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
Subscribe to:
Posts (Atom)
