers of high court under this section are indeed very wide . However, they can only be exercised in cases where there is such a palpable want of jurisdiction in the proceedings initiated, as would result in unnecessary harassment and oppression to the accused concerned. The section cannot be invoked to supplant the normal processes and inquiries by a tribunal prescribed in CrPC.

6. WHETHER A PERSON WHO HAS NOT APPLIED UNDER SECTION 482 CAN BE GIVEN RELIEF :

When the matter comes before the high court , it can exercise its power under s.482 irrespective of the consideration as to which of the parties has come before it. The high court can give relief even to the other accused who did not file any petition under this section.

When the matter is pending before the supreme court and that court has ordered the session judge to issue non bailable warrant for the arrest of the petitioners, the high court cannot exercise its power under this section.

7. WHEN ALTERNATIVE REMEDY AVAILABLE

 If an effective alternative remedy is available , the high court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy. The powers of this section are not usually invoked when there is another remedy available.

8. APPRECIATION OF EVIDENCE :

In a proceeding under section 482, the high court will not enter into any finding of facts , particularly when the matter has been concluded by concurrent finding of facts of two courts below.

When the high court quashed a criminal complaint on consideration of certain documents produced by the petitioner , it was held by the supreme court that the order of the high court was illegal, as only when the high court comes to a conclusion that no prima facie case is made out , based on the complaint and the documents accompanying it, that the court could quash the complaint.

VIEW OF THE SUPREME COURT:
 
The Supreme Court has recently ruled that the High Courts can quash an FIR against a person if it did not prima facie disclose any offence.

A two judge bench said that ordinarily criminal proceedings instituted against an accused must be tried and taken to logical conclusions under the Criminal Procedure Code (Cr.P.C.) and the High Courts should be reluctant to interfere into the proceedings at an interlocutory stage.
"However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed", the bench said. Where the allegations in the FIR or the complaint or the accompanying documents taken at their face value, do not constitute the offence alleged, the person proceeded against in such a frivolous criminal litigation has to be saved, ruled the bench.

In the landmark case State of Haryana v. Bhajan Lal ( 1992 Supp.(1) SCC 335) :

A two-judge bench of the Supreme Court of India considered in detail the provisions of section 482 and the power of the high court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by high courts in exercise of their inherent powers to quash a criminal complaint:

1. The criminal complaint can be quashed when allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, prima facie constitute any offence or make out a case against the accused person.
2. The criminal complaint can be quashed when allegations made in the complaint are so absurd and inherently improbable that on the basis of which no prudent person can ever reach a conclusion that there are sufficient grounds for continuing the proceedings against the accused person.

3. The criminal complaint can be quashed when the allegations made in the
complaint and evidence collected in support of the complaint does not disclose the commission of any offence against the accused person.

4. The criminal complaint can be quashed when the complaint is manifestly attended with malafide or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused person and with a view to spite him due to private and personal grudge.

5. The criminal complaint can be quashed when there is an express legal bar under any of the provisions of the CrPC or any other legislation (under which a criminal proceeding is instituted) to the institution and continuance of criminal complaint.

Thus, if the high court is convinced that the criminal complaint does not disclose a cognizable offence and the continuation of an investigation is not based on sound foundations and would amount to an abuse of power of the police necessitating interference to secure the ends of justice, the high court will exercise its inherent power to quash the proceedings.

In Pepsi Foods Ltd. v. Special Judicial Magistrate  (AIR 1998 SC 128) :

the Supreme Court of India observed that:

“Though the magistrate can discharge the accused at any stage of the trial if he considers the charges to be groundless, this does not mean that the accused cannot approach the High Court under section 482 to have the complaint quashed if the complaint does disclose the commission of a cognizable offence against the accused person. In this case the Supreme Court held that the order of the High Court  refusing to quash the complaint on the ground that alternate remedy was available under the CrPC to the accused person was not proper.”

However it has been held by the Supreme Court of India in Om Prakash Singh v. State of UP  (2004 CrLJ 3567) :

That ‘if a complaint discloses the commission of a cognizable offence, it would not be a sound exercise of discretion to quash the criminal complaint’.

In Indian Oil Corporation v. NEPC India Ltd. and Others (2006) 6 SCC 736 ) :

A petition under section 482 was filed to quash two criminal complaints. The High Court by common judgments allowed the petition and quashed the two complaints. The order was challenged in appeal to Supreme Court of India.

While deciding the appeal, the Supreme Court of India laid down following principles:

1. The high courts should not exercise their inherent powers to stifle or scuttle a legitimate prosecution. The power to quash criminal complaints should be used  sparingly and with abundant caution.

2. The criminal complaint is not required to verbatim reproduce the legal
ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed.
Quashing of the complaint is warranted only where the complaint is bereft of
even the basic facts which are absolutely necessary for making out the alleged offence.

3. It was held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c
) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence.

As the nature and scope of civil proceedings are different from a criminal
proceeding, the mere fact that the complaint relates to a commercial
transaction or breach of contract, for which a civil remedy is available or has
been availed, is not by itself a ground to quash the criminal proceedings. The
test is whether the allegations in the complaint disclose a criminal offence or
not.

View of the High Courts :

 In  Pasupati Banerji v. King (AIR 1950 cal 97)  :

The court has observed that

“In order to attract the provisions of section 182 of the IPC, it must be established that the person gave information to a public servant which he knew or believed to be false and that he intended thereby to cause the public servant to use his lawful power to the injury or annoyance of any person. It is not sufficient that the person had reasons to believe it was false or that he did not believe it to be true; what is necessary that the person must have positive knowledge or belief that it was false.”

 In state of maharashtra v mohd yusuf noormohammad and others [1990 CrLJ 2106 (bom)] :

The high court held that , in the interest of peace, the right of  an individual to prosecute his complaint may be curtailed by the high court under section 482.

 CONCLUSION :

So as per the following report we have seen that how the high courts uses its inherent powers and how important it is for the high courts to use these powers. Section 482 has a very wide scope and its really important for the courts to use it properly and wisely. Many a times it has been observed that when there is an issue of money for eg. Any money matter then the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the high courts to quash such complaints as it leads to the abuse of the process of the lower courts.

Thus section 482 is very important for acquiring proper justice and to stop the public from filing fictitious complaints just to fulfill there personal grudges.

About the Author

Siddhartha Roy

RECOMMENDATIONS Third Monitoring & Evaluation Report 2009 on the Protection of Women from Domestic Violence Act, 2005

The M&E of the implementation of the PWDVA has reached another milestone in its third year. With the experience of having undertaken a nationwide evaluation of data with a primary emphasis on adequacy of infrastructure in the previous two years, the focus this year has shifted to a comprehensive assembling and analysis of the KAP of key stakeholders. Hence, in addition to finding continuing evidence of the need for effective and adequate infrastructure, the data analysed this year also points to the need to review certain aspects of the substantive and procedural law. Specific suggestions with regard to effective capacity-building of implementing agencies, towards ensuring adequate infrastructure, and creating a system of accountability for all the stakeholders have also been put forth.

Although a definitive conclusion as to the nature of amendments required in the PWDVA cannot be made at this nascent stage, recommendations highlighting the areas that require in-depth evaluation in the coming years have been provided in this chapter. In the next two years, LCWRI and ICRW seek to track these issues through data collection and analysis in order to suggest specific amendments to the PWDVA. The recommendations in this chapter have been provided with the understanding that the Law in order to be effective, ought to be responsive to the needs of its users and practices of the stakeholders.

Definitions and Coverage

Definitions

(1) There is a clear gap in the understanding of domestic violence as defined by the Law. While most stakeholders recognise emotional and verbal abuse as forms of violence under the Law, physical violence, which is visible in nature, appears to takes precedence over other forms. Sexual violence within marriage is clearly not recognized as a form of violence. This selective interpretation of domestic violence will and does influence the subsequent implementation of the Law by various stakeholders.

Trainings with stakeholders should be undertaken to clarify that domestic violence can take various forms and is not restricted to physical violence alone. The trainings must focus on sexual, emotional and verbal abuse as key components of the definition of domestic violence and undertake an in depth examination of these aspects so that women facing sexual, emotional or verbal violence receive as much attention from stakeholders as women facing physical domestic violence.

(2) Analysis of orders indicates that a combination of various forms of abuse are experienced and reported by the AP. This is consistent with our experience with Third Monitoring & Evaluation Report 2009 women who say that they face multiple forms of domestic violence, and is reiterated by the POs who say that domestic violence co-occurs1. The most common forms of abuse seem to be economic and physical (either singly or in combination with others). The predominant form of economic abuse reported is dispossession or the threat of dispossession of the AP from the shared household and refusal to provide maintenance.

This trend strengthens the case for equitable distribution of matrimonial property and underscores the continuing relevance of the issue of dowry and the need to strengthen the Dowry Prohibition Act, 1961.

(3) The right to reside remains an area of major concern for women. There is much confusion amongst the implementing agencies as to the scope of the definition of right to reside. Many POs and Police officials were unable to distinguish between the right to reside and the right to share in the property. Many felt that the Act gives the AP a right of ownership over property, which it does not. The right to reside is most affected by the Supreme Court judgment in Batra v Batra. The analysis of orders show that this judgment has been used to deny Residence Orders to married women and widows by providing the reasoning that since the premises belong to the mother-in-law and fatherin- law, and not the husband the home is not a shared household. However, what is encouraging is that in both Delhi and Maharashtra, the courts have distinguished the facts of the cases before them from that of Batra. They have upheld the AP’s right to reside, on the ground that in Batra v Batra, the husband’s claim to have left the house of his parents was false and done with the intention of denying the right of the wife.

There appears to be a clear need to further explain the scope of “shared household”under the Act and the right to reside as providing a right of residence, irrespective of ownership, title, or interest in the premises

Coverage: Aggrieved Person and Respondent

(4) As recorded in the previous M&E Reports, married women continue to remain the primary users of the PWDVA followed by widows. While the information gathered from order analysis shows that applications by daughters were limited, mothers have used the Law in a number of instances. However, by and large there appears to be a perception that the Act is predominantly a matrimonial law. A fair level of misunderstanding exists with regard to key concepts such as the definition of AP2 and of Respondent3. In the case of the AP, it arises mainly in the case of a mother-in-law wanting to fi le a complaint against her daughter-in-law. With regard to the Respondent, there seems to be general clarity that it is ‘any adult male person;’ the husband is shown to be the sole Respondent in a majority of orders examined. However, the confusion arises with regard to female relatives of the ‘adult male’ and is prevalent amongst the Judiciary as well.

Whilst trainings and awareness creation can help reduce the confusion with regard to these definitions, there still remains a need to revisit these definitions in the PWDVA. Perhaps a clarification is needed, that, female relatives of the husband/male partner come within the purview of the Act

Practices and Procedures

Pre-Litigation

(5) Counselling at the pre-litigation and litigation stage of proceedings have completely different objectives and requirements, which are rarely understood by all the relevant stakeholders. At the pre-litigation stage, counselling should be provided to the AP to restore her self-esteem, provide emotional support and assist her in making an informed decision as to whether she wants to initiate legal proceedings. As far as the Respondent is concerned, the focus should be on helping them acknowledge their past acts of violence and counsel them to stop further violence. The objective of court directed counselling at the litigation stage is mainly to prevent violence, and where the woman so desires, attempt settlement. It is difficult to gauge who is providing counselling services at the pre-litigation stage. However, findings have made it clear that women need pre-litigation counselling in  addition to pre-litigation advice as provided under Section 5 of the Act. The courts appear to continue to rely heavily on counselling and mediation. However, the concern here remains whether the courts are able to distinguish between counselling, mediation and settlement.

Therefore, there is a need to understand counselling as mandated by the Law and its intent, in order to counter practices that might work against that intent. Findings clearly indicate that the meaning and objective of counselling under the Law, by whom and at what stage, need further elaboration. Hence, counselling needs to be defi ned and its objective at both the pre-litigation and litigation stages needs to be clarifi ed through appropriate amendments to the provisions on counselling under the Act and Rules.

(6) The objective and purpose of the DIR, of serving as a documentary record/evidence of violence and simplifying the procedural requirements in accessing courts, has not translated into practice. Findings have indicated that POs neither fi ll out a DIR each time a woman approach them, nor do they maintain any other record of the woman’s complaint or visit. This could have negative implications in case the woman decides to fi le a case in court at a later stage as no record of the history of violence would be available. Better understanding with regard to the purpose of the DIR is required. Perhaps practice directions from relevant High Courts clarifying this issue would help achieve uniform interpretation and usage.

Litigation

(7) Findings from order analysis in Delhi lend credence to the fact that in the absence of a DIR to accompany the application fi led before the court, it is the woman whose interest gets compromised. In practice, the courts appear to interpret the proviso to Section 12(1) of the Act to mean that a DIR needs to be recorded by the PO or that they must necessarily consider the information contained in the DIR before passing any order under the Act. This problematic interpretation by the courts may therefore make a difference between availability of speedy reliefs and delays in proceedings. One of the most disturbing observations has been the lack of information/limited reference made to the role played by POs in the process of litigation.This finding needs to be tracked and verified in the coming years to develop a better understanding about the role of POs within the litigation process.

(8) In most states, the practice of POs seeking assistance from Police in the discharge of specific functions under the PWDVA is gradually emerging. However, usually, it is  only upon court direction that such assistance is provided. This can be attributed to the common misconception amongst the Police that as the PWDVA is a civil law; they have a limited or no role to play in its implementation. Therefore, clarity on the role of the Police in the implementation of the PWDVA, perhaps by way of trainings or directives is essential to ensure consistency in the nature of assistance provided by them. Both the Police Department and the Judiciary are ideally placed to provide such directions.

(9) As in the previous M&E Reports, reliefs that are most commonly sought and granted are Maintenance Orders, Protection Orders and Residence Orders, with Maintenance Orders being the most commonly granted, followed by Protections Orders and then Residence Orders. The relief of maintenance sought is primarily on refusal to maintain the wife and children as well as desertion or dispossession from the shared household. The number of ex-parte/ad-interim orders being granted is extremely low. This is a negative trend as it defeats the purpose of granting immediate relief to the woman facing domestic violence and extricating her from a violent environment. Hence, it is strongly recommended that the courts do not hesitate to grant ex-parte or ad-interim orders where there is a prima facie case and where the denial can, and often does, lead to imminent harm or danger. Interim orders are being granted in Delhi and Maharashtra and Maintenance Orders are the most frequently provided interim relief. However, more emphasis needs to be placed on the significance of immediately granting interim orders. They should be granted as a matter of routine whenever the AP can prove a prima facie case in her favour, without going into technicalities of procedure. 

(10) The PWDVA vests the Judiciary with discretionary powers with regard to procedure to be followed when dealing with domestic violence cases. This was done

with the intention of allowing the Judiciary space for creative interpretation and initiative. However, in certain instances, it appears that this discretionary power is resulting in a lack of uniformity in procedures being followed. Therefore, it may be recommended that there is a need for guidance with regard to procedures. In the absence of amendments to the Act, this could be provided by High Courts in order to address the confusion or delays but at the same time, care must be taken to ensure that the directions provided do not defeat the intention and object of the Law.

(11) By and large, the procedure being adopted by the court is that at the interim stage, decisions are based on affidavits in Form III while at the final stage, Section 125 CrPC procedure is followed. A unique but disturbing trend of a large number of compromises or settlements has emerged9 in Gujarat. Although it was not possible to determine the reasons for this trend, perhaps in many of these cases compromises are imposed on women in the name of maintaining family, which in the process expose her to continued and/or even greater violence. In view of the fact that a similar finding emerged in case of Himachal Pradesh in the Second M&E Report, it is essential to undertake a detailed analysis of this development in states where such high rates of settlement and compromise have been observed over a period of time, to understand the factors that encourage such high rates of settlements. 

(12) Order analysis has revealed a trend where a majority of appeals are being preferred at the interim stage of the proceedings as opposed to being made against final orders. This is of concern as the execution of the interim order passed gets stalled during the appeal proceedings. Thus this practice should not be allowed and encouraged as it defeats the purpose of providing immediate reliefs to the woman in order to extricate her from the violent environment. It is recommended that the Act should be amended to the effect that appeals are disallowed at the interim stage in domestic violence cases and are disposed of within a stipulated time frame so as to prevent prolonged proceedings that defeat the very purpose of immediate reliefs mandated under the Act.

Post-Litigation

(13) Filing complaints for breach under Section 31 the PWDVA remains the predominant method of enforcement of orders. However, one of the problematic aspects that require the immediate attention of the higher Judiciary as well as policy makers is that, in a majority of cases, no direction for enforcement/compliance of orders is included in the orders themselves. This acts as a barrier for the woman who must approach the court separately for such a direction. It is recommended that a direction for enforcement be contained in the order and in addition the courts direct the Police to assist the POs in the enforcement of the order should the need arise. Further, a mechanism, to track orders passed by courts and their subsequent execution, needs to be set up.

(14) Findings10 indicated that the court is failing to provide updates to the Pos regarding the proceedings of the case and copies of orders from the court are also not being forwarded to them. This acts as a barrier in the implementation of the PWDVA, as POs are expected to enforce orders.

Infrastructure

(15) There has been a gradual increase in the appointment of independent POs on a full-time basis over the past 3 years. Whilst it is desirable that a cadre of independent, full-time POs with the requisite qualifications and gendered perspective be appointed, they would not be effective without adequate infrastructure and budget such as allowance for transport, mobile phone, private office space, and official letterheads and so on. Thus, what is needed is not merely infrastructural aid but institutional status as well. There is a need to review and perhaps ensure some uniformity in the qualifications of POs, particularly in view of the need to appoint a full-time cadre of POs to effectively implement the Law. However, a defi nitive conclusion as to what the qualification and role of the PO ought to be can only be arrived at following a separate study which includes comprehensive data collection and analysis of practices in this regard across the states. Regular and systematic assessments and reviews should be undertaken by states with regard to the type of support being given to POs. This will facilitate an assessment of whether or not suffi cient support is being given to the POs to enable them to perform the role that is envisioned under the Law. If it is the case that support is lacking, then this can be looked into and rectifi ed. If it is the case that despite the support being given, the PO is still unable to perform his/her duty,then the state can consider what other types of support should and could be made available to the PO .

(16) Ambiguity surrounds the issue of who is to serve notice, the limitations faced by POs when they are required to do so, and the resultant difficulties faced by women litigants. Hence, there is a clear need to address this issue and provide the requisite personnel/assistance to POs or in the alternative, designate the Police/court process servers to undertake this responsibility. The High Courts of Delhi and Andhra Pradesh have set a good example by bringing clarity and consistency through their practice directions.

(17) The collation of national infrastructure data highlighted the fact that three years after the coming into force of the Act, nodal departments of most states were still unable to provide detailed information about the role of SPs, Shelter Homes and Medical Facilities as it is still not clearly visible. Hence, there is a need for coordination between stakeholders and the adoption of a uniform practice of reporting to nodal departments regarding their structure and functioning, as discussed further in the Monitoring and Accountability section below.

Budgetary Allocations

(18) To date, it has been reported that 17 states have made budgetary allocations for the implementation of the PWDVA. However, there is no systematic basis for making these allocations, and much is left to the discretion of the individual states. There is a definite need to increase budget for support and for allocation of funds to implement the Act. It is suggested that a scheme should be formulated to ensure a regular annual flow of a specified amount every year with ongoing financial monitoring.

Awareness Creation and Capacity Building

 

(19) The findings of this Report highlight the fact that knowledge of the Law and attitudes of the stakeholders hold equal importance as an imbalance of either can hinder or frustrate the objective of the Law. Further, it is clear that there are gaps in the understanding of the PWDVA and its coverage amongst Police, POs and Judiciary which need to be addressed. Trainings undertaken by LCWRI have demonstrated that there is a significant level of positive change that can be achieved even through limited (in terms of length and exposure) interventions, if there is comprehensive coverage of the Law and a gendered approach is adopted. This leads to the assumption that for all stakeholders to be covered and for the impact to be sustained, there is a critical need for systematic and more intensive trainings. In order to achieve this, trainings must be institutionalised and the primary responsibility must vest with nodal departments and training academies. As a first step, states should undertake systematic orientation training on the PWDVA, thereby having a trained and sensitised body of implementers of the Law from the outset. This should particularly be ensured every time a cadre of POs, new batches of Police Officers and Judges are inducted into their respective services. This ought to be followed up with special refresher programmes for in-service officers. Professionals and persons with expertise in the area of gender and domestic violence should be invited to conduct these training programmes. In fact, the training interventions conducted with the Judiciary, made it clear that Judges respond well to professional experts such as medical professionals, Lawyers etc. At the same time, a specific component of gender sensitisation with a specialist exploring the attitudes of the Judges is crucial.

(20) The LCWRI model of capacity building or Training Interventions to bridge gaps and ensure effective implementation of the Law works effectively, as indicated by our findings. It is recommended and hoped that the participants trained will take on the responsibility of further training and sharing information and knowledge gained with their colleagues and juniors. However, this is an aspect that would require some time and tracking in the years to come.

(21) There are gaps in awareness and knowledge amongst the POs on specific  procedures to be followed in general and with regard to the fi lling of DIRs, serving of notice and reporting of breach in particular. With regard to the Police, findings are clearly indicative of gendered perceptions. As the Police are often the first to be approached by women facing domestic violence, these gendered perceptions, if not addressed through appropriate training and sensitisation workshops can be impending barriers to women accessing the law. Hence, training programmes with the POs, Police and other relevant stakeholders need to be conducted to address this issue in a comprehensive manner.

Monitoring and Accountability

(22) The existence of varied practices and lack of adequate infrastructure, budget and trainings across the states reiterates the need to institutionalise the M&E of the implementation of the PWDVA. The State needs to adopt a comprehensive system for the monitoring and evaluation of the implementation of the Law on an annual basis as recommended in the First and Second M&E Reports.

(23) To date, there is no system of mandatory reporting to the nodal department by all stakeholders. In fact, the information provided by the nodal departments show that it is only the POs who report to them. Therefore, over a period of time, a misconceived assumption has developed; that it is mainly the PO who is responsible for the implementation of the PWDVA and that other stakeholders do not have much of a role to play. Hence, there is an urgent need to ensure accountability through developing a robust system of mandatory reporting on specific indicators15 for all stakeholders, including the Judiciary. As the Judiciary follows a distinct reporting structure, it is recommended that there is regular sharing of information regarding the PWDVA between the higher Judiciary and the nodal departments.

(24) Currently, performance in cases fi led under the PWDVA does not form a part of the criteria against which the Judiciary is evaluated. Provision of information as to the exact nature of the cases is left to the discretion of the individual Judge. The issue of domestic violence should be given the priority and focus it deserves. Therefore, it is recommended that cases fi led under the PWDVA should be included as part of the duty performance system of the Judiciary. A similar approach can also be followed in case of POs, with the development of an incentive-based performance and appraisal system to facilitate accountability and better implementation of the Law.

(25) A major obstacle in the identification of the total number of cases fi led before the courts under the PWDVA, arises due to the existing system of registering and labeling cases. In some courts it is a miscellaneous application, while in some, it is registered as a criminal case or a domestic violence case. Uniformity in the description and registration of the cases under the PWDVA in the Court Registry is a much needed requirement.The First M&E Report identified three models of implementation of the PWDVA. This year’s M&E Report has not been able to track the existence of these models, across all states due to the specifi c focus on a few states. However, these models continue to exist in the 3 states studied this year, Andhra Pradesh (Public Model), Rajasthan (Private Model) and Delhi (Mixed Model). Tracking these models continue to remain relevant in the years to come.

PWDVA – PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT

LCWRI- LAWYERS COLLECTIVE WOMENS RIGHTS INITIATIVE

PO – PROTECTION OFFICERS

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