Friday, November 30, 2007
Monday, November 26, 2007
Sunday, November 25, 2007
What is to be done fate is against.
The fate
Three days back she came to my Office in early morning. Usually my office start functioning at 8.30 Am and in certain occasions me is earlier than my clerk. She is about 62 years, 4 feet height and semi blind poor village lady. When I entered into my cabin, her feeble noise invited me from the corner of the office room near to the seat of clerk “sir, why are you late today? I have been waiting here half hours back”. Even without seeing her face I realized she is Meenakshiamma my very old client, and called her first to my cabin. Her feeble but dominate and corrective invitation with impatience lost its rigidity in rhythmic and sweet utterance. I am so familiar with the silly but persuading complaints of that village lady from the last ten years and she is of a client not liked with my appointment in other courts even at the roll call time of her case. In my experience she is so much trusted me and also paid much from her meagre claim amounts than compared to other clients of haves. Her visit is unexpected because she has no pending cases or chance for maintenance claims since her husband expired 9 months back and I had no information about her from the last 6 months. She came with a folded envelop contained unreadable carbon copy of a letter in English served from AG'S office regarding her family pension.
Her life is so pity as I knew. Her husband Kesavan was a retired government school master and pensioner when she first approached me for filing maintenance petition for herself and minor daughter. They belong to a backward community and relatives prior to their marriage. Meenakshiamma’s aged maternal uncle had no issues and she lived with him as an adoptive daughter and at that time her marriage was solemnized with his employed and younger brother in-law i.e. wife’s brother Kesavan about 40 years back. Three daughters born out from their wed-lock but he suspected about the chastity of his wife at her last pregnancy. And in the mean time her uncle died intestate and Kesavan disposed off all his properties on behalf of his sister and left the place with his elder sister leaving his wife and children in the paternal home of his wife after made an attempt to burn the home with kerosene. Meenakshiamma’s real parents died at that time leaving her only brother working outside of Kerala. There started her litigation 26 years back against Kesavan for maintenance and lonely struggle for her children. The allowed total maintenance amount of Rs.150/- per month for the four lives was so meagre for their existence and her husband made willful default, she has taken several roles as Peerless agent, Maid servant, Home nurse etc for the well being of the children. Once prior to my engagement her husband accepted imprisonment on refusal of the arrears of maintenance amount to my client. The only helpful thing happened in life is from her sole younger brother working out side who allowed her to reside in the family house belong to him.
Her elder daughter was a chronic headache patient and after completing the secondary school education, the eldest daughter has taken to the work place of her brother for further studies and on his due efforts of the years she got a job in Delhi government service and got married with a co-worker. Misfortune followed my client as in the form of brain tumor of her elder daughter and consequential death within five months of her entry in the service. In her misery and acute agony my client courageously gave effective support for the education of daughters. Her second daughter is a nurse and got married about 4 years back having no time to look after her aged mother and unemployed post graduate younger sister. Long years hand work in the midst of misery and agony ruined her health by chronic asthma, sugar, pressure, back pain, cataract etc and she is not in a position to do any work. The marriage of her second daughter heavily indebted my client and youngest daughter’s marriage is to be conducted, and on her frantic run the unexpected death of Kesavan Occurred.
After the retirement from the service as known to me from his various affidavits before the court, Kesavan was leading a concealed life with his elder sister and a maid servant in a hilly rural area at about 150 km away from his family house and my client may correct as with a concubine. All his previous counter affidavits, Kesavan leveled unchastity against my client and denied paternity over her third daughter. But in his pension book and service records only his 3 daughter’s names recorded as legal heirs and nominees left blank in wife’s column. But in the last stage of their litigation he was paying the maintenance amount directly to my client by traveling 150 km with his sickness on each execution petitions without any objection. It was a difficult task for me to found out his address through his treasury account on pension at the first engagement for my client. At her old age and financial indebt, it was an ambition of my client to make admit her chastity and paternity of her daughters before the society by her husband as the minimum expectation of a village lady than monetary help. In several occasions I truly doubted about her regular and usual arrival in the court in her sickness was either for collecting the meagre monthly maintenance or for seeing the aged husband. In my experience once she dared to submit her willingness before the court to relinquish a substantial portion of arrears amount when her husband was ordered to send jail in the absence of non payment of the arrears. The natural revolution of years molded their mind to conceive on delusion was the reason for their slight change at old age.
She had a little fear to attend her husband’s funeral and on taking my advice herself and eldest daughter found the path for their satisfaction. I could see the glimpses of light in her eyes in sadness when she was informed about the right to get family pension on account of the demised husband. I was firm belief that soon she would become a pensioner when she informed about her application of 8 months back before the authorities and her next arrival was collecting some records like her marriage certificate from her file in connection with the pension application. On passing all these things in my mind I noticed about her pale and wrinkle face and shabby dresses which made an impression of 10 years oldness on her face.
Now a clerical mistake was the villain in her life and her life and future is revolving on the mistake in the name of wife of the deceased in the death register. There is no other office or department for her to visit for sanctioning her pension papers. She told that some perverted officers dared to demand her to produce an official certificate that her marriage has not been dissolved for passing the pension application. Her unmarried and post graduated daughter is working as a home nurse for their lively hood and she is always in hospital in loneliness. On a careful reading through the illegible scribe in between the lines I realized that the letter is the copy of one forwarded to the District Director of Education as an objection directing him to collect and forward the pension application in the name of wife shown in the death certificate. How easy for the officials to make a new wife to a deceased man. On knowing the contents of the letter my client had a sigh as "what is to be done fate is against" and put a question whether she could get the pension in deathbed?
Three days back she came to my Office in early morning. Usually my office start functioning at 8.30 Am and in certain occasions me is earlier than my clerk. She is about 62 years, 4 feet height and semi blind poor village lady. When I entered into my cabin, her feeble noise invited me from the corner of the office room near to the seat of clerk “sir, why are you late today? I have been waiting here half hours back”. Even without seeing her face I realized she is Meenakshiamma my very old client, and called her first to my cabin. Her feeble but dominate and corrective invitation with impatience lost its rigidity in rhythmic and sweet utterance. I am so familiar with the silly but persuading complaints of that village lady from the last ten years and she is of a client not liked with my appointment in other courts even at the roll call time of her case. In my experience she is so much trusted me and also paid much from her meagre claim amounts than compared to other clients of haves. Her visit is unexpected because she has no pending cases or chance for maintenance claims since her husband expired 9 months back and I had no information about her from the last 6 months. She came with a folded envelop contained unreadable carbon copy of a letter in English served from AG'S office regarding her family pension.
Her life is so pity as I knew. Her husband Kesavan was a retired government school master and pensioner when she first approached me for filing maintenance petition for herself and minor daughter. They belong to a backward community and relatives prior to their marriage. Meenakshiamma’s aged maternal uncle had no issues and she lived with him as an adoptive daughter and at that time her marriage was solemnized with his employed and younger brother in-law i.e. wife’s brother Kesavan about 40 years back. Three daughters born out from their wed-lock but he suspected about the chastity of his wife at her last pregnancy. And in the mean time her uncle died intestate and Kesavan disposed off all his properties on behalf of his sister and left the place with his elder sister leaving his wife and children in the paternal home of his wife after made an attempt to burn the home with kerosene. Meenakshiamma’s real parents died at that time leaving her only brother working outside of Kerala. There started her litigation 26 years back against Kesavan for maintenance and lonely struggle for her children. The allowed total maintenance amount of Rs.150/- per month for the four lives was so meagre for their existence and her husband made willful default, she has taken several roles as Peerless agent, Maid servant, Home nurse etc for the well being of the children. Once prior to my engagement her husband accepted imprisonment on refusal of the arrears of maintenance amount to my client. The only helpful thing happened in life is from her sole younger brother working out side who allowed her to reside in the family house belong to him.
Her elder daughter was a chronic headache patient and after completing the secondary school education, the eldest daughter has taken to the work place of her brother for further studies and on his due efforts of the years she got a job in Delhi government service and got married with a co-worker. Misfortune followed my client as in the form of brain tumor of her elder daughter and consequential death within five months of her entry in the service. In her misery and acute agony my client courageously gave effective support for the education of daughters. Her second daughter is a nurse and got married about 4 years back having no time to look after her aged mother and unemployed post graduate younger sister. Long years hand work in the midst of misery and agony ruined her health by chronic asthma, sugar, pressure, back pain, cataract etc and she is not in a position to do any work. The marriage of her second daughter heavily indebted my client and youngest daughter’s marriage is to be conducted, and on her frantic run the unexpected death of Kesavan Occurred.
After the retirement from the service as known to me from his various affidavits before the court, Kesavan was leading a concealed life with his elder sister and a maid servant in a hilly rural area at about 150 km away from his family house and my client may correct as with a concubine. All his previous counter affidavits, Kesavan leveled unchastity against my client and denied paternity over her third daughter. But in his pension book and service records only his 3 daughter’s names recorded as legal heirs and nominees left blank in wife’s column. But in the last stage of their litigation he was paying the maintenance amount directly to my client by traveling 150 km with his sickness on each execution petitions without any objection. It was a difficult task for me to found out his address through his treasury account on pension at the first engagement for my client. At her old age and financial indebt, it was an ambition of my client to make admit her chastity and paternity of her daughters before the society by her husband as the minimum expectation of a village lady than monetary help. In several occasions I truly doubted about her regular and usual arrival in the court in her sickness was either for collecting the meagre monthly maintenance or for seeing the aged husband. In my experience once she dared to submit her willingness before the court to relinquish a substantial portion of arrears amount when her husband was ordered to send jail in the absence of non payment of the arrears. The natural revolution of years molded their mind to conceive on delusion was the reason for their slight change at old age.
She had a little fear to attend her husband’s funeral and on taking my advice herself and eldest daughter found the path for their satisfaction. I could see the glimpses of light in her eyes in sadness when she was informed about the right to get family pension on account of the demised husband. I was firm belief that soon she would become a pensioner when she informed about her application of 8 months back before the authorities and her next arrival was collecting some records like her marriage certificate from her file in connection with the pension application. On passing all these things in my mind I noticed about her pale and wrinkle face and shabby dresses which made an impression of 10 years oldness on her face.
Now a clerical mistake was the villain in her life and her life and future is revolving on the mistake in the name of wife of the deceased in the death register. There is no other office or department for her to visit for sanctioning her pension papers. She told that some perverted officers dared to demand her to produce an official certificate that her marriage has not been dissolved for passing the pension application. Her unmarried and post graduated daughter is working as a home nurse for their lively hood and she is always in hospital in loneliness. On a careful reading through the illegible scribe in between the lines I realized that the letter is the copy of one forwarded to the District Director of Education as an objection directing him to collect and forward the pension application in the name of wife shown in the death certificate. How easy for the officials to make a new wife to a deceased man. On knowing the contents of the letter my client had a sigh as "what is to be done fate is against" and put a question whether she could get the pension in deathbed?
Thursday, November 22, 2007
The Real Actors
The real actors
I had a client named Pappan Nair (Not real name) in the year 1999. He made an impression that he is having a genuine case and grievances. And for making such an impression, he consulted me 4 or 5 times before the filing of his divorce case. I was not at all aware or familiar with him at his first arrival which I still remember in my mind. One after noon at about 2 Pm when I returned from the court, a stout man with a heavy and terrible mustache having about 45 years of age was sitting on the staircase near to the corridor of my Office, and by his side a thin old man was snoring in a sitting posture. At the first glance I realized about their drunkenness. When I entered my office after passing them, they Hurley followed me, and the mustached man demanded me to prepare an urgent divorce petition against his wife and paramour and without any hesitation both sat on the client’s chair as my familiar clients.
The mustached man Pappan Nair introduced as an ex-service man then working as a guard at Trivandrum and the other aged as his neighbor and friend. He told me that his wife is having bad character, and his maternal uncle is keeping her with him at his residence 200 km away from Trivandrum. With the aid and support of the uncle, his wife filed several criminal cases against him and near relatives. He also stated that his wife named Radha left him 7 months back by locking their residence at Trivandrum after admitting their college going daughter in to a hostel. He added that his uncle is also the uncle of the wife i.e. the sister’s husband of the mother of the wife, and the issue less uncle had illicit relation with Radha prior to the marriage, and neighbors of the locality and relatives were well aware about them. He also stated the uncle caused him to marry Radha in a pretext to give all his landed properties to my client. On making his statements my client has been turning his neck to side and watching the expressions of his neighbor, and all the time the aged man nodded his head to emphasis that story. But the story was not fully digestible to me. When I told about any record against his wife and uncle, he hinted about a letter of his wife while in army service. I send him back to come with records. The next time he told about the missing of the old letter and queried about other valuable records necessary for his case. After about two months of his second visit he came to the office with a letter of his uncle of one month back to wife in Trivandrum Address contains filthy matters. He told me that the letter found out on a break open search in the residence at Trivandrum. Even though the letter had little help, I agree to file a divorce petition for my client and for taking my confidence he boarded a relative to my office in another occasion.
At the first posting date my client’s case, he called and informed me that he would directly come to the court since his bus from Trivandrum was late. But my client was absent at the time of roll call of his case and on submitting the reason for his absence unexpectedly a very old man, tall but hunchback, thin but weak on his walking stick stepped to the place of litigants on calling the names of respondents. He was making some noise but not clear to judge and me. On seeing the physical nature I was sure that the present man could not be the called paramour/co-respondent in the case. The judge was so humorous and his commend made a funny mess in the court hall that “he never be able as the other man of the wife”. The judge asked about his age 3 times to end his ears, and in a loud voice he replied 89 years. But in my petition the co-adulterer’s age was stated only 68. At a sudden, a dark and stout lady rushed into the court hall and stepped near to the old man and murmured loudly “false case, I will show him and his counsel for the same etc”. She was gasping and her long handbag, folding umbrella, scattered hairs and facial expression made an impression that she just arrived after a long journey. On seeing the lady the old man started to abuse her loudly by ignoring the place, and the judge was furious about the seen and adjourned the case to another day as irritated. When I get out from the court hall, my client was waiting for me in the corridor of the court hall and placed a question “how about my wife”. On walking through the corridor I asked him about the misrepresentation regarding the age of his uncle. With a hidden smile he explained that nobody would believe the truth and already one another advocate refused to file his case on knowing the age of his uncle. Just completing his answer a heavy hit with umbrella felt on his shoulder with a shouting voice from the back and a handling stud rolled over the floor by covering us. On my turning gaze, I could see his wife like a demon with handle less umbrella and the fast coming uncle behind her aim at his stick. At a sudden my client run away from the place without giving my fees, leaving me among the shouting and abusing rivals. Thereafter 4 or 5 posting dates for his case in six months gap, but he or his wife never appeared. Uncle filed strong objection against the contentions leveled against him in the petition, and the petition was dismissed on the continuous absence of the petitioner my client. In the mean time uncle had gifted out his landed property with residence at Trivandrum in the name of Radha. After a few years of the case the counsel appeared for the uncle told me that the husband and wife were in collusive cheated his client and misappropriated the property in the heart of the city having several millions of rupees value.
I had a client named Pappan Nair (Not real name) in the year 1999. He made an impression that he is having a genuine case and grievances. And for making such an impression, he consulted me 4 or 5 times before the filing of his divorce case. I was not at all aware or familiar with him at his first arrival which I still remember in my mind. One after noon at about 2 Pm when I returned from the court, a stout man with a heavy and terrible mustache having about 45 years of age was sitting on the staircase near to the corridor of my Office, and by his side a thin old man was snoring in a sitting posture. At the first glance I realized about their drunkenness. When I entered my office after passing them, they Hurley followed me, and the mustached man demanded me to prepare an urgent divorce petition against his wife and paramour and without any hesitation both sat on the client’s chair as my familiar clients.
The mustached man Pappan Nair introduced as an ex-service man then working as a guard at Trivandrum and the other aged as his neighbor and friend. He told me that his wife is having bad character, and his maternal uncle is keeping her with him at his residence 200 km away from Trivandrum. With the aid and support of the uncle, his wife filed several criminal cases against him and near relatives. He also stated that his wife named Radha left him 7 months back by locking their residence at Trivandrum after admitting their college going daughter in to a hostel. He added that his uncle is also the uncle of the wife i.e. the sister’s husband of the mother of the wife, and the issue less uncle had illicit relation with Radha prior to the marriage, and neighbors of the locality and relatives were well aware about them. He also stated the uncle caused him to marry Radha in a pretext to give all his landed properties to my client. On making his statements my client has been turning his neck to side and watching the expressions of his neighbor, and all the time the aged man nodded his head to emphasis that story. But the story was not fully digestible to me. When I told about any record against his wife and uncle, he hinted about a letter of his wife while in army service. I send him back to come with records. The next time he told about the missing of the old letter and queried about other valuable records necessary for his case. After about two months of his second visit he came to the office with a letter of his uncle of one month back to wife in Trivandrum Address contains filthy matters. He told me that the letter found out on a break open search in the residence at Trivandrum. Even though the letter had little help, I agree to file a divorce petition for my client and for taking my confidence he boarded a relative to my office in another occasion.
At the first posting date my client’s case, he called and informed me that he would directly come to the court since his bus from Trivandrum was late. But my client was absent at the time of roll call of his case and on submitting the reason for his absence unexpectedly a very old man, tall but hunchback, thin but weak on his walking stick stepped to the place of litigants on calling the names of respondents. He was making some noise but not clear to judge and me. On seeing the physical nature I was sure that the present man could not be the called paramour/co-respondent in the case. The judge was so humorous and his commend made a funny mess in the court hall that “he never be able as the other man of the wife”. The judge asked about his age 3 times to end his ears, and in a loud voice he replied 89 years. But in my petition the co-adulterer’s age was stated only 68. At a sudden, a dark and stout lady rushed into the court hall and stepped near to the old man and murmured loudly “false case, I will show him and his counsel for the same etc”. She was gasping and her long handbag, folding umbrella, scattered hairs and facial expression made an impression that she just arrived after a long journey. On seeing the lady the old man started to abuse her loudly by ignoring the place, and the judge was furious about the seen and adjourned the case to another day as irritated. When I get out from the court hall, my client was waiting for me in the corridor of the court hall and placed a question “how about my wife”. On walking through the corridor I asked him about the misrepresentation regarding the age of his uncle. With a hidden smile he explained that nobody would believe the truth and already one another advocate refused to file his case on knowing the age of his uncle. Just completing his answer a heavy hit with umbrella felt on his shoulder with a shouting voice from the back and a handling stud rolled over the floor by covering us. On my turning gaze, I could see his wife like a demon with handle less umbrella and the fast coming uncle behind her aim at his stick. At a sudden my client run away from the place without giving my fees, leaving me among the shouting and abusing rivals. Thereafter 4 or 5 posting dates for his case in six months gap, but he or his wife never appeared. Uncle filed strong objection against the contentions leveled against him in the petition, and the petition was dismissed on the continuous absence of the petitioner my client. In the mean time uncle had gifted out his landed property with residence at Trivandrum in the name of Radha. After a few years of the case the counsel appeared for the uncle told me that the husband and wife were in collusive cheated his client and misappropriated the property in the heart of the city having several millions of rupees value.
Monday, November 19, 2007
Saturday, November 17, 2007
My dreams of a new claim.
Yesterday I had a dream in the early morning. In my dream a fair looking lady having about 45 years of age handling her 4 years old female child approached my office with a surprising claim. After a few minutes talk, I could realise that she was my client about 7 years back in connection with her matrimonial disputes. I memorised that all her claims against her husband and his family amicably settled and her husband died within two months after her obtaining of divorce Order from the court. In her case, the surprising thing was that her father -in- law who was the rival party in her case had given adequate support for establishing her case and settling all her and minor Son's monitory claims. In fact her monitory claims was settled out of court by the parties directly even without my presence. Thereafter she remarried and the child with her is in her second marriage. She told me that her second husband left her 3 years back after making a huge debt in the society by his collapsed business, and now he is unknown and she resides with her aged parents. Now her demand is to make a new claim over the family property of her former father-in-law who deceased recently. On my query she replied that she could get a huge amount of 8 Lakhs from her father-in-law at the time of settlement and thereafter he partitioned his remaining landed property to his other children and wife. The father-in-law has given about 5 Acres of landed property each to his other surviving sons on family settlement in the year 2000. And one of her former husband's brother is residing in the family residence which was her former matrimonial home. She vehemently argued before me that her given share was so meagre compared to the present value of property given to the brothers of her former husband. And her new claim is for demanding an additional amount of Rs.10 Lakhs from the former brother-in-law residing in the family property or allow her to reside there with full maintenance right along with children. I duly informed her about the difficulty since she has remarried and absence of precedence in such claims in Indian Law. On placing my excuses and arguements she unexpectedly took a papper cutting from her vanity bag and placed befrore my table and made a smile like a winner in the game. On seeing the same, a terrible feeling has passed through my mind subsequent to my initial pleasure. The paper cutting was an article titled as "Modern Legislation In India" written by me in the year 1996 as a criticism over a domostic violence Act. When I was making sure about the expected disaster in the Indan family, my eyes were opened from the floor bneath my cot.
Saturday, November 3, 2007
My First Learning from a Thief
I began my practice at the end of the year 1995 as a junior to the office of Late Advocate Sri.V.J.Varkey at Kottayam station. At the time of my joining there were about 15 juniors having active practice with my senior and it was unusual for me to engage with the files of the office by avoiding the other elder juniors. In the first 6 months of my practice, I was merely spectator before the lower courts other than "pray for time" for my senior. As junior lawyers, one of my friend and me were entrusted with the the case of an alleged habitual offender from CJM court for crown defence in the middle of the year 1996.On perusal of the Charge Sheet I surprised that my client has just covered 18 years and the offence charged against him was under Se.380 of IPC and 6 other similar cases were simultaneously registered by the police against my client for burglary/theft. On my enquiry I understood that my client is not having any school education and belongs to a poor Tamil family residing in a railway colony shed. Since my client was under judicial custody, the trial was so speedy and I met my client at the sub-jail and discussed with the matters just two days before the date posted for the examination of the witness. On that visit I was of the belief that I could collect relevant materials for a proper defence, and well prepared for the cross examination of the witnesses for the on going dates. On the date of evidence, the police produced my client before the court at 11 a.m and after Roll Call of his cases he called me to his side near the accused's box by gusters. In fact I was of the belief that my client had to give some more information regarding the present witnesses on that date. But surprisingly it was not for giving any mor information in my concept but for giving me an advise. He told me to put up a defence case that the charged section of 380 IPC would not stand, even though the witnesses were supporting the police case. On seeing my perplexity on my face, he told that the alleged place of theft in the charge sheet is only an open shed and not a dwelling house, and section379 is only suited to the case and also advised me to apply for a short adjurnment in case I have any doubt regarding the charged section. On my anxious query he told that the advice was given from the jailmates of my client experienced with similer crimes. My cross examination of the witnesses and claimpetition over the unidentified stollen articles on the basis of the advice of my client was appriciated by the judge. Even though a surprising end of my engagement happened at the middle in that case, the timely advice of my client is glittering in my mind.
Friday, November 2, 2007
Modern Legislation In India
MODERN LEGISLATION IN INDIA
Pardon to my ignorance, I have a doubt whether the legislation is for judiciary and the judiciary is for legislators. My doubt is reasonably arisen on knowing the contents of the new enactment i.e. “The protection of Women from Domestic Violence Act, 2005”. Our legislators have amble reasons behind their work, and they can simply argue that the constitution is backing them for their modern legislation. There might be some reason behind their arguments. Because the preamble of our constitution only states that “We, the people of India, having solemnly resolve to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure all its citizens: Justice, Liberty, Equality and Fraternity” and not concerned about the family setup, traditions, morality and culture of our country and solely concerned about citizens. They also advocate that the relevant Articles of their own choice encourage them to make protective legislation by ignoring Articles 14,15,19,20 &21 of our Constitution on the eminent works of our higher Judges. In our judicial setup we do not blame our reverent legislators when they think that our strong family setup is the hurdle for the prosperity of our country than the western counties where most of the mothers are of husband less, children are of not sure about paternity and wifeless fathers are of free from liability. Again a doubt is glimpses in my mind that the above said legislation is for saving at least the next generation of mankind (Male members) from the subjected miseries of their fathers and brothers due to the existing artistic works of many protective legislation and derivate rulings of Judiciary on that subject. Out sides may make a fun that the Indian legislator is notorious for creating ambiguous enactments, but I can’t as a subject of India and also catching my fishes from the ambiguities as an advocate. Here I am not giving emphasis to the protective Welfare legislations like Section 125 of Cr.P.C, Sections 498A, 354 and 509 of IPC, Exclusion provisions of women in execution proceedings under Civil Procedure Code, Dowry Prohibition Act, Provisions of Hindu adoption and Maintenance Act, Muslim Women’s protection on Divorce Act, Women’s Commission Act, Family Court Act, The Dissolution of Muslim Marriage Act, The Divorce Act etc. and different and detached judgments of our Courts and Quasi Judicial Forums on the same provisions.
Here let us discuss the various provisions of the special enactment of said Domestic Violence Act, 2005. Section 3 of the Act gives definition to the term domestic violence. As per the definition mental or physical harassment or harm, omission, commission or conduct of the respondent i.e. male member of the family not only against the aggrieved female member but also against the persons of her choice as she interested is constitute an offence under the Act. It also includes causing physical abuse, sexual abuse, and economic abuse, verbal and emotional abuse. Economic abuse includes prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship. More over there is an explanation to the act, Domestic Violence that the overall facts and circumstances of the case shall be a guiding factor to constitute the offence. There also our legislators avoided the relevance of our custom, morality and tradition for the benefit of the judiciary. Whatever be our custom, morality or family setup, all acts or omissions not forbidden by other enactments can be treated as legal and permissible as far as an alleged aggrieved is concerned, since the legislation lacking a prescribed conduct, nature, relationship, psychological aspects and behaviour from the part of complainant or aggrieved under the Act.
In the Act ‘Domestic Relationship’ is defined as a relationship between two persons who live or have, at any point of time, lived together in a shared house hold, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family. As per the other enactments of our country like Se.125 of Cr.P.C, Hindu Adoption and Maintenance Act etc. the beloved legislators dared to make liabilities and obligations to Husband, Father and grownup Son in family affairs. But the new and special enactment is aimed to male human-being as a whole unlike his relationship with the aggrieved as Husband, Father, Grand Father, Father in Law, Brother, Brother in law, Cousin, Son, Son in law, illegitimate partner etc.
As per se.18 of the new enactment the alleged aggrieved can obtain a protection order from the magistrate restrain the respondent from alienating property not only of his joint property with the aggrieved but also of his own property, restrain the respondent to make any communication with the aggrieved, restrain to entering the place of employment of the aggrieved etc. And as per se.19 of the Act the aggrieved has the right obtain an order to evict the respondent from the shared household even though he has a legal or equitable interest over the subject matter, restrain the entry of the respondent or his relatives to the shared house hold, restrain the respondent from renouncing or transfer his right over the house hold to a third person etc. under the label of Residence Order. But the proviso to the section disable the aggrieved to evict an immoral occupant to the house hold like mistress or concubine who has a domestic relationship with a male member of the family in the nature of marriage. Under se.20 of the enactment she can obtain monetary reliefs from the respondent as in the nature of Loss of earnings, Medical expenses, Damage, Maintenance etc. irrespective of her status or her relationship with the respondent. Se.23 of Act give a right to get an interim order as in the nature of above said sections of 18, 19, 20 etc. even without hearing the respondent. In any way an Order is happened to pass against the respondent with or without hearing the respondent, the sole testimony of the alleged aggrieved before the court that the respondent violated the court order would constitute a cognizable and non-boilable offence against the respondent under Se.32 of the Act, and he may be awarded One year imprisonment or fine of Rs.25, 000/- or with both under Se.31 of the Act.
The new enactment is the epic or ‘Indian Magna Carta’ declaring the rights, liberty and superiority of the Indian women over the male creatures and their properties. Women need not worry about their future since she has or has been in a domestic relationship even at any point of time with a male member of a family as envisaged in the enactment. Wife, Daughter, Daughter in law, Sister, sister in law, Mother and Mother in law whatever be their relation ship with the earning male member of the family need not worry about their food, accommodation, maintenance and also about their indecent behaviour or conduct in the family or towards such male member, and no one dared to score or control them. Father or Brother or Husband is helpless to score or punish her on smoking, drinking, and leading flirt and wandering life. She has every liberty to avoid her duties to the family as per the ancient concept prevailed just before the new enactment. In case house hold is owned by a Male member, he cannot deny the residence of any interested person with a female member otherwise which may be interpret sexual abuse or verbal and emotional abuse under the new enactment. Insult to or questioning of an interested person is also an insult and offence against the female. Right of a concubine or mistress is also established under the enactment. An intended female can restrain male members of her family from entering in to her work place or enquiring about her activities therein, not withstanding it as a public office or private office. She can very well obstruct even the transfer of the self acquired property of a male member of the family and use the same as her own. In the immediate future she would make a claim of title over the children i.e. the next generation would be known along with the name of his or her mother and Matriarchy would be her final goal.
As intended by our learned legislators the male genus never tries to make a liability up on them in their present or future. And in consequence, a father keep away from marriage institution and thereby avoid legal paternity over his children, a brother never accommodate his destitute sister and her children or even his mother, no one dare to make any financial help to others related through a female member of the family, paternity and husband ship might be a fiction, and he would be care to avoid relatives from the place of his abode. For escaping from the laities and burden he pave the way for the collapse of the family setup at the very beginning of his tender age. Blood ship and affinity, brother hood and sister hood are also become fiction and complete collapse of Indian family system would be earned by the new legislation. The eminent legislators may not be blamed when they aware of the basic nature of the women jealousy and envy, and expect the collapse of the family in case two female happened to abode in a house hold.
As per the Marxian principle withering away of the state is final result of communism, and socialism is the means to that end. India a socialist state can afford the Modern Communism offered by our eminent legislators. The final goal of withering away of the family through Domestic Violence and prosperity of the country would be attained by means of the new legislation on the backing of the existing judicial set up. The profounder of the enactment is to be praised by the people of India; the legislators behind the enactment are to be treated as the Gods of “Blood Less Revolution, 2005 of India”. In future the Indian Legislators would be a model to other developing or third world countries for immediate progress and prosperity.
Wailing of the higher judges about the increasing number of pending cases before courts is always echoing in our judicial system. They are always busy for reducing the pending cases and have no time to think about the unconstitutionalities from the part of legislature and executive. Our eminent legislators may not be blamed when they think that the increasing of the work load is the only remedy to reduce judicial activism in the country by avoiding the friction between the compartments of the state. For such end our conning legislators may periodically put a prey as a new enactment before the judiciary and our judges would be busy with happy for a term to make various and detached rulings in their own names. And we the people of India praise their glory and wisdom. When the judiciary happen to deal the matter in a deductive manner of filing fresh cases in the subject or deduct the number of pending cases, a fresh prey would be replaced before them. Best example is the enactment or incorporation of Sec.138 to the Negotiable Instrument Act in the past decade and the said Domestic violence Act in the present decade. Here the legislation is for judiciary and judiciary is for legislation. Again I praise our beloved and reverent legislators on behalf of the whole world for their eminent works.
Ettumanoor,
14.11.2006. T.G.PRAVEEN
ADVOCATE
Pardon to my ignorance, I have a doubt whether the legislation is for judiciary and the judiciary is for legislators. My doubt is reasonably arisen on knowing the contents of the new enactment i.e. “The protection of Women from Domestic Violence Act, 2005”. Our legislators have amble reasons behind their work, and they can simply argue that the constitution is backing them for their modern legislation. There might be some reason behind their arguments. Because the preamble of our constitution only states that “We, the people of India, having solemnly resolve to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure all its citizens: Justice, Liberty, Equality and Fraternity” and not concerned about the family setup, traditions, morality and culture of our country and solely concerned about citizens. They also advocate that the relevant Articles of their own choice encourage them to make protective legislation by ignoring Articles 14,15,19,20 &21 of our Constitution on the eminent works of our higher Judges. In our judicial setup we do not blame our reverent legislators when they think that our strong family setup is the hurdle for the prosperity of our country than the western counties where most of the mothers are of husband less, children are of not sure about paternity and wifeless fathers are of free from liability. Again a doubt is glimpses in my mind that the above said legislation is for saving at least the next generation of mankind (Male members) from the subjected miseries of their fathers and brothers due to the existing artistic works of many protective legislation and derivate rulings of Judiciary on that subject. Out sides may make a fun that the Indian legislator is notorious for creating ambiguous enactments, but I can’t as a subject of India and also catching my fishes from the ambiguities as an advocate. Here I am not giving emphasis to the protective Welfare legislations like Section 125 of Cr.P.C, Sections 498A, 354 and 509 of IPC, Exclusion provisions of women in execution proceedings under Civil Procedure Code, Dowry Prohibition Act, Provisions of Hindu adoption and Maintenance Act, Muslim Women’s protection on Divorce Act, Women’s Commission Act, Family Court Act, The Dissolution of Muslim Marriage Act, The Divorce Act etc. and different and detached judgments of our Courts and Quasi Judicial Forums on the same provisions.
Here let us discuss the various provisions of the special enactment of said Domestic Violence Act, 2005. Section 3 of the Act gives definition to the term domestic violence. As per the definition mental or physical harassment or harm, omission, commission or conduct of the respondent i.e. male member of the family not only against the aggrieved female member but also against the persons of her choice as she interested is constitute an offence under the Act. It also includes causing physical abuse, sexual abuse, and economic abuse, verbal and emotional abuse. Economic abuse includes prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship. More over there is an explanation to the act, Domestic Violence that the overall facts and circumstances of the case shall be a guiding factor to constitute the offence. There also our legislators avoided the relevance of our custom, morality and tradition for the benefit of the judiciary. Whatever be our custom, morality or family setup, all acts or omissions not forbidden by other enactments can be treated as legal and permissible as far as an alleged aggrieved is concerned, since the legislation lacking a prescribed conduct, nature, relationship, psychological aspects and behaviour from the part of complainant or aggrieved under the Act.
In the Act ‘Domestic Relationship’ is defined as a relationship between two persons who live or have, at any point of time, lived together in a shared house hold, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family. As per the other enactments of our country like Se.125 of Cr.P.C, Hindu Adoption and Maintenance Act etc. the beloved legislators dared to make liabilities and obligations to Husband, Father and grownup Son in family affairs. But the new and special enactment is aimed to male human-being as a whole unlike his relationship with the aggrieved as Husband, Father, Grand Father, Father in Law, Brother, Brother in law, Cousin, Son, Son in law, illegitimate partner etc.
As per se.18 of the new enactment the alleged aggrieved can obtain a protection order from the magistrate restrain the respondent from alienating property not only of his joint property with the aggrieved but also of his own property, restrain the respondent to make any communication with the aggrieved, restrain to entering the place of employment of the aggrieved etc. And as per se.19 of the Act the aggrieved has the right obtain an order to evict the respondent from the shared household even though he has a legal or equitable interest over the subject matter, restrain the entry of the respondent or his relatives to the shared house hold, restrain the respondent from renouncing or transfer his right over the house hold to a third person etc. under the label of Residence Order. But the proviso to the section disable the aggrieved to evict an immoral occupant to the house hold like mistress or concubine who has a domestic relationship with a male member of the family in the nature of marriage. Under se.20 of the enactment she can obtain monetary reliefs from the respondent as in the nature of Loss of earnings, Medical expenses, Damage, Maintenance etc. irrespective of her status or her relationship with the respondent. Se.23 of Act give a right to get an interim order as in the nature of above said sections of 18, 19, 20 etc. even without hearing the respondent. In any way an Order is happened to pass against the respondent with or without hearing the respondent, the sole testimony of the alleged aggrieved before the court that the respondent violated the court order would constitute a cognizable and non-boilable offence against the respondent under Se.32 of the Act, and he may be awarded One year imprisonment or fine of Rs.25, 000/- or with both under Se.31 of the Act.
The new enactment is the epic or ‘Indian Magna Carta’ declaring the rights, liberty and superiority of the Indian women over the male creatures and their properties. Women need not worry about their future since she has or has been in a domestic relationship even at any point of time with a male member of a family as envisaged in the enactment. Wife, Daughter, Daughter in law, Sister, sister in law, Mother and Mother in law whatever be their relation ship with the earning male member of the family need not worry about their food, accommodation, maintenance and also about their indecent behaviour or conduct in the family or towards such male member, and no one dared to score or control them. Father or Brother or Husband is helpless to score or punish her on smoking, drinking, and leading flirt and wandering life. She has every liberty to avoid her duties to the family as per the ancient concept prevailed just before the new enactment. In case house hold is owned by a Male member, he cannot deny the residence of any interested person with a female member otherwise which may be interpret sexual abuse or verbal and emotional abuse under the new enactment. Insult to or questioning of an interested person is also an insult and offence against the female. Right of a concubine or mistress is also established under the enactment. An intended female can restrain male members of her family from entering in to her work place or enquiring about her activities therein, not withstanding it as a public office or private office. She can very well obstruct even the transfer of the self acquired property of a male member of the family and use the same as her own. In the immediate future she would make a claim of title over the children i.e. the next generation would be known along with the name of his or her mother and Matriarchy would be her final goal.
As intended by our learned legislators the male genus never tries to make a liability up on them in their present or future. And in consequence, a father keep away from marriage institution and thereby avoid legal paternity over his children, a brother never accommodate his destitute sister and her children or even his mother, no one dare to make any financial help to others related through a female member of the family, paternity and husband ship might be a fiction, and he would be care to avoid relatives from the place of his abode. For escaping from the laities and burden he pave the way for the collapse of the family setup at the very beginning of his tender age. Blood ship and affinity, brother hood and sister hood are also become fiction and complete collapse of Indian family system would be earned by the new legislation. The eminent legislators may not be blamed when they aware of the basic nature of the women jealousy and envy, and expect the collapse of the family in case two female happened to abode in a house hold.
As per the Marxian principle withering away of the state is final result of communism, and socialism is the means to that end. India a socialist state can afford the Modern Communism offered by our eminent legislators. The final goal of withering away of the family through Domestic Violence and prosperity of the country would be attained by means of the new legislation on the backing of the existing judicial set up. The profounder of the enactment is to be praised by the people of India; the legislators behind the enactment are to be treated as the Gods of “Blood Less Revolution, 2005 of India”. In future the Indian Legislators would be a model to other developing or third world countries for immediate progress and prosperity.
Wailing of the higher judges about the increasing number of pending cases before courts is always echoing in our judicial system. They are always busy for reducing the pending cases and have no time to think about the unconstitutionalities from the part of legislature and executive. Our eminent legislators may not be blamed when they think that the increasing of the work load is the only remedy to reduce judicial activism in the country by avoiding the friction between the compartments of the state. For such end our conning legislators may periodically put a prey as a new enactment before the judiciary and our judges would be busy with happy for a term to make various and detached rulings in their own names. And we the people of India praise their glory and wisdom. When the judiciary happen to deal the matter in a deductive manner of filing fresh cases in the subject or deduct the number of pending cases, a fresh prey would be replaced before them. Best example is the enactment or incorporation of Sec.138 to the Negotiable Instrument Act in the past decade and the said Domestic violence Act in the present decade. Here the legislation is for judiciary and judiciary is for legislation. Again I praise our beloved and reverent legislators on behalf of the whole world for their eminent works.
Ettumanoor,
14.11.2006. T.G.PRAVEEN
ADVOCATE
Wednesday, October 24, 2007
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