Thursday, October 08, 2009

Domestic Violence Part 2 - Facts and Measures


DISCLAIMER: THIS POST SPEAKS ABOUT ONE OF THE MOST SENSITIVE TOPICS – DOMESTIC VIOLENCE. I INTEND TO COVER ALL THE IMPORTANT ASPECTS RELATED TO THIS TOPIC WHICH INCLUDE LEGAL ASPECTS, JUDICIAL ASPECTS, ADMINISTRATIVE ASPECTS AND FACTS. THE VIEWS POSTED HERE ARE PURELY MINE. I REQUEST YOU ALL NOT TO GENERALIZE THEM AND ACT PURELY BASED ON THEM. THIS POST WILL BE DIVIDED IN TWO OR MORE PARTS. IF ANY OF YOU HAS ANY DIFFICULTY IN UNDERSTANDING ANY TERM, THEN PLEASE LEAVE YOUR QUERY IN THE FORM OF COMMENT AND I WILL ANSWER IT TO MY BEST KNOWLEDGE.


Applicability of the Law – The Process

1. The procedure for filing the complaint against the accused is that the victim can go to the police station nearby and file the complaint.

2. This offense is a non-bailable offense. To get the bail, the accused has to be presented in the court in front of the judge.

3. This offense is a non-compoundable offense. That means the complaint once filed cannot be withdrawn by the complainant or her relatives.

4. It is a cognizable offense. That means the complaint has be registered and investigated before making any arrests.

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My previous post and the points above spoke about the legal aspects of the Section 498 – A and Domestic Violence Act. My intentions for this post are not only to give information about how law works and protects you, but to give you a general guideline on how few precautionary measures can help you to protect your and your family’s interest when any kind of a case is filed.


Applicability of the Law – The Practice


In case of complaint filed under Section 498-A and Domestic Violence Act, the usual practice that has been followed is:

1. Whether to lodge the complaint or not, it depends on which party is stronger – the accused or the complainant.

2. Even though it is a cognizable offense, in most of the cases the arrests are made immediately after the complaint is lodged. There is no investigation made before arresting the accused party/ies.

3. Stronger the lawyer, stronger the case. Here I am not talking about a knowledgeable lawyer, but i am talking about influential lawyer. It is easy to know the law. A fresh graduate fighting his/her first case can also help you out in these matters, but when there is a question of getting a bail at the earliest, or making sure that the case gets sorted out as a settlement between two parties, you need a good and influential lawyer. That time it does not matter whether you are right or wrong. All that matters is who is your lawyer.

*****

My previous post got all different reactions from the readers. Few of them found the law very biased towards women to such an extent that women can take undue advantage of it. A few thought that each and every woman must know what protection law gives them, while a few were more curious to know about the actual practice as they rightly said that the law in the books and the law put in practice are two different things. As I mentioned there, and I am repeating here, I am not going to give a biased opinion that can protect or frame anybody, but the points mentioned below are the measures you can take when framed or before being framed:

1. Enter into a Prenuptial Agreement (Prenup) before marriage. Prenup is a declaration saying that neither of the parties has demanded or given any dowry. The jewellery, articles, clothes, vehicles etc. all are given to the girl as a gift by her parents and/or relatives. (If any of you require a prenup copy, then please mention that as a separate comment along with your e-mail id. I will send it to you and not publish the comment containing your id.)

2. Get the prenup duly signed and executed by the parties. Further, two witnesses each party must sign the Prenup as well.

3. Make a list of the articles brought in by the girl at the time of the wedding. The girl has a de facto (actual) right on Stridhan. Stridhan means and includes property inherited by the woman from her family or husband’s family; property received by her under a compromise, adverse possession or in lieu of maintenance; property obtained in partition; and property bought using proceeds from stridhan. However, gifts to the husband by the woman or her relatives will not be part of her stridhan.

4. Evidence plays a very crucial role when a complaint is filed. It can convict the innocent and evict the guilty. Thus it is highly recommended to keep all the documents viz. Marriage certificate, bank statements, Prenup, the list of the gifts received at the time of the wedding, wedding pictures, bills etc. Safely, copy them all and get the marriage certificate notarized so that both the parties have the valid copy of the same.

5. When a woman is physically abused, she should go to the doctor immediately, get the treatment and certificate mentioning the specific reason for the injuries from him. Here, it is highly recommended to go to a government hospital for the treatment as the certificate issued by the government hospital has a stronger legal stand. This point can be raised by a man who has been framed wrongfully by a woman when the case comes in the court. It may or may not help, but can be useful.

6. When a physical or verbal abuse is happening, start screaming and alert your neighbours. This can help you to get witnesses when you do not have sufficient evidences to prove your point. Further, it may help to avoid the damage being done further.

7. The moment you get the idea that there may arise some problem regarding any general or a specific issue; consult a lawyer before hand rather than waiting for the problem to take over first. This will help you maintain peace of mind and nerve when in trouble.

8. If possible, install the recording, itemized bills and caller id facilities on your landlines and mobiles.

****


PS: I have covered almost all the aspects and measures I could think of. If I have missed out on something, then i will surely share that with you in future.

PPS: To read the first part of this post, please click here

24 comments:

  1. Dear Blogger,

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    ReplyDelete
  2. That was really very informative and helpful for both the parties!!
    never knew that it was a non-compoundable offense. I think the most important point that i came to know from this post was about the Prenuptial Agreement.
    It was very well written and easy to understand. U really handled the topic well. M sure u r a very good lawyer. These are very important pieces of information that both the both n the girl should know before marriage!!!

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  3. This is very informative.. i really wonder about the awareness of the same to us..

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  4. Awesome effort girl.. this is gonna help so many women.. there are so many people who have no idea about what the law has in store for them.. very thoughtful of you to come up with this post :)

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  5. Very Very informative blog. Everyone who is getting married should follow your advice. But is it practical in India nowadays? Love marriage couples think that their love is more stronger than any written document. Arranged marriage parents have ego to put things in writing.

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  6. @ NR, thank you for your comments and compliments...good lawyer? wow...you made my day..:)
    coming back to the post, prenup is a very good option to reduce the number of false cases to be filed. and nice to know that i could this time write something on a legal topic which was easy to understand...thank you again.

    @ Swatantra, thank you...and awareness? well we all can start this with ourselves..

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  7. Thanks for this post. Very very informative. An influential lawyer - aptly said. I guess an influential lawyer is required for almost any criminal case. How the law is put on paper and how it is practiced....Very different

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  8. evanescentthoughts, thanks, I am glad you found it helpful..

    @ SG, you are right...here people are yet to understand the importance of putting these things in writing...but I do hope that things change soon...prenups and declaration of articles brought in by a girl will help many..

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  9. Neha, first accept my bows to you!! I think it must have consumed a great time for you to compile these things!
    Kudos to you.. So much of information!
    That too reading this in a lawyers point of view is awesome

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  10. @ insignia, thanks gal...to survive in the law field is indeed very difficult...thus, one has to make oneself influential...

    @ Shruti, god, your comment made me speechless...thank you indeed for appreciating my efforts...I am honoured...thanks again..

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  11. Neha, the previous post along with this one is simply great. Lots of information.
    I have heard that some women have actually been taking advantage of the law and putting their husbands and ex-in lwas into a lot of trouble. Which is such a shame because by and large it is women who are the victims f domestic violence. However, a man can also be victimed by being falsely framed.

    Enjoyed reading both the posts. You are one awesome lawyer for sure:)

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  12. This post is pretty informative.

    It will be very helpful if you write something about cyber laws which is related to blogging.

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  13. @ Panorama, I have also seen many females taking advantage of this law...there was a case, my friend's sis in law is a gynecologist, she one night went to a hospital, got her baby aborted and next day filed a complaint against her husband and in laws that they tortured her, her husband pushed her ans tht led to her miscarriage...the case is still going on...

    thank you very much for acknowledging me as an awesome lawyer...

    @ Asit Dhal, we have written an article on cyber crimes...you will find it at

    http://sglegalsolutions.com/pdf/Article%20on%20Cyber%20Laws.pdf

    ReplyDelete
  14. Neha,very good.Your post is very informative.Such posts must be flagged as most important.My best compliments.
    Also,you were very brave to say that one needs an Influential lawyer.Well said.

    ReplyDelete
  15. This comment has been removed by the author.

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  16. Great work Neha. Appreciate you for putting up socially relevant information. Thanks.

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  17. at least u sympathised with poor me..u r a gr8 friend neha..cheers

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  18. wow! you are doing a great job by giving informative facts on this blog :)
    this blog is on my radar

    ReplyDelete
  19. @ BK Chowla, thank you sir...this comment from you is indeed a very great honour for me...thank you for your encouragement...

    @ Varsha Shrote, thank you very much for your overwhelming comments..I am glad that you found this post easy to understand...all my efforts have paid off...

    ReplyDelete
  20. @ JJ, thanks a lot buddy...

    @ R. Ramesh, yes buddy, friends forever :)))

    @ Sorcerer, welcome here...thank you for your comments...I am glad you found the post informative..

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  21. Hey Neha...thanks for this post! well i can say that my frnd as i mentioned earlier, was a victim and he got into a prenuptial agreement, so he managed to escape, but the gals family did not spare him..most of the gents from the girls family were from Police force and they all filed 15 cases on him, for which he was nt even aware of some...as he was in a different country...he is stil trying to win the divorce case... I agree with yur points...and though some mite think these are not useful as divorce is somthing not gonna happen..i'd ask those ppl to give a second thought and have a gooood look!! awesome post and awaiting yur next post as usual!

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  22. It seems to me that all your life you've been doing nothing but study law. Phew! One hell of a hard worker you are. :) Feels good to know that there are some people who love what they do. Though you are a lawyer by profession, some amount of hard work must have definitely gone in compiling so many things into a small post. Kudos for that! :)
    And about the post, it was very informative. Didn't know about so many things.
    Someday when I want to write a story about law and lawyers, I can consult you, right? :)
    (I know the answer is 'yes.' So thank you very much) :) :) :)

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  23. Take a bow dear .. take a bow!! well written and just perfect information! Its like a All-you-need-to-know thing up there! .. Useful for both the sides of people. Looks like theres a lot of work gone into this :) ... love to see you sweat out for things yu love to do. Good one ... thanks for the awareness you are trying to spread :) .. Prenup's are something that can solve the issue here - though they are not that popular in INDIA. This something we can look at.

    Awesome information. Kudos !

    P.S: Now that i've fulfilled my promise, i hope u aint gonna try and "block" me from ur posts!

    P.P.S: Can you be my attorney!! Pleaszzzzz!!

    cheers
    rammy

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  24. Extremely well written and very lucid too ! It gives a firm perspective on a few elements !

    Thanks for the post !

    ReplyDelete