498a Frequently Asked Questions - FAQ

Extramarital relations and their effects

2012-01-16T21:55:00.000-08:00

MORALITY WINS OVER INFELICITOUS LEGALITY \'Extramarital Relations of a Mother Bad for Children\' - Published on web at: 2012-01-16 16:22:35 +05:30. Section: Cover Story section. Cover Story By: SYYED MANSOOR AGHA comments on a recent verdict that establishes the importance of morality, and asserts that we Indians need to safeguard our cultural and religious values.

In a welcome judgment a Delhi court has spelled out importance of morality over prevailing legal norms, and passed a decree on ethical grounds in a case of custody of minor children.

Additional District Judge (ADJ) Reetesh Singh of Karkardooma Courts underlined the importance of social and moral values against legal pre-eminence of a mother, and asked the woman to bequeath custody of her two minor children to their father. The woman has deserted the complainant to embrace another person, with whom she had established extramarital relationship while she was his wife. As a rule Indian courts grant custody of minor children to the mother in case of separation, divorce or death of father.

The court observed, “Imparting social values and ethics is an extremely important part of a parent’s duties. The first and most crucial place of learning for children is their home, and their most important tutors are their parents. An adult is free to take any decision; however, when adults are also parents, decisions taken by them regarding their own life also have a bearing on their children.” It further observed, “Extra-marital relationship of mother is not in the interest of the children.”

This is a strongly sane voice and we need to endorse with all force at our hand.

The woman, who had tied the knot with a humble villager of District Amritsar in 2002, deserted him after seven years and started living with a person with whom she had allegedly been in illicit relationship. Later the couple got divorce degree and the woman “married” her friend in June last. She has two children of seven and three and now has settled down in a slum cluster in the Capital.

Issuing the order, the court said, “Choosing to indulge in an extra-marital affair and exposing her children to it would have left a mark on the children’s minds. She indulged in an affair with another man during the time she was married with the petitioner. In the opinion of this court, children’s father would be in a better position to impart social and ethical values to the minor children rather than their mother.”

So her ethical bankruptcy left the woman without her children, however the court allowed her to visit them at their father’s house periodically.

HEALTHY DEVIATION

The judgement is a healthy deviation from the tradition of ignoring moral dimensions while deliberating such cases and banking on flimsy grounds of liberty, equality and inflated obsession to fundamental rights. The verdict on rights of a woman in “live-in relationship” and de-legalising Section 377 of IPC may be cited for example.

Section 377 of IPC reads as under: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment, and shall also be liable to fine.”

A Delhi court, ignoring pleas on ethical and moral grounds, struck down the provision held that homosexual intercourse between consenting adults is covered under “the fundamental right to life and liberty and the right to equality” as guaranteed by the Constitution of India. Protests against the ruling however bore no fruit, and perverted thinking prevailed on lawmakers. Law Commission of India, Union Health Ministry, NHRC and the Planning Commission, either implicitly or expressly, came out in support of de-criminalising homosexuality, and pushed for social acceptance for lesbian, gay, bisexual, and transgendered people.

“World over, people are accepting homosexuality” was the argument of Mr. S. Ramadoss, the then Union Health Minister. Blindly following the world is certainly not a wise choice. Judging what is good or bad for society should have some sane parameters. How can sexual anarchy be endorsed while we are seeing the western world destroying its family life and peace of life? Should we allow conversion of our society and our successive generations into sex hungry beasts?

EXTRAMARITAL SEX IN INDIA

It is true that the Indian society has been witness to both forms of polygamy (polygyny – relations with more than one woman, and in some cases polyandry – sex with more than one man) for long. The practice still persists in some sections. However extramarital sex never had moral acceptability. Now in 5-star cultures immorality of changing partners is becoming a norm of “socialising” and gays come out in processions.

An Indian sexologist, Dr Himanshu Saxena believes males by “nature” are polygamous. But what about women! A study suggests in Europe, a modern woman frequently changes her partner and may have “experienced” with up to a dozen. Dr. Saxena simply put it as, “The spouses may not click, and look for options elsewhere.” How simple it seems to change a partner, as it is changing a dish on the dining table?

BREEDING HUBS OF SEXUAL AVIDITY

Citing other reasons, Dr. Saxena rightly noted, “A liberal (sexually explicit) media and generally more openness (in interaction) with the opposite sex, such as colleagues, bring people closer emotionally and sexually.” This is where the Qur’ān strikes and ordains to its believers: “Approach not adultery, for it is a shameful deed and an evil, opening the road to other evils.” (17:23)

Here lies the importance of moderate dress for women, covering her person to save from greedy gazers. The Qur’ān says:

“O Prophet! Tell thy wives and thy daughters and the women of the believers to draw their cloaks close around them, that will be better, so that they may be recognised and not annoyed. Allah is ever forgiving, merciful....(33:59)

“And say to the believing women that they cast down their looks and guard their private parts and do not display their ornaments except what appears thereof, and let them wear their head-coverings over their bosoms,...; and let them not strike their feet so that what they hide of their ornaments may be known.” (24:31)

ALL RELIGIONS ORDAIN AGAINST ADULTERY

Barring a few sects of Hindus, no religion allows extramarital sex. Bhagwad Geeta says:

When a family declines, ancient traditions are destroyed. With them are lost the spiritual foundations for life, and the family loses its sense of unity. Where there is no sense of unity, the women of the family become corrupt; and with the corruption of its women, society is plunged into chaos. Social chaos is hell for the family and for those who have destroyed the family as well. (1.40-42)

Here we note that family system is plunging into the chaos, and the Indian society, which made so much protest against the proposed ban on a translation of Bhagwad Geeta in Russia, is itself drifting away from the ‘Holy Text’ and so drifting down the hill. So far as the text is concerned, Christianity and Judaism have also strictly sanctioned against straying in sex.

But who cares the teachings. I quote:

“God gave them up to dishonourable passions. Their women exchanged natural relations for unnatural, and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error.” (Christianity; Romans 1.26-27)

How this evil is being seen as a “natural” behaviour is evident from the arguments advanced in favour of infidelity. Recently a prominent woman psychologist of France, Maryse Vaillant advised women in her book: “Men, Love, Fidelity” has made headlines. She says, “Wives should welcome their husbands\' extramarital affairs as a sign of a healthy marriage.” She argues, “French men should stop being castigated for being womanisers and that keeping a mistress can actually improve a marriage.” She shamelessly declares her aim is to “rehabilitate infidelity”.

A study claims that monogamy has become unbelievable and “interchangeable mistresses” has become rule of the day in Europe, as Sylvie Brunel, ex-wife of France’s minister, Eric Besson has underlined in her book, Guerrilla Handbook for Women.

The solution being argued is that, once French women accept that the “fidelity is not natural but cultural”, and that infidelity is essential to the “psychic functioning” of certain men who are still very much in love, it can be “very liberating” for women, she writes.

DIVERSITY OF SEXUAL BEHAVIOUR

What is “natural” sexual behaviour? Answer is: ‘Follow the animals like dogs that do not live in pairs, and get satisfy your urge without discriminating the object whether man, any woman (mother, sister or else) even animals.’ Recently the US Senate approved of a bill by 93 against 7 votes that will make legal sex between human beings and animals, while also legalising sodomy. Gone are the days of Article 125 of the Uniform Code of Military Justice (UCMJ) that states any human being who engages in “unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy.” Same is the effect of de-legalising Section 377 of IPC in India.

ALARMING SITUATION

A study (Yahoo Answers) suggests that the number of sex outside wedlock is increasing alarmingly in our country also. In Kerala it is the highest. Tamil Nadu, Maharashtra, the Punjab, Haryana, West Bengal, Rajasthan and Gujarat are also on red list. Big and metro cities have more openness and Mumbai tops among all. Interestedly, votaries endorsed that Hindus are at the top and Muslims are at the bottom may be because of free mixing cultural gap.

Indian society certainly needs to safeguard their cultural and religious values and not follow the world as argued by Mr. Ramadoss. In this scenario, impugned judgment is a ray of light in the darkness that has been prevailing.

[Syyedagha@hotmail.com]

498a Arrest - New Amendment Interpretation/Directions by UP HC

2011-12-15T03:58:00.000-08:00

Please read the below directions. These are directions to the Police and are like advisories from the Home Ministry. The court has threatened them with contempt and misconduct charges. The Police can still choose to avoid and act selectively as per their own discretion in select 'rich and high profile cases'. It is not statute law. At best it is another partial eye wash by the judiciary, to mitigate sufferings of many poor families - not the middle and upper class, at this draconian law. Please do not be misled.

It applies to people of UP state only. I just hope that the Hon'ble Justices of AP take notice of this and issue similar directions with modifications. If somebody can send regd post to Chief Justice of AP - it might work. Or to Andhra Pradesh Justices A.Gopal Reddy, Raja Elango, T GopalKrishna Reddy or whoever has criminal portfolio.

A couple of years back Justice thomas of the supreme court issued arrest guidelines but their are several loopholes until this draconian law is amended and made proper statute law.

HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial Disputes
Respondent:- State Of U.P. & Others
Petitioner Counsel :- P.N. Gangwar
Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon'ble Amar Saran,J.

Hon'ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the intervenor 'Sahyog,' Sri D.R. Chaudhary, learned Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were heard at length.
An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011. Another affidavit was also filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An application was also moved by the intervenor 'Sahyog.'
This Court appreciates the positive contributions and suggestions of all the aforesaid advocates and other State officials and that this pro bono litigation is being taken up in the right non-adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order to save families, and children and indeed the institution of marriage, an effort be first made for reconciling matrimonial disputes by mediation before steps can be taken for prosecuting offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of their noble profession and their noble tradition and of their responsibility to ensure that the social fibre of family life is preserved by desisting from over-implicating all in-laws and their relations as accused persons in 498-A IPC reports, and from filing exaggerated reports. They are also to make an endeavour to bring about amicable settlements to this essentially human problem. It has also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique motives by unscrupulous litigants so that a "new legal terrorism" is not unleashed, and that the well-intentioned provision is not misused.

In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not only the husband. In para 5 of the law report it has been observed: "....In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."

Specifically as a result of the interaction and suggestions which emerged after a dialogue with the Advocates and officials, this Court requires to formulate its opinion on the following points:

1. Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family members as specified under section 198A Cr.P.C approaches the police station giving information that an offence under section 498A IPC or allied provisions such as under section � D.P. Act or under section 406 I.P.C have been committed by the husband or other in-laws and their relations.

2. Should the concerned police officers immediately proceed to arrest the husband and other family members of the husband whenever such an FIR is lodged.

3. Can a distinction be made between the cases where arrest is immediately necessary and other cases where arrest can be deferred and an attempt be first made for bringing about mediation between the parties.

4. What is the appropriate place where mediation should be conducted.

5. Should a time frame be laid down for concluding the mediation proceedings.

6. Who should be the members of the mediation cell in the district.

7. What is the procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is disclosed.

8. Is training of mediators desirable and who should conduct the training?

9. Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.

Discussions on the points requiring formulation by the Court:

1. Whether registration of an FIR is mandatory?

Section 154 of the Code of Criminal Procedure mandates that when any information regarding information of a cognizable offence is given orally to the officer in charge of the Police Station, he is required to reduce it in writing and to enter it into the general diary. The said provision gives no option to the concerned Police Officer to refuse to lodge the F.I.R. once information of a cognizable offence is given to the police officer.

In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992 Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides that whenever an information is given that a cognizable offence has been committed, the Police Officer cannot embark upon an inquiry to ascertain as to whether the information was reliable or genuine or refuse to register the case on that ground. The officer in charge of the Police Station is statutorily obliged to register the case and then to proceed with the investigation, if he even has reason to suspect the commission of an offence.

(2) Whether arrest of husband and family members mandatory once FIR is lodged .

It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the necessity of lodging an FIR when a cognizable offence only speaks of "information relating to the commission of a cognizable offence" given to an officer. No pre-condition, as pointed out above, is placed under this provision for first examining whether the information is credible or genuine. In contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to arrest without a warrant from a Magistrate requires the existence of a "reasonable complaint," or "credible information" or "reasonable suspicion" of the accused being involved in a cognizable offence as pre-conditions for effecting his arrest.

The two provisos to section 157 also speak of two exceptions when investigation (and consequent arrest) may not be necessary. These two situations are:

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. However in such situations the police officer is to mention in his report the reasons for not investigating the case. In the second case, where a police officer is of the opinion that there is no sufficient ground for investigating a matter, he is to also inform the informant of his decision.

The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or has not been medically examined, he may even desist or defer the investigation in such a case.

Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to from 1.11.2010. This sub-section provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years.

A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from 1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the police officer is of the opinion that the arrest is not required under the provisions of section 41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the police has all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest.

Now an offence under section 498A IPC is punishable with imprisonment only up to three years and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section 41 (A), where instead of straight away arresting the accused, it would be a better option at the initial stage for the police officer to require the said person to appear before him or before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person concerned before the police officer himself or to any specified place. Hence a notice can be given to the accused to appear before the mediation centre. This restraint on arrest, and placing of conditions or terms for arrest would also apply a fortiori to the accused family members of the husband of the aggrieved wife.

It may be pointed out that if the FIR is immediately registered that will placate the concerns of the aggrieved wife to some extent that action is being taken on her complaint, and it has not been put on the back burner.

(3) Whether distinction possible between cases necessitating immediate arrest, and cases where attempt for mediation should first be made.

Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the wife endangering her life or where the wife has been subjected to repeated violence or there are any other circumstances of exceptional cruelty against the wife, where future recurrence of violence or cruelty seems likely, or for preventing the husband and his accused family members from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the presence of the husband or his accused family members at the trial, or for effective investigation. In all other cases, we are of the opinion that an attempt should be first made for bringing about reconciliation between the parties by directing the complainant wife and her natal family members and the husband and other family members to appear before the Mediation Centre when the wife or other eligible relations under section 198-A Cr.P.C. approaches the police station for lodging the report.

The advantage of not immediately arresting the accused husband and his family members in a trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden matrimonial disputes, because of clash of egos between the wife and her natal family members and the husband and in-laws, the wife's side at the initial stage usually insists on effecting the arrests of the husband and other in-laws. Once the husband or his family members are arrested, and subsequently bailed out, little motivation remains for the parties to try and resolve their disputes by mediation. This may prove disadvantageous for the wife in the long run who may not have a source of independent livelihood for running her life in the future.

4. Appropriate place where mediation should be conducted.

The officials as well as the learned Government Advocate and other lawyers present unanimously recommended that the Mediation Cell should not be at the police station. The I.G. (Public Grievances) pointed out that the police officer before whom the report is lodged lack proper training for conducting mediations sessions. Also if the police officer refrains from arresting the accused persons pursuant to the wife's FIR, by attempting to mediate in the dispute between the parties, even if it is a case of no injury, and even where he is only acting in accordance with the general directions of the Court, questions about his integrity are unnecessarily raised.

Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation or Conciliation Centres have been established in all the District Courts. We, therefore, think that the mediation proceedings should be carried out in the said Mediation Centre.

5. Need for time frame for concluding the mediation proceedings.

The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be laid down for concluding the mediation proceedings as when an aggrieved wife approaches the police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in the mediation process, the delay could act as a shield to protect the accused from facing the penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as possible be served personally on the accused and the parties should be directed to appear before the Mediation Centre within a week or 10 days of the lodging of the report by the aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation proceedings should be concluded within two months of the first appearance of both the parties before the Mediation Centre.

6. Who should be the members of the mediation cell in the district?

The Mediation Cell in the district should be headed by the Secretary of the Legal Services Authority in the district, (at present, the Civil Judge, Senior Division has been made the Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority, other lawyers, who volunteer for giving free services before the Mediation centre, especially female lawyers should also be made members of the Mediation Cell. It is also desirable to have three or four social workers (especially female) in the Cell. A female police officer of the rank of Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell.

7. Procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is reported.

The report regarding commission of cognizable offence under section 498A IPC or other allied sections may be lodged at the concerned police station where the incident takes place or at the 'Mahila Thana' especially created in the district for investigation of such cases. The police officer concerned will get the aggrieved woman medically examined for injuries if the same are present. If the report has been lodged at some police station other than the Mahila Thana, the injury report and relevant police papers shall be forwarded to the Mahila Thana for investigation of the case, and in appropriate cases the investigating police officer at the Mahila Thana may refer the matter to the mediation centre in the Civil Court, and direct the complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The accused should as far as possible also be personally given notice to appear before the mediation centre on the date fixed. We would also like the presence of trained social workers (especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling the aggrieved woman and her family members for first trying to solve their dispute by mediation, when the case is registered at the mahila thana. The notice to the husband and other family members should mention that in cases the husband or the family members of the aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation Centre or fail to comply with any condition that may be imposed by the police officer or Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other in-laws should be directed to report before the police officer on a date two months after the date of first appearance before the Mediation Centre and inform the Police Officer about the progress in the mediation. The in-charge of the mediation proceeding may also direct the husband or other family members to appear before the Police Officer at an earlier date fixed in case mediation has failed or it has been successfully concluded and the parties concerned shall appear before the Police Officer on the said date. It would also be open to the complainant wife to inform the police officer about the progress (or lack of it) of the mediation process. The notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier date, and information is given by either party or the Mediation centre to the Police Officer, he may require the presence of the accused husband or his relations at an earlier date. If mediation has been successfully concluded, it will be open to the Police Officer to submit a final report in the matter. In cases, where it has not been successfully concluded and the Police Officer is of the view that arrest may not be necessary in a particular case, he may direct the accused persons to obtain bail from the Competent Court. In case, he is of the opinion that the arrest is necessitated at a subsequent stage, it will be open to the Police Officer to take such accused persons in custody. He should of course record his reason for making the said arrest as provided under section 41 (1) (b) (ii).

8. Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the learned Government Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the Allahabad High Court and the Government officials present, including the Secretary of the Legal Services Authority, that training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority (UPLSA) stated that the centre and authority are prepared to impart training to the mediators. We welcome this offer and direct that there should be co-ordination between the AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to create a cadre of trainers for mediation, their services may also be utilised for training mediators in the districts.

We think training is necessary because the responses to our queries from the subordinate district courts reveal the poor success rate in the cases referred by the High Court or where the concerned subordinate court has itself initiated the process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad High Court, which has independent trained mediators (usually lawyers) is much higher. The first requirement for successful mediation is the patience on the part of the mediator, and his willingness to give sufficient time to the contesting parties and especially to the wife to express her bottled up grievances. Thereafter, in a disinterested manner, the mediator should encourage the parties to come up with solutions, giving useful suggestions for bringing about reconciliation, as the mediator cannot impose his solution on the parties.

The guidelines hereinabove have been spelt out by the Court because of the specific request of the officials and lawyers present to spell out the terms of the same, as guidance for the State government (esp. the home department), the Legal Services Authority and the police for issuing appropriate circulars or government orders.

(9) Should offences under section 498-A IPC be made compoundable?

We have received considerable feedback from subordinate judicial authorities that unless the offence under section 498-A IPC is made compoundable, much benefit cannot be derived by trying to bring about mediation between the parties. A dilemma then arises before the concerned Court, (which cannot close the trial because the spouses have compromised their dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse and in-laws either by agreeing to stay with them or to part amicably, usually after receiving some compensation.

Even if she is no more interested in repeatedly visiting the court for prosecuting the accused, in the absence of provisions for compounding the offence, she has willy nilly to perjure by making a false statement that her initial report was untrue or lodged under influence of X or Y. If on the basis of this statement the trial Court acquits the husband and his family members, and the aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if she lodges a fresh report, its reliability will be open to question.

The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an offence under section 498-A IPC is essentially private in nature, and it should be made compoundable if the parties are willing to amicably settle their dispute. Directions were given to the Law Commission of India to consider the matter and to make appropriate recommendations to the Government to bring about suitable amendments in the statute.

In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given by a bench in which one of us (Amar Saran J) was a member, a similar suggestion was made to the Law Commission of U.P. to recommend to the State government to make the offence under section 498-A IPC compoundable with the permission of the Court under section 320 Cr.P.C.

The reasons for the suggestion were that such FIRs are often lodged in the heat of the moment, without reflection after a sudden quarrel, and sometimes as a result of wrong advice or influences. But the complaining wife, who usually has no source of independent livelihood (as a key problem in our society is the lack of economic and social empowerment of women) and is unable to provide for herself in the future, may have to suffer later if the relationship with her husband is irrevocably ruptured due to the hasty filing of the criminal case, particularly in view of the fact that the offence is non-compoundable.

To meet this situation B.S. Joshi v State of Haryana, AIR 2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in proceedings under section 482 Cr.P.C or in the writ jurisdiction where the aggrieved wife compounded the offence. In the latter case it was observed that where the dispute is purely personal in nature, (i.e. the element of the offence being a crime against society is secondary), and the wife decides to compound the offence, as there would be little likelihood of conviction, quashing of the offence should not be refused on the hyper-technical view that the offence was non-compoundable "as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation"

The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been cited with approval in B.S. Joshi:

"There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counseled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts."

In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless prosecution where there was little likelihood of conviction as the parties had settled their dispute, but the proper forum for deciding the matter whether the compromise application was voluntary and bona fide or whether it was coerced was the lower court which could decide whether it was a fit case for granting permission to the wife to compound the offence under section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made compoundable with the permission of the Court.

A good option for providing recompense to the maltreated woman is "The Protection of Women from Domestic Violence Act, 2005" which provides for a gamut of civil rights for the aggrieved woman who has entered into a domestic relationship with a man, with or without marriage. Such civil rights include "Protection orders" (section 18) prohibiting the respondent from committing any act of violence, visiting the place of work, operating the common bank locker, making telephonic contact etc. "Residence orders" (section 19), which restrain the respondent from dispossessing a woman from the shared household, or from alienating or renouncing his rights to the property or by directing him to remove himself, or by providing alternate accommodation to the aggrieved woman at the existing level.

By providing "monetary reliefs" (sections 20 and 22) by paying for loss of earnings or medical expenses, or loss due to destruction of property by domestic violence, or for maintenance of the woman and her dependent children, or by payment of compensation for causing injuries (including mental torture). "Custody orders" (section 21) for custody of the child to the woman (including visiting rights) for the respondent. Criminal proceedings under this Act have been allowed only as a last resort, under section 31 when the respondent commits a breach of a protection order, or where at the stage of framing charges for breach of the protection order he finds that an offence under section 498-A IPC has also been committed by the respondent.

The Act also provides under section 14 for the Magistrate to send a matter for "counselling" before a registered "service provider," who is qualified to provide counselling in such matters to the contesting parties or to provide shelter etc. to the aggrieved woman.

In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has specifically been mentioned that the State government has given its consent to the Union of India to make offences under section 498-A IPC compoundable, and the letter of the Home (Police) Section-9 to the Union Home Ministry dated 4.2.10 has been annexed.

Whereas we appreciate this positive attitude of the State government in not objecting to section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to cruelty to compound the offence with the permission of the Court, but added a proviso that a minimum period of three months be allowed to elapse from the date of application for compromise before a Court can accept the request, provided any of the parties do not withdraw in the intervening period. The U.P. government may consider bringing out a similar amendment, as it has already expressed its opinion that the offence under section 498-A IPC be made compoundable.

Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence against women have neither ceased, nor have they been reduced, and the special provision for meeting this problem must be retained in the statute book. We quote with approval the view expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-Questionnaire regarding section 498-A of Indian Penal Code:

"While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution - legislative or otherwise."

List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon'ble Amar Saran J)

The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines or circulars for laying down a system for proceeding in matters where reports are lodged of commission of offences under section 498 A IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in this regard, and for sending the matters for mediation before the mediation cells in the Civil Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary, (Finance), U.P. may apprise the Court as to the provision for finance for appointing social workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation process, for making available adequate infrastructure/ manpower at the mediation cells in the Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities submit their compliance reports within 4 weeks. We would also like reports from all the Secretaries of the District Legal Services Authorities to submit their compliance reports (through the District Judges) for getting the aforementioned minor matters relating to offences under section 498 A IPC settled through mediation and the difficulties they encounter or forsee in complying with the directions of this Court by the next listing. The State government is also directed to submit its report on the next listing on the suggestion of the Court to take steps for making the offence under section 498-A IPC compoundable with the permission of Court by amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. Registrar-General is directed to forward copies of this order within a week to the Chief Secretary, Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the intervenors, Government Advocate, U.P. and other advocates and officials present in the hearing on 8.8.11 for information and compliance.

Order Date:- 30.9.2011 HSM.

ALLAHABAD HC_ Direction given to police & Magistrates on manner of remanding accused in offences punishable upto 7 years in accordance with newly introduced section

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 46

Case: Criminal Misc. Writ Petition No. 17410 of 2011

Petitioner: Shaukin

Respondent: State of UP and others

Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava

Respondent counsel: Government Advocate

Hon'ble Amar Saran, J.

Hon'ble Kalimullah Khan, J.

1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and departmental heads of other police units to strictly enforce the newly introduced amendments, viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State.

2. It was also pointed out in the circular that the investigating officers who file counter-affidavits before the High Court do not have any knowledge about these provisions and how they are to be applied.

3. The following observations in the order dated 15.9.11 have been quoted in the DGP's circular: "Let a copy of this order be forwarded to the DGP, U.P. within one week by the registry. The DGP may circulate this order to all police stations and investigating officers in U.P. with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b) and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by imprisonment up to 7 years, unless in particular cases the exceptional circumstances enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP submit his compliance report of this direction within three weeks."

4. Annexure 2 to the DGP's affidavit in compliance of our dated 15.9.11 also contains the following endorsement from all 72 districts in U.P.: "जनपद / थाना स्तर पर आदेश का अनुपालन कड़ाई से किया जा रहा है"

5. The directions were issued by the DGP's circular dated 3.10.11 to the subordinate police officials to clarify that ordinarily the police shall not immediately arrest accused persons wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to the exceptions mentioned in the aforesaid amended sections.

6. By the present order we proceed to explain the import and meaning of the amended provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests may not be needed, because we think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C.

7. It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the Code of Criminal Procedure, here :

41. When police may arrest without warrant. -- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –

(a)------------------
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

(i) the police office has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(C) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing.

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. –

41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received,or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.

170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

8. The import of the said provisions is that normally where an accused has been named in the FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it has been provided that on completion of investigation if sufficient evidence has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has been released on bail (if the offence was bailable), in which event security may be taken for his appearance before the Magistrate. This practice of not arresting the accused straightaway and arresting them only after sufficient evidence has been collected is normally followed by the CBI, and CB (CID) in their investigations.

9. Where however the accused has not been named in the FIR, or at the time when the co-accused have been picked up, for example in a case of vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while committing a crime, and he names another accused as also having participated in the crime, whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose arrest is sought could also be involved, or there are chances that such an accused would abscond or not respond to a notice under section 41A to appear, looking to the nature of the crime and the background of the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged in committing crimes or appears to be
participating in some organized crimes, and there is probability of the accused repeating the offence, these would also be circumstances where it may be necessary to arrest such accused without delay.

10. However in a case under section 498 A IPC where the wife subject to violence has gone back to her "maika" following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her "sasural." In E.C. Act offences again where the licences of a ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can be deferred until sufficient evidence to submit a charge sheet has been collected, when he needs to be produced before the trial court. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or not be immediately needed and they are by no means exhaustive.

11. It is with the objective of striking a balance on the need to provide the Constitutional protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation without interference, that we have refrained from passing blanket orders staying the arrests of the accused in all such cases.

12. But we do expect the police officer to record reasons in a bona fide and honest manner, why it has become necessary to arrest the accused in a particular case punishable with imprisonment with upto 7 years. The police officer should not mechanically and routinely write down in the case diary that there is likelihood of the accused running away, or presume that the accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would tamper with the evidence, unless there are strong reasons with concrete material for taking such a view, and this satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case diary before the accused is arrested.

13. Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested.

14. The propriety, honesty and genuiness of the reasons given for arrests in particular cases punishable with imprisonment up to seven years and whether they conform to the requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in the DGP's circular dated 3.10.11. We make it clear that in the event that this Court finds that the accused who are wanted in cases punishable with up to 7 years imprisonment are being arrested in a routine and mechanical matter, without the existence of the conditions necessary for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no hesitation in summoning the concerned police officers or even the superior police officers and they may even have to face contempt charges. For persistent unwarranted arrests in such matters in violation of the provisions of sections 41(1)(b) and 41 A and the DGP's circular dated 3.10.11. we may even recommend disciplinary action against such errant police officers to the DGP, U.P.

15. Section 167(1) of the Code of Criminal Procedure also requires production of the case diary before the Magistrate before whom the accused is produced for remand.

16.Section 167(1) reads thus:

167. Procedure when investigation cannot be completed in twenty-four hours. ----(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

17. As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and the Magistrate is not simply to "rubber stamp" the prayer of the police officer seeking remand of the accused, but he is to apply his judicial mind to satisfy himself that the requirements of law are met when the police produces an accused for remand. At the time of granting the remand we expect the Magistrate to examine the case diary for satisfying himself whether the police officer's reasons for immediate arrest in the cases punishable with imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for remand are restricted to the pre-conditions for arrest mentioned in the newly introduced sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police officer could reach a conclusion that unless the accused
was arrested he would repeat the offence, or why without arrest the investigation could not proceed, or whether the particular accused was as a matter of fact likely to cause the evidence to disappear, or would tamper with the evidence, or the accused would try and influence witnesses, or without arrest the particular accused would not appear in Court.

These opinions of the police officer are to be based on concrete material and cannot be the mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant remand to the accused, and allow the accused to be released on a personal bond with a direction to appear before the competent court or before the police when called upon to do so, with or without security.

18. There would be no impediment in the Magistrate remanding the accused to judicial custody at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the accused is produced before the Magistrate and the case diary shows that sufficient evidence for submitting a charge sheet has been collected. Needless to mention that in case the accused has already secured bail, then the police officer would be disentitled to arrest an accused person for seeking his remand because the charge sheet is to be submitted. The accused could then be summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers under section 204 Cr.P.C.

19. If accused who are required in cases punishable with upto 7 years sentence are not routinely arrested by the police, or are granted bail by the lower court itself, without any undue delay in disposing of their bail applications, and in appropriate cases the facility of releasing the accused on interim bails on personal bonds pending consideration of their regular bails with or without security with a direction to appear when required is also extended to them, as has been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781, considerable time of the High Court could be spent more productively in hearing single judge and two judge appeals, or bails in grave matters. At present we find that most of the High Court single and division benches on the criminal side are engaged in considering an inordinately large number of applications for bail, applications under section 482 Cr.P.C., and Division Bench criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could easily be dealt with by the Magistrates and Sessions Courts.

DIRECTIONS:

20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to
mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases.

21. The Magistrate may also furnish information to the Registrar of the High Court through the District Judge, in case he is satisfied that a particular police officer has been persistently arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter may be placed by the Registrar in this case, so that appropriate directions may be issued to the DGP to take action against such errant police officer for his persistent default or this Court may initiate contempt proceedings against the defaulting police officer.

22. The District Judges should also be directed to impress upon the remand Magistrates not to routinely grant remands to police officers seeking remand for accused if the pre-conditions for granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases punishable with 7 year terms, or where the police officer appears to be seeking remand for an accused in a mala fide manner in the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be discussed in the monthly meetings of the District Judges with the administration and the superior police officials.

23. We are also of the view that the Registrar General may issue a circular within a period of one month with directions to the Sessions Courts and Magistrates to monitor and oversee the applications for remand sought by the arresting police officers and to comply with the other directions mentioned herein above.

24. The DGP, U.P. is directed to send a status report with better particulars by the next listing as to the extent to which arrests are only being effected in cases punishable with upto 7 years imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41 A Cr.P.C. We are not satisfied by the mechanical incantation of the words by the police of 72 U.P. districts: "जनपद / थाना स्तर पर आदेश का अनुपालन कड़ाई से किया जा रहा है."

25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers.

26. We are also of the view that the UP Legal Services Authority be directed to bring out pamphlets for distribution in the legal literacy camps etc., or even issue news paper announcement with headings such as "सात साल तक की सजा पाने वाले अभियुक्तों को राहत," informing the public that henceforth accused wanted in cases punishable with upto 7 years imprisonment would get relief and not be routinely arrested because of the recent amendment to the Code of Criminal Procedure, which has been enforced from 1.11.2010.

27. Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days.

28. Let a copy of this order be also furnished to the learned Government Advocate forthwith.

29. Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and District Judges by the next listing. The said authorities may also indicate the difficulties if any, faced in complying with the aforesaid directions.

List on 14.12.2011.

Dated: 11.10.2011

Ishrat

***************************************** ****

Analysis of the Sec.498A I.P.C

2011-11-23T00:02:00.000-08:00

This article is an attempt to understand the nature, extent, qualifications, effects of this beautiful and dramatic section called S.498A, IPC.

First of all, the aforesaid section is a fiction of law with 2 clauses. Which means that a person who commits cruelty to wife should be punished. Here cruelty is of 2 types (1) cruelty by wilful conduct so that a woman commits suicide and (2) cruelty to coerce her or her relatives to meet some pecuniary(money) demand.

Here the Indian legislature has attempted to frame this evil, deeming an act as described above to be an offence and to mitigate/curtail the evil effects of this custom which was widely prevalent in the 1980's. My attempt is to distinguish primarily with regards to false or exaggerated complaints. Why the legislature has not done what it was supposed to do ? Why the Judiciary have not done enough ?

When a person is attacked and wounded - it is assumed in legislative parlance as a evil of the first degree; since you 'only' are being affected. But once the news reaches your family and relatives - the pain you have suffered is shared by your family and is therefore 'derivative evil' arising from your 'primitive evil' of first degree. Here many members of your family and relatives come to know of the 'false offence' and are alarmed.

When the news is published in a newspaper, a generic alarm is created among the public. The more public the case becomes - the more closely it is observed and covered by newspapers and TV channels. The element of "alarm and danger" is disjunctive from that of an individual to the whole society.

Now, let us say an Indian Judge, rules adversely on the subject (husband) for not allowing his wife to watch a TV channel serial of her choice thereby sentencing him to 3 years imprisonment and Rs.2000 fine., considering that he has committed cruelty and does not it for his 4 unmarried girls in his household. This constitutes 'grave danger' to the society at large. Now the women folk will act with impunity and it encourages them to file false cases even more. The majority of the public might think it will not affect them or their lives, and who by their habit of ill conceived reflection might think the Judge was right and may not be alarmed et al. This is all second degree of evil.

Now say the husband has been arrested and sent to remand by the mechanical vagrancies of our Indian Magistrates; where he commits suicide or simply after getting bail, returns home. His mental faculties have been affected to such a degree that by his very nature; he returns to work and allows his health to the worse, and loses his job, creditors knocking at his doors, S.125/127 Cr.P.C issues, thereby he suffers a life of indignity from his own family.

Remember, he has already lost his wife and children to the draconian law. Sometimes, the subject goes mentally dead for want of job, money, creditors, running around job with fond hopes but failing. This is the 3rd order of the evil.

Now the subject decides he has had enough, he decides to eliminate the subject because of the injustice done to him and his loss of reputation. Even in the past human history, the early greeks for example and the arabs had no issue of it, for fear of going unpunished. It would be classified as a successful defecation at the system. It was never a matter of shame.

The urban Indian Women, if allowed to file false 498a cases, will think of it as a means of subsistence and livelihood. Many instances of women filing multiple 498a cases have come to the fore, having assets worth crores of Rupees, with the active assistance of the parents.

Let us hypothetically assume you were charged with the offence saying you beat up your wife severely and, therefore, she had to be admitted to Government Hospital for grievous injuries; with a view to fund your bicycle. In Indian context, it is very easy to bribe a govt doctor and produce a government certificate. By the time the husband comes out of jail and starts investigating or when trial starts - the so called injuries dissipate due to effervescence of time and there is no proof. By the evidence act - circumstantial evidence is admissible. Are we talking of lack of morality or lack of government apathy or both or plain population control among urban youth ? It would seem that in the Indian context - the Indian Male or husband is a rock for 'dung drying'.

Recently the Allahabad High Court or State of UP, India; came out with some arrest guidelines after 1986 enactment. That is more than 25 years of this draconian law. All they said or directed the state government was to 'CONSIDER' some kind of amendment. God bless them and all our families. Amen ! Do not want to elaborate on it. You can find the crap they recommended on a search site.

The supreme court has termed this 'fiction of law' - as being misused and by implication 'dangerous'. They call it 'legal terrorism'. Huh !

The law commission thinks the law is great 'as is'; and is being enforced and speculates that it will help the rural women folk with no statistics but the dung statistics - meaning 'how many ever male Indian husbands suicide' it do not matter. The law commission of India has kept their decision and recommendations under what you can call as 'we believe' - which is equivalent to saying - 'I can piss on you folk and no one can touch my silly ass 'cos I can con volute - 'whatever you say'.

CONCLUSIONS:

1. Unfortunately, our legislators have NOT created provisos/qualifications/restrictions to curtail falsity or perjury since there is a bar under Sec.195 Cr.P.C. This the reason for the biggest continuing backlog of cases in context with Indian Judicial System. Falsity and perjury are common and widely prevalent in the Indian courts. I very much doubt what a judge can do when both parties are 'in pari delicto...'. Yet, s/he needs to dispose the case in favour of one and against the other. You cannot seem to curtail or extinguish an evil by permeating a greater evil. It sounds exasperatingly stupid - yet it is so !

2. By a deemed offence and by virtue of the theory of fiction of law; a new offence permeates. Obviously, a new law creates a curtail on the freedom of an individual and more power to the machinery enforcing it. The more laws - the more restrictions on your freedom. If a system were to work, it would and should mean - lesser crime and finally repeal of that statute.

3. It is a very effective law against reproduction among healthy urban Indian youth. It can be considered as an effective deterrent to curtail our population.

4. I support this law. I want more and more people to be affected by such draconian laws, sent to jail, and their families humiliated on a false complaint. I want enough people to be affected by this law that society regains its conscience of what is unjust and garbage's its indifference to such laws thinking it will not affect them personally. Praying for the day when the system crumbles under the weight of its own disgust and false trials.

5. On a positive note, India can afford to not have kids. It is just grossly overweight. With the rapid rise of divorces and live-ins; people can just have sex and enjoy with multiple partners. the system seems to be promoting this policy unfortunately instead of curtailing the mischief ! Therefore, there is no need to get married unless you want a first hand experience of our jails and the judicial anarchy prevalent in our courts.

The concept of matrimonial life is actually straight forward - yet few people practice it. Once you involve a 3rd person or atom or molecule into your life - the family will simply self-destruct ! That is the law of nature- no law need regulate it or enforce it. However pure, humble, innocent. Morality and nature takes its course.

****************************************************************

Yet another form of reverse terrorism, backlash might erupt now on Magistrates/Police/System - maybe even Politicians, which is happening today by civil society against corruption:

As of now the Indian system allows all women's complaints to be forwarded to JMFC's to send them to remand straightaway without any application of the mind. A new breed of people might be cropping up with respect to such mechanical sentencing of them and their relatives to judicial custody. This is a theory - but some accused might be like the Greeks and Arabs who in historic times might like to seek and avenge their mechanical sentencing which is being followed in India.

Revenge and vengeance are ancient and human fallacies and by no uncertain means - not just to person who is sending people to judicial remand but to police who harass and extort these innocent victims. Only when a couple of these bad policemen start getting killed will the investigation begin in India, due to faulty legislative theory and womens organisations being hit in their own families, will qualify to this theory.

Right now many women organisations survive happily on grants; their families are dependent on their finding fault with others and trying to bring justice rather than reconciliation. It runs into crores of rupees. Have the womens organisations brought forth a report to see what they have accomplished and reconciled after such draconian laws have passed. When will they accept that a false complaint is a much bigger danger to society. Instead, they will rely on reports of how many they have booked for offences. Is there a reconciliation report ? How many have benefited by these women organisations ? Is their a report on how many women have benefited and what they are feeling or achieved after being rescued ?

Nada. Zilch. They will never want you to know such details. SHH ..silence... is the word. I sympathize with them though. Everyone need live. Huh ! Live et let live but not at this cost. It just undermines public confidence and endangers everyone to live in fear of getting married. God bless those souls - who plunge into the age old tradition of marriage. After all marriage was performed only to legitimize children and regulate sexual conduct.

FINAL CONCLUSION: In god you should trust like the American$. Wink !

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Misuse of Section 498A : http://pib.nic.in/newsite/erelease.aspx?relid=78322

Ministry of Law & Justice08-December, 2011 17:32 IST

In the cases Preeti Gupta v. State of Jharkhand (decided on August 13, 2010) and Ramgopal v. State of M.P. (Order dated July 30, 2010) relating to Section 498A, the Supreme Court of India has observed that complaints are not always bona fide and are at time filed with oblique motive. The Court has, inter-alia, requested the Law Commission of India to examine different aspects of Section 498A including that of making it compoundable. Giving this information in written reply to a question in the Lok Sabha today Shri Salman Khurshid, Minister of Law & Justice, said that the Law Commission of India has considered the above decisions of the Supreme Court of India. As per the information received by the Commission, more than one lakh cases are pending. The subject relating to Section 498A has been discussed at the meeting of Law Commission of India held on 31st October, 2011 and in the light of deliberations, the Law Commission will prepare the Report which will detail the need to make the offence under Section 498A IPC ‘compoundable’ or not. The Report will also deal with other aspects relating to Section 498A such as making it bailable, process of arrest, conciliation etc.

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KKP/sl
(Release ID :78322)

Ministry of Women and Child Development08-December, 2011 16:20 IST

Increase in Dowry Cases : http://pib.nic.in/newsite/erelease.aspx?relid=78322

The Minister of Women & Child Development Smt. Krishna Tirath revealed in Rajya Sabha in written reply to a question that the National Crime Record Bureau (NCRB) data on the number of cases registered under the Dowry Prohibition Act, 1961, does not show any definite trend.

As per the NCRB data, the conviction rate under the Dowry Prohibition Act, 1961 was 27.3%, 23.1%, 23.9%, 21.5% and 23.3% in the years 2006, 2007, 2008, 2009 & 2010 respectively. The conviction rate in the year 2010 has risen over that of 2009, she said.

The Minister further stated that as per Seventh Schedule, ‘Police’ and ‘Public Order’ are State subjects under the Constitution. As such, the primary responsibility of prevention, detection, registration, investigation and prosecution of crimes, including crimes against women, lies with the State Governments/ Union Territory Administrations. However, the Central Government attaches importance to the matter of prevention and control of crime against women and has been advising the State Governments from time to time regarding the steps that need to be taken to afford a greater measure of protection to the women and, in particular, to prevent incidence of crimes against them. These advisories, inter-alia, emphasize gender sensitization of the police personnel, minimizing delays in investigations of crime against women, improving the quality of investigation and setting up ‘Crime against Women Cells’ in districts where these do not exist. States/ UT Administrations have also been advised that dowry related cases must be adjudicated expeditiously to avoid further harassment of the women and also to develop a community monitoring system to check cases of violence, abuse and exploitation.

In addition, the Ministry of Women & Child Development undertakes awareness programmes on issues related to dowry through electronic media, print media & outdoor publicity.

*****

DK/BS

(Release ID :78301)

Ministry of Women and Child Development04-August, 2011 17:57 IST
Centre moots training judges for Domestic Violence Act,2005

The Central Government feels the need to impart training to First Class Judicial Magistrates and Metropolitan Magistrates to deal with the cases under the Domestic Violence Act ,2005 through National/State Judicial Academies. Replying to a question in Rajya Sabha today the Minister of Women and Child development Smt. Krishna Tirath Stated that the Act is implemented by the State Governments/UT Administrations .

The minister observed that the Government does not have definite information about the time taken by the magistrates in disposing off the cases but It is likely that judicial process may not be completed within the stipulated period of sixty days from the date of its first hearing in all the cases.

But the increasing number of cases registered under the Act shows that more and more aggrieved persons are accessing reliefs and services under the provisions of the Act. Smt. Tirath revealed that as per National Crime Records Bureau (NCRB) data, total of 5788, 5643 and 7802 cases were registered under the PWDVA, 2005 during 2007, 2008 and 2009 respectively. The Protection of Women from Domestic Violence Act, 2005 (PWDVA, 2005) came into force w.e.f 26.10.2006. The Minister stated that Andhra Pradesh has witnessed highest no. of cases in the year 2009 under this Act in the nation which stands at 2710 .

According to the figures tabled in the house total 203804 cases of all types of crimes against women were reported in the year 2009.The crimes included dowry deaths, physical assault and harassment at workplaces. However majority of complaints received by NHRC relate to atrocities on women by the police.

She stated that the advisories issued to state governments emphasise on gender sensitization of the police personnel, minimizing delays in investigation, improving the quality of investigations and setting up ‘Crime against Women Cells’ in districts where these do not exist. States have also been advised to increase the overall representation of women in police forces.

Ministry of Women and Child Development05-August, 2011 17:58 IST

Proposal to amend the Dowry Prohibition Act ,1961

The Government of India is mulling over a proposal to review/amend some provisions of Dowry Prohibition Act, 1961.Replying to a question in Lok Sabha today the Minister of Women and Child Development Smt. Krishna Tirath stated that the Government has a proposal for amendment to the Dowry Prohibition Act,1961 to make it more effective and prevent its misuse .The Minister revealed that No complaints/ representations alleging misuse of Dowry Prohibition Act, 1961 have been received. She however informed that, some complaints/ representations regarding alleged harassment of husband and other family members for inflicting cruelty on account of dowry using Section 498A of IPC, have been received.

Smt. Tirath stated that for preventing the misuse of Section 498A of IPC, Government has issued an Advisory to all the State Governments and Union Territory Administrations on 20th October, 2009. They have been advised to comply with the procedures laid down by the Hon’ble Supreme Court and that in cases of matrimonial disputes, the first recourse should be to effect conciliation and mediation between the warring spouses and their families. The recourse to filing charges under Section 498A IPC may be resorted to where such conciliation fails and where there appears a prima facie case under Section 498A and other laws.

……………………………………………………………………………………
DK
(Release ID :74012)

Ministry of Women and Child Development

04-August, 2011 17:55 IST

Centre not to interfere in joint matrimonial property issues

The Central Govt does not have any proposal to make a central legislation for assessing the joint matrimonial property. Replying to a question in Rajya Sabha the minister of women and child development Smt. Krishna Tirath stated that the joint matrimonial property rights are governed by respective personal laws. Provisions for settlement and disposal of joint matrimonial properties at the time of divorce have already been made in respective personal laws and in some cases; it is governed by customs and usages. The minister further stated that since unpaid domestic work of housewives is not considered for GDP compilation, its value is not assessed.

...........DK
(Release ID :73923)

Can parents fight divorce case ?

2011-10-13T05:58:00.000-07:00

Man fights dead son’s divorce case

Shibu Thomas

Mumbai: In a unique case, the Bombay High Court has permitted an 80-year-old man to pursue his son’s divorce case despite the latter’s death. “The father of the original appellant—the husband—will have the right to continue to prosecute this appeal (for divorce) as the legal heir,” Justice A B Chaudhari said, adding not permitting it would be a violation of natural justice. The judge dismissed the objections of the daughter-in-law, Sheela (30), to allowing her father-in-law Gajanan Bhambare to continue with the proceedings in the place of his deceased son Nishant, who had moved the family court seeking divorce citing desertion and cruelty.

Legal heirs benefit if wife’s divorcee, not widow:

Mumbai: Gajanan Bhambare, an 80-year-old man, is continuing his dead son Nishant’s fight for divorce from his wife Sheela. The family court had dismissed Nishant’s divorce petition, following which he filed an appeal in the Bombay high court in 2009. But soon after filing the appeal, Nishant, a resident of a village in Gondia, passed away. Earlier this year, his father urged the HC to substitute his name for his son’s so that he could fight the unfinished litigation.

    Sheela’s lawyers opposed the application, saying that the divorce proceedings were purely a personal cause of action and would abate with her husband’s death. They further argued that the dismissal of the divorce petition was right.However, Bhambare’s lawyers referred to a SC judgment and contended that the proceedings could go on.

    Under the law, when a divorce petition isfiledin a family court and one of the spouses dies,thelegal proceedingscome to a stop. However, the circumstances change when a divorce hasbeen grantedby a trialcourt and an appeal is pending before the HC. In such a situation, the legal heir of the spouse who has died can continue with the litigation, the lawyer said. The reason hereisthestatusof the marriage changes once a decree for divorceis granted.

    Such proceedings will not abate once the spouse who has obtained divorce from the family court dies. His legal heirs have an interest in ensuring that his wife remains a divorcee and not a widow and she is not allowed to share with the other heirs the property of her deceased spouse.

    Referring to the Supreme Court court judgment, Justice Chaudhari said the dismissal of Nishant’s divorce petition would continue to operate against his legal heirs if the appeal was not heard and “that obviously wouldbe violative of the principles of natural justice”. “It is imperative that the said legal heir of the appellant oughtto be allowed to prosecute the present appeal and contest the decree which was passed against the husband,” the judge said, over-ruling the wife’sobjections to adding her father-in-law’s name in thelitigation.

    The court scheduled the hearing of the case for October 18,2011 after Sheela’s lawyers said her application to be appointed to her husband’s post on compassionate grounds had been kept pending by his employers.

Topeka May Make Domestic Violence Legal To Save Money

2011-10-06T10:46:00.000-07:00

Many cities, counties and states across the U.S., feeling increasing pressure to reduce local budgets and cut costs. Public safety programs in particular have taken the brunt of these cuts, with firefighter and police presence being gouged to save staffing costs.

Kansas is going a step further. Finding some crimes too costly to move through the legal system, one county has decided it will no longer prosecute misdemeanors, including domestic violence. The county legislators’ assumption was that the cities would pay for the prosecution themselves. But Topeka, Kansas, has chosen to take a different approach, and is considering just no longer making domestic violence a crime. The city counsel is now meeting to discuss “repealing the part of the code that bans domestic battery.”
Ending the prosecution of domestic violence would not only leave women open to increased physical violence in the future, as there would be no repercussions for a partner’s abusive actions, but could potentially mean the harm or even death of the women who’s abusers are currently in the system and will be released rather than prosecuted, which Fox News states total at least 30.
As one former abuse victim stated bluntly, “They need to invest in headstones, because these women are going to end up in cemeteries.”
Is a woman’s health and life worth so much less than a balanced local budget? As Feministing puts it, “Thanks, austerity!”
* * * * * * * * *

DV should be a civil dispute in India and the women should pay court costs for the cost of suit and if found to lie (perjury) or false, vexatious or frivolous - the amount should be paid to the husband.

Please note: How the words are being interchanged - previously DV was a crime and now they term it as a misdemeanour. Wonderful. I guess the days of madam of "Staying Alive" reports aka UNIFEM alias Lawyers Collective and garnering lakhs of dollars funding over non sense is OVER.

Sheetal's FIR accuses Mafatlals of cruelty

2011-08-25T05:51:00.000-07:00

MUMBAI: A month after her step-daughter accused her of stealing almost 40 priceless paintings from the Mafatlal bungalow, Sheetal Mafatlal, the second wife of Atulya Mafatlal, hit back by registering a criminal case of cruelty against her husband and in-laws.

Gamdevi police has registered an FIR under Section 498-A (cruelty to wife by husband, in-laws) of the IPC. Sheetal has accused Atulya, who is recovering from cancer treatment in London, his 78-year-old mother Madhuri, brother-in-law Ajay, his sisters Kunti Shah and Gayatri Zaveri (both living nearby in Malabar Hill) and Marushka-Atulya's 19-year-old daughter from his first wife Payal.

The four-page FIR, in Marathi, talks of mental and physical harassment from 2006 onwards by Madhuri and Ajay. It says they beat her regularly with a wooden stick and in June 2006 she required "five days' medical treatment at the government-run GT hospital." After 11 years of marriage, she has said that Atulya is an alcoholic who used to beat her and demand dowry from her parents.

Atulya Mafatlal, speaking from London, told TOI, "I am aghast at the travesty of justice; that the police could even register such a bogus complaint without verifying the truth. My mother suffers from lung fibrosis. For the last five-six years she can't walk 10 steps without getting breathless and neither she nor Ajay ever enter my side of the house." Atulya added, "It is ridiculous to hear that they beat Sheetal who exercises 90 minutes daily with a personal trainer and can lift 10 kilos on her feet. Why would she go to a dreary government hospital and not to Breach Candy or Cumballa Hill next door?"

On the theft case against her, Sheetal's lawyer Zulfikar Memon said, "It was a family dispute and there was no criminal angle involved." But the criminal complaint by Sheetal can send her in-laws to three years in jail.

Fearing such "a baseless move" from Sheetal, Mafatlal matriarch Madhuri and Ajay had already got an anticipatory bail from the court that requires the police to give them a 72-hour pre-arrest notice.

***************************

MUMBAI: Madhuri Mafatlal-78-year-old, frail and hurt by "baseless accusations" hurled at her by her daughter-in-law-is fighting back.

In a twist to the Mafatlal family saga and a rare plea by a woman against her daughter-in-law, the Mafatlal matriarch approached a magistrate's court on Tuesday seeking protection from son Atulya's estranged wife, Sheetal, under the Protection of Women from Domestic Violence Act.

She has sought to restrain Sheetal from entering the 10,000 sq-ft second floor of the Mafatlal Bungalowwhere the family has been residing since the days when theirs was one of top two industrial houses in the city. She is also seeking orders to prevent Sheetal from alienating any of her assets, committing acts of domestic violence against her family and communicating with her.

This is not the firsttime. In 2005 too, Madhuri said she was "forced to move court" when she went to the high court against the "security guards posted by Sheetal" outside her door saying it was "harassment and gross violation of privacy". That case was against, both Atulya and Sheetal, though to restrain them from dispossessing her (Madhuri) from the bungalow.

Now, Sheetal has accused Madhuri-who can no longer walk over a dozen steps at a time and requires six hours of oxygen support due to her lung fibrosis-of "physically beating and torturing" her. Expressing fears of her safety in her own home, the Mafatlal matriarch has asked the Girgaum magistrate to restrain Sheetal, her servants and relatives from entering the house, a tenanted property. The application said "Sheetal intentionally filed a false complaint of cruelty against her and her family for which she had sought anticipatory bail. She said she felt insecure in her own house and based on the events till date, "apprehended that Sheetal would resort to any and every drastic measure to unlawfully and forcibly disturb her possession and may also injure her". Sheetal would also be asked to sign a bond, saying she would not commit any act of domestic violence.
A magistrate on Tuesday ordered a protection officer to file a report, issued notice to Sheetal and placed her application for interim reliefs for arguments on September 8, after hearing Madhuri's advocate Sayaji Nangre.

Madhuri's application states Sheetal has been staying in the Altamont Road bungalow since February 2000 when she married Atulya. Madhuri says she has been residing there since February 1948 after her marriage to Yogindra, Atulya's father.

The bungalow where Madhuri has been staying since her marriage to Yogindra Mafatlal in 1948, was bought in 1935. In 1938, a new structure was built and occupied by Navinchandra and Bhagubhai Mafatlal, who held It belonged to Navinchandra and Bhagubhai Mafatlal in equal shares. In 1944, after Badhubhai's death, his share was devolved to his widow and son, Shardaben and Hemantand the property was occupied by both families. In 1954, Navinchandra retained a part of his share and sold three parts to his sons Arvind, Yogindra (Madhuri's husband) and Rasesh. At the end of the year, the bungalow remained as one-eighth share of Navinchandra, Arvind, Yogindra, Rasesh and one-forth of Shardaben and Hemant.

In 1955, Navinchandra died and the entire property was sold to family concern Gagalbhai Jute Mills Pvt Ltd to which a rent of Rs 1,000 per month was paid.
The jute mill was amalgamated with Mafatlal Gagalbhai Co in 1968 and all residents became tenants. Two years on, the property was sold to Surat Cottons Spinning & Weaving Mills Pvt Ltd. now known as Shanudeep Pvt Ltd.

After Yogindra's death, Madhuri said she became the lawful tenant of the 10,000 sq ft second floor. She said Sheetal stayed in the family flat in London at Rutland Garden but before leaving it, she allegedly "vandalized the flat and threw away clothes of Yogindra Mafatlal and called their daughter Kunti a 'rag-picker' when she went to collect it". Despite the 2005 HC order, Madhrui said, Sheetal continued to harass her.and last month stole almost 40 valuable paintings of renowned artists worth Rs 50-60 crore and family jewellery but the Gamdevi police did not initially take action till court ordered it to.

On July 13, a day after the police complaint was lodged, Madhuri said Sheetal wrote an email to Atulya, who is ailing in London, saying she kept the valuables in safe custody. According to Madhuri's plea, Sheetal, through Atulya, filed a complaint against her other "son Ajay for intimidation", which the HC quashed.

Interim order against arrest for Atulya's daughter: The Mumbai sessions court on Tuesday continued an interim order of anticipatory bail for Atulya Mafatlal's teenaged daughter Marushka (from his first wife Payal) against a complaint of cruelty filed by his second and estranged wife, Sheetal. After hearing advocate Sayaji Nangre, the judge asked on what basis was Sheetal's complaint filed under Section 498-A of the IPC. Sheetal had lodged three
complaints after Marushka filed one against her, accusing her of removing valuable paintings from their house on July 13, 2011. The police said the complaint was converted into an FIR on August 17. The court directed the police
to file its additional reply to Marushka's plea against arrest. Sheetal has to be present for the next hearing on September 9.

Drama Unfolds:

July 13: Marushka Mafatlal lodges a complaint with the Gamdevi police against her step-mother Sheetal, accusing her of removing paintings worth over Rs 50 crore from home without informing anyone. Police do not take action
July 21, 28: Marushka lodges further complaints against Sheetal. Still no police action

Aug 1: Marushka moves magistrate's court to seek police probe

Aug 10: Magistrate orders the Gamdevi police to register theft case against
Sheetal

Aug 17: The police register FIR against Sheetal

Aug 17: The police record Sheetal's complaint of cruelty by husband and in-laws

Aug11: Madhuri and Ajay Mafatlal seek anticipatory bail

Aug 12: Court grants anticipatory bail to them

Aug 25: Marushka gets interim order against arrest. Matter pending

Aug 30: Madhuri moves Girgaum magistrate court with a complaint of domestic violence against Sheetal

Child visitation arguments

2011-08-13T12:30:00.000-07:00

The Supreme Court held in a 1994 case that an effort to modify a sole custody provision or to terminate a joint custody provision must satisfy the "serious endangerment" standard and that a motion or petition to modify child custody provisions in a dissolution decree that have the effect of substantially changing the primary residence of the children, even though a joint custody designation is retained, must also satisfy that standard. The effect of the holding was that an effort to modify the physical custody arrangement in a joint custody decree that does not substantially change the child's primary residence may be considered under the "best interest" standard, but if modification of the child's primary residence is sought, the "serious endangerment" standard is to be applied.'" Despite this holding, in a case decided a mere 4 days later, the Supreme Court affirmed a modification that had the effect of substantially changing the primary residence of the children, based on the "best interest" standard. Even though the District Court had wrongly applied the "best interest" standard instead of the "serious endangerment" standard, the court nevertheless allowed the modification because the children's best interest was served by splitting them up and because the mother had failed to object to the use of the wrong standard.'

CASE LAW DEVELOPMENT -- VISITATION

The same "best interest" standard applies to initial determination of visitation rights as applies to initial custody determinations. Visitation rights of a parent are merely incidents of custody, and the same principles that apply to custody apply to visitation rights as well.'« It has been held that visitation may be used as a factor in awarding custody in cases when visitation interference has occurred in the past. However, when there is no general presumption that either parent is more entitled to custody, there is a general presumption that the noncustodial parent is entitled to reasonable visitation unless it would not be in the child's best interest. What constitutes "reasonable" visitation rights is determined by the court on a case-by-case basis, given the circumstances of the parties. No general standard of reasonableness has been determined, although visitation should be defined allocating sufficient time for a meaningful relationship to be nurtured.

Nevertheless, the Supreme Court has held that a schedule of alternate weekends, alternate holidays, one evening a week, and 2 weeks in the summer was reasonable when both parties lived in Montana." In a case in which the father lived in Alaska and the mother - lived in Montana, a schedule was held to be reasonable that included liberal visitation for the father when he was in Montana, week-long blocks of time every 3 or 4 months at the father's home or other appropriate location provided that the child was accompanied by an adult family member when traveling, 14-day visitation blocks when the child was in elementary school, and increased visitation after the child entered junior high school. A recent case also clarified the visitation rights of a primary custodial parent when the mother had primary custody during school months and the father had visitation rights during summer months, on weekends and alternating holidays, and at other reasonable times. The Supreme Court found that the father's custody in summer months actually qualified him as the custodial parent during that time and that the mother, as noncustodial parent in the summer, was entitled to reasonable^visitation because there was no evidence that such visitation would endanger the children.'

There is no requirement that a specific visitation schedule be included in the decree. When parties indicate a willingness to allow visitation, they are generally granted latitude to work out a mutually satisfactory solution and avoid the inherent difficulties of a hard and fast visitation schedule, and if visitation proves unworkable, the parties can return to District Court for clarification.* The wishes of the child are also subject to the same standard in visitation as in custody. The child's wishes must be considered by the court, and if those wishes are not followed, the court should state its reasons for not doing so."

Another aspect of visitation that has been subject to ongoing litigation is the limitation of visitation rights. By statute, a court may not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health or unless a noncustodial parent or other person residing in the noncustodial parent's household has been convicted of deliberate homicide, mitigated deliberate homicide, sexual assault, sexualintercourse without consent, deviate sexual conduct with an animal, incest, aggravated promotion of prostitution of a child, endangering the welfare of children, partner or family member assault, or sexual abuse of children. Once a conviction has occurred, the burden is on the noncustodial parent to prove that visitation would not seriously endanger the child. Unsubstantiated allegations of physical abuse or potential harm from transvestism are not sufficient to warrant limitations, but limitations have been affirmed in cases in which a child's best interest could be affected by travel," by a parent's influence on the child's health by a parent's mental health, by a parent's extensive involvement with drugs, by a comparatively affluent lifestyle without employment, by failure to complete inpatient treatment for chemical dependency, and by failure of a parent to provide information concerning a child's whereabouts during visitation or to give priority to the child's scheduled activities.' A significant case held that placing conditions on visitation in an effort to curb a parent's behavior toward the children and foster a more healthy relationship did not amount to a termination of visitation rights or an abuse of court discretion." The Supreme Court recently held that the imposition of a requirement that visitation be supervised is not considered a "restriction" within the statutory context.

Also, visitation has been allowed in some cases contingent upon a parent's compliance with certain conditions, such as current payment of child support when stipulated by the parties;" it has been allowed when the court believes that visitation should be supervised by the director of family court services or by the father when grandparents exercise visitation; and it has been allowed when a man who was found to be a child's father in a paternity suit subsequently sought visitation, even though he was a complete stranger to the child and was required to establish a relationship with the child before liberal visitation rights were granted.'

Courts have also addressed the relationship between the right to visitation and the obligation to pay child support, a question having been raised as to whether a noncustodial parent needs to pay child support if the custodial parent denies or inhibits visitation. The Supreme Court rejected a father's contention that he had no obligation to support his child under a divorce decree unless and until he exercised his visitation rights, holding that visitation has no bearing whatsoever on a parent's legal and moral obligation to support the child. This principle clearly applies to actions brought under the Uniform Interstate Family Support Act, which states that payment under a support order may not be conditioned upon a party's compliance with visitation provisions.' Applying that principle, courts have held that a child's right to support and the parent's support obligation are not affected by misconduct of the parent or violations of visitation provisions of a custody decree. ' The law takes the point even one step further in adoption cases, allowing for termination of parental rights without consent when a parent is able to provide.

Despite this seemingly just principle of a child's entitlement to support, the staff has been made continuously aware of numerous cases of alleged abuses of visitation rights, complicated by this very principle that the courts have held to be in the child's best interest. Montana's child support enforcement statutes are among the most comprehensive in the nation, and to date Montana is the only state to comply with the federal mandate to have a certified automated support enforcement system in place. Nevertheless, the idea that the state takes such aggressive measures to enforce support, generally on behalf of the mother, while no corresponding enforcement of rights exists to ensure visitation, generally by the father, is viewed by some as a blatant inequity of the system, even to the point of suggestions of sexual bias. Although the joint custody law was originally presented as a way to cure prior sexual preferences in custody matters, ' there may in fact be some latent holdover effects of the long-held presumption that custody of children of tender years should be granted to the mother, a principle arguably still embodied in the "best interest" standard presumption that custody "should be granted to the parent who has provided most of the primary care during the child's life".'"" This seeming inequity has been further aggravated by court decisions holding that a child is entitled to support by the noncustodial parent even if the custodial parent fails or refuses to provide court ordered visitation. It could be argued that courts have created a contradiction by holding on one hand that support and visitation are two separate issues, but then allowing the requirement for payment of support as a condition of visitation in certain cases, especially in the absence of a case to test whether a custody decree requiring visitation as a condition of payment of support would be allowable, even if the parties stipulated to it.

It is not difficult to imagine the position of a father with visitation rights who pays his support, under strict penalty of the law (which may garnish his wages or suspend or rescind his licenses to practice his profession and to drive his car) and backed with the full and aggressive enforcement power of the state, whose only legal recourse if his visitation rights are denied is to hire an attorney and return to court to seek enforcement of the rights to which he is already fully, legally entitled. A custodial parent who refuses to comply with court-ordered visitation might be subject to a custody modification based on frustration or denial of visitation if there has been a change of circumstances, and the law even provides a presumption that interference with visitation is not in the child's best interests' but such a custodial parent is generally subject to a charge of criminal contempt of court, which may include a possible misdemeanor fine and imprisonment or other sanctions within the general contempt power of the court. ' Although Montana does have laws against visitation interference, ' ' the statutes are seldom enforced, probably because a primary defense to visitation interference is that an offense does not occur if the custodian acts with reasonable cause, which could conceivably be any action within reason. Punitive approaches such as fines, jailing, and changes of custody for parents are sometimes viewed with disfavor because they may have strong and potentially damaging consequences for the children involved. However, in a recent case, the Supreme Court affirmed a finding that a mother was in contempt of court for denying a father's

visitation on 16 occasions and that she had no authority to limit or place any restrictions on visitation beyond those contained in the custody decree. The court held her responsible for payment of the father's attorney fees and his mileage expenses to cover his drive of 1 10 miles one way for each unsuccessful visitation, even though the fees and costs exceeded the statutory fine for contempt. '°

Simply put, very little incentive exists for implementing visitation, except in cases in which a custodial parent believes that the child still needs the influence of both parents and is willing to ensure that the child receives that influence. However, because many custody situations involve highly contentious circumstances, having the noncustodial parent physically present may well be a disincentive to providing visitation. In an effort to mitigate the negative financial and social effects of custodial parents who must rely on welfare if child support is not forthcoming, the state has made support enforcement a strong priority. There is no corresponding negative financial effect on the state budget when a parent is denied visitation. While it is undeniably true that a child is entitled to financial support, a strong case can also be made that a child is equally entitled to the nurturing and emotional support of both parents. The negative effects of visitation denial will not reflect in the welfare rolls, but in the lives of the children who are denied that nurturing and emotional support. In terms of rights granted under a divorce decree, both parents should be equally entitled to rely on enforcement of the provisions of that decree, but the reality is that child support provisions are strongly enforced while the enforcement of visitation rights is virtually nonexistent. For example, it is not difficult to understand why a father might be reluctant to pay support for children he was not allowed to see and with whom he could not maintain a meaningful relationship. Some noncustodial parents contend that support payments would generally be paid more promptly and with less need for strict enforcement measures if they could rely on an equal enforcement of the right to visitation. If the court finding that "a parent should not be able to enjoy the benefits of parental rights while voluntarily shunning the burden of parental obligations" is indeed true, should a custodial parent who is obliged to provide visitation be allowed to voluntarily shun the burden of that responsibility while enjoying the benefits of free, state sponsored and state-enforced support enforcement laws?

JOINT CUSTODY

Under Montana's joint custody law, "it is the public policy of this state to assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of child rearing". ' This does not mean, however, that joint custody is mandated if it is not in the best interest of the child. "Further, it has been held that the presumption in favor of joint custody arises only if a party requests it," and the joint custody agreement must be made knowingly and voluntarily. As in the grant of sole custody, the court shall state in its decision to award joint custody the reasons and factors considered in making the award. ''Despite the statutory provision that a finding that the parents are hostile to each other is not a sufficient basis for denying the award of joint custody,' 'it has nevertheless been held that parental cooperation is a key factor in joint custody and that when there is no cooperation, an award of sole custody is proper even in cases in which one parent maintains that joint custody is necessary because the other parent denied visitation.''* The law specifically provides for court discretion in directing the parties to consult with appropriate professionals for the purpose of assisting the parties to formulate a plan for implementation of the custody order or to resolve any controversy that has arisen in the implementation of a plan for custody.''Also, despite the provision that the allotment of time between parents must be as equal as possible," joint legal custody must not be confused with physical custody. Joint custody may involve equal physical custody of the children by both parents or it may entail one parent having substantially more or less actual physical custody than the other parent. Although the access factor is not a mandatory consideration in joint custody awards, there is no reason

why it should not be considered when attempting to arrange for a child's best interest and

to facilitate public policy."

Because the child's best interest lies at the basis of every joint custody award, the kinds of physical custody and visitation plans found reasonable by courts are as varied as those approved in sole custody arrangements. For example, courts have held that an equal 6-month division of time between parents was an acceptable joint physical custody arrangement,'' as was an arrangement limiting the father's visitation to alternate weekends, alternate holidays, an alternate week night, Father's Day, and 3 nonconsecutive weeks in the summer," an allotment of 140 days custody to the father and 225 to the mother, ' a fixed visitation schedule granting the father about 75 days out of 170 available nonschool visitation days,' 'and an arrangement that physical custody during the school year not be interrupted for a child with learning and physical disabilities.'" A child's personal preferences as to custodian are not paramount if they are not in the child's best interest, as determined by the court. '

A distinction has been made as to the standards applicable to modification of joint custody, allowing the "best interest" standard to be applied when the modification involves an adjustment of conditions within a joint custody arrangement,' but requiring application of the "serious endangerment" standard in cases in which termination of joint custody is sought' or when a modification will result in a substantial change in the primary residence of the children. '

The practical effect of a joint custody arrangement is that, aside from a joint custody parent's accessibility to certain records, joint legal custody is distinguishable from sole custody in name only. Neither joint custody parent is granted any rights superior to a sole custody arrangement-the law is broad enough for a court to fashion virtually any kind of joint custody and visitation arrangement that is viewed as being in the child's best interest, and the same general standards apply to modification of either arrangement.

Although there may be a number of factors that contribute to the ever-increasing number of support enforcement actions, the initial hopes of the advocates of joint custody that child support avoidance would be reduced by implementing that concept' have not been realized with any measurable success. When the joint custody law was first presented to the Legislature for consideration in 1981, it was touted as a law that "would ensure the minor child flexibility and constant contact with both parents". 'Contacts with the staff and a review of applicable case law indicate that all the abuses of the system that have arisen in sole custody situations, from child support enforcement problems to jurisdiction problems to visitation problems, can and do arise just as easily in joint custody situations. While espousing a noble purpose in seeking "to assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of child rearing", the bottom line is that the joint custody preference has had, and will probably continue to have, little measurable effect on marriage dissolutions involving contentious or uncooperative parents and that any benefits to children in joint custody situations will arise only if parents honestly accept the responsibilities of child rearing and overlook their personal differences for the well-being of their offspring.

GRANDPARENT VISITATION

Under Montana law, the District Court may grant to a grandparent of a child reasonable visitation rights, including but not limited to visitation rights regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under marriage dissolution, adoption, or youth court statutes, if the visitation would be in the child's best interest. Grandparent visitation is limited in adoption cases if the child is adopted by a person other than a stepparent or a grandparent. The Department of Public Health and Human Services must be given notice of a petition for grandparent visitation in those cases. '

In a related instance of grandparental involvement, as of 1995, in cases when it is necessary to remove a child from the child's home, the Department of Public Health and Human Services shall, when it is in the best interest of the child and when the home is approved by the Department, place the child with the child's extended family, which may include grandparents and great-grandparents, prior to placing the child in an alternative protective or residential facility. 'A court may transfer legal custody of a youth in need of care to a relative, which may include a grandparent, if necessary to protect the welfare of the youth, ' ' or, upon termination of parental rights, it may transfer legal custody of a child, with the right to consent to the child's adoption, to an individual who has been approved by the Department, which may include a grandparent.''

As with other court-ordered visitation, there is no statutory definition of what constitutes reasonable grandparent visitation. The best interest of the child is the determining factor. Courts have held as adequate a schedule granting a total of 4 weeks of visitation a year, plus holidays and additional visitation conditioned on the mother's approval.'" It was held proper for a trial court to disapprove a schedule in the grandparents' home that would subject the child to contact with the father yet would allow the grandparents to visit the child in the mother's home.'" it was not an abuse of discretion to condition grandparents' visitation upon the simultaneous visitation by the father. 'Absent allegations of attempted independent great-grandparent visitation or a trial court finding on independent reat-grandparent visitation rights, a parent's contention that state statutes did not address reat-grandparent or great-great-grandparent visitation rights was considered moot.'

OPTIONS

There are some options that the Legislature could exercise to address visitation problems while leaving intact the strong and effective support enforcement statutes. One option might be to create a "visitation enforcement division", similar to the Child Support Enforcement Division, to provide resources and legal help to parents who pay their support but are denied visitation. However, there are some potential problems with such a scheme.

The creation of yet another governmental bureaucracy and the funding necessary to implement it might not be favorably received in this time of budgetary uncertainty, particularly when no federal funding exists for this purpose. While the Child Support Enforcement Division can charge a handling fee for each payment of support collected on behalf of any obligee who is not a recipient of public assistance and collect a late payment fee from an obligor for each late payment of support, deducting those fees from the support payment to help defray administrative costs and help ensure that the support enforcement program is at least partially self-supporting, there would be no corresponding penalty available for visitation enforcement since there would be no money collected from visitation enforcement actions. Visitation enforcement would have to be funded either with the state general fund or by a fee assessed on persons who use the service. In short, it would cost money to underwrite visitation enforcement, with no obvious direct reduction in state budget expenses.

A second option is to include a provision in the support enforcement statutes to specifically consider visitation as part of the hearing process triggered by a support enforcement action. However, a problem with this concept is that a parent would have to be in arrears in support payments before the forum for consideration of visitation problems would be available. Further, the Child Support Enforcement Division would have no available federal funding to implement the hearing process in cases handled by the Division.

A third option might be to allow establishment of a kind of child support "escrow account" into which a noncustodial parent who is not in arrears and thus not subject to child support enforcement actions, but who is nevertheless experiencing visitation problems, could pay support while issues of visitation are investigated and resolved, thereby ensuring the ultimate availability of those funds for the child. If a custodial parent proved that visitation was in fact being provided as required, the funds would then be released. While this option may be precluded by federal law in cases that are administered by the state support enforcement entity and could prove ineffective in AFDC cases, the "escrow account" concept might be workable under certain circumstances. It would allow a noncustodial parent to make support payments on time, thereby avoiding the need for intervention by the Child Support Enforcement Division, but in effect payments would be made "under protest". This process might well facilitate a quick resolution of visitation problems by the parties themselves because of the custodial parent's interest in receiving the support payments. A sanction could be assessed againt a noncustodial parent who used the escrow account to vex a custodial parent.

A fourth option might be to clarify the definition of custody or visitation interference and increase civil penalties for custody or visitation violations, perhaps on an increasing scale of penalties for continued or aggravated visitation interference.

A fifth option might be to require either parent to give notice to and be granted approval of the court before relocation of the permanent residence of the child occurs. Under present law, notice is required to be given by the custodial parent to the noncustodial parent if the residence is changed to another state, but in-state changes are not required to be noticed, nor is notice required to be given to the court itself.

A sixth option might be to require a court to order parents to attend an educational program on dissolution issues, rather than making attendance optional. The program could include a specific discussion of custody and visitation issues as part of the program curriculum so that the parties would be clearly informed of the obligations that visitation will impose on their parenting and of the importance of visitation in the best interest of their child.

A seventh option might be to provide for periodic custody and visitation review in all custody cases, perhaps every 5 years. A provision could be required in every custody decree that at the request of either party, the decree be periodically reexamined by the parties and the court as to the efficacy of custody or visitation provisions.

An eighth option, and one that could potentially relieve a considerable portion of the heavy court dockets currently devoted to family law issues, would be the establishment of an intermediate family law court of limited jurisdiction that could provide an official forum for the consideration of custody and visitation issues. The court could be similar to the Workers' Compensation Court, perhaps a three-member panel that could examine the facts and provide an interim level of review so that affected parties are given a specific forum to address family issues as they arise. The primary consideration in this option is of course funding, but the proposal would no doubt provide a welcome relief to the parties and the courts. The exercise of option seven, a periodic review, could logically be handled by a - family law court.

Short of establishment of an intermediate family law court, a ninth option might be to encourage more and better use of the family law mediator to settle visitation disputes.

Costs for using a mediator are apportioned between the parties. The definition of a visitation dispute could be clarified to include a claim that a noncustodial parent is not visiting the child as well as a claim that a custodial parent is denying or interfering with visitation. The family law mediator concept has been law only since 1993, but a directive by the Legislature ensuring that parties are aware of the mediator option and encouraging courts to apply it might facilitate the settlement of visitation disputes.

A tenth option, currently employed by at least one state, is the concept of compensatory visitation, which allows the court to order a custodial parent to permit additional visits to compensate for visitation that is wrongfully denied to the noncustodial parent. The additional visitation must be of the same type and duration as the wrongfully denied visit and must be taken within a reasonable time after the wrongfully denied visit, perhaps within 1 year, at a time acceptable to the person deprived of visitation.

The incidence of visitation enforcement cases might actually be surprisingly small. Many parents do take visitation seriously, understanding that it truly is in the child's best interest to have ongoing, nurturing contact with both parents. Visitation times are no doubt viewed by some custodial parents as a period of respite. In those cases, a problem can arise when a noncustodial parent refuses to exercise the visitation rights. Sadly, some noncustodial parents really are not interested in contact with their children, and visitation is not an issue. However, in those cases when the noncustodial parent has a legal right to visitation and truly wishes to maintain contact but that contact is not allowed or is frustrated, the question could be posed as to whether the Legislature feels it worthy to ensure that both parents are guaranteed the rights of parenthood, as well as the responsibilities, by providing some mechanism to ensure that visitation occurs. This is ostensibly the intent of Montana's joint custody laws, discussed above, but concerns expressed to the staff raise serious questions as to whether the policy is truly effective. In cases of visitation, as in cases of child support, it should be the best interest of the child that receives highest priority.

CONCLUSION

Montana's present child custody and visitation laws are on solid constitutional and legal ground and have developed to a great extent in response to the changing character of the structure of society itself. As the nature of society continues to change, some laws may need to be modified to adjust to those changes. The "best interest of the child" standard provides a very reasonable and prudent basis for legislative decisions in the areas of family law that concern children. That standard should continue to be applied as the Legislature struggles to adapt legal tenets to the ever-changing and highly contentious arena of child custody and visitation.

Live In proposed amendments in law - 4th August 2011

2011-08-04T12:27:00.000-07:00

WITHIN AND WITHOUT
The government is planning to revisit the clause in the Domestic Violence Act that brings women in live-in relationships in its purview, reports Manisha Jain

The Protection of Women Against Domestic Violence Act, which was passed in 2005, has come as a boon to women harassed and beaten by their husbands or other relatives — be it siblings, nephews or parents — within the confines of their homes. Yet six years down the line, the law continues to have some grey areas that have not been addressed.

One of the most contentious aspects of the law is that it brings live-in relationships in its purview. It indicts men if they indulge in physical or mental violence to their live-in female partners. The latter, if they’re tortured or beaten by their partners, are entitled to get succour and protection and even maintenance if they are forced out of their homes.

This provision has been widely criticised as some are of the view that by bringing live-in relationships within its ambit, the law is encouraging people to get into such liaisons, and that, by extension, it is an encouragement to people to commit “immoral” acts.

Another thorny issue is that the law does not specify the length of time a couple needs to be in a relationship to make the woman eligible for maintenance from their estranged partners. So, critics argue, on paper a woman who has been in a live-in relationship for six months would seem to enjoy the same rights as one who has been in such a relationship for several years.

The whole issue has become so thorny that the government is now planning to revisit the clause and perhaps amend the act accordingly. In fact, Krishna Tirath, minister for women and child development, reveals that the live-in provision may be watered down in view of protests from certain sections of society. “Many members of Parliament and NGOs have expressed the view that live-in girlfriends coming in the ambit of the Domestic Violence Act promotes moral impropriety and also raises the hackles of civil society. We do not want to send out wrong signals and have to tread carefully here. We cannot upset the moral fabric of society.”

The minister revealed that a rethink was being carried out on this particular clause of the Domestic Violence Act and that a revised version of it would be presented for discussion soon.

Would this leave live-in relationships entirely out of the DV Act?

“We will have to wait and see,” she replies. “Only after certain vital issues are thrashed out through debate and discussion can we decide that.”

However, women’s activists and other experts in the field feel that a dilution of this provision would be a serious mistake. A senior police officer says, on condition of anonymity, that women are independent and conscious of their rights nowadays and a dilution — or deletion — of this clause would be unjust on women in such relationships.

The Lawyers’ Collective, an organisation that has worked towards formulating the law after intensive discussions with legal luminaries, NGOs and government officials, had taken a realistic view in this regard. It had asserted that live-in relationships were a reality in today’s day and age and that it was necessary to cater to the needs and rights of women in such relationships.

Interestingly, there have been several high court judgments in recent years that recognised the rights of women in live-in relationships. In fact, there may be legal wrangles if such relationships and the individuals involved in them are now removed from the ambit of the Domestic Violence Act.

Some feel that the clause needed to be defined better in the first place. Girija Vyas, former chairperson of the National Commission for Women (NCW), points out that in addition to saying that live-in relationships were a part of modern society, the law should have clarified when the live-in girlfriend could demand maintenance.

In fact, last year the Supreme Court did give its interpretation of the clause in this regard. A bench comprising Justices Markandey Katju and T.S. Thakur said that a couple in a live-in relationship should, among others things, have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time for the woman to be able to claim maintenance.

So what should be an acceptable time frame after which a troubled live-in relationship could come in the purview of the Domestic Violence Act? Vyas declines to offer an answer to that, though. “The issue needs to be debated before I can comment on it,” she says.

Yasmin Brar, acting chairperson of the NCW, also avoids commenting on this clause, saying that it needs to be properly discussed before any decision is taken on it. Tirath reiterates, “This is a very sensitive issue and we do not wish to take any decision in a hurry.”

Others say that the law is fine as it is. A retired police official observes, for example, that since a recent high court judgment had recognised live-in partnerships, a live-in girlfriend has every right to exercise her rights under the DV Act if she is being tortured or beaten.

Indeed, most experts agree that it would be anachronistic to leave live-in relationships out of the purview of the DV Act. A senior official in the women and child development ministry too admits that such relationships are a fact of life today and cannot be wished away. So an effective law against domestic violence would have to include such relationships.

Is the minister for wo- men and child development listening?

Some salient features of the Domestic Violence Act, which covers all domestic relationships, including live-in relationships

Any woman, who is a victim of domestic violence, can get the services of and assistance from police officers, protection officers, shelters and homes. The DV Act also empowers them to file a complaint under Section 498A.

Once the offence is established she can get the following orders from the courts:

• Protection orders to prevent the accused from committing an act of domestic violence at places frequented by the aggrieved.

• Residence orders to ensure that the woman is not alienated or disposed off.

• Monetary relief in case she incurs loss of property and also for the maintenance of the mother and child.

• Compensation orders for injuries incurred.

In Maintenance cases - Should you file appeal or revision ?

2011-07-29T14:13:00.000-07:00

The bitches and advocates in lower courts, Warangal especially hardly know the law. They recommend revision petitions instead of an appeal in maintenance cases, which is the norm, since they are paid by the wife side. Especially in maintenance cases if the woman is from warangal, most woman advocates will tell husband to file revision instead of appeal against interim orders. I can personally vouch for it. Super FIND !

THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

CRIMINAL PETITION NO.3174 OF 2011

ORDER:

Heard Sri C.Pradyumna Kumar Reddy, learned Counsel for the petitioner.

2. This matter arises under the Protection of Women from the Domestic Violence Act, 2005 (for short, the Act). It is seen that the learned IV Additional Judicial First Class Magistrate, Warangal passed an order on 3.7.2010 in D.V.C.No.4 of 2009 on his file granting a sum of Rs.10,000/- per month towards maintenance and Rs.5,000/- per month towards separate residence to the petitioner and directed the 1^st respondent therein, i.e., her husband to pay the said amounts. The learned Magistrate has also granted a protection order against the other respondents in the above D.V.C. case.

3. It is seen that an appeal would lie against the above order of the learned Magistrate under Section 29 of the Act, but instead of filing an appeal, the husband, i.e., the petitioner herein filed a revision bearing Crl.R.P.No.25 of 2011 in the District Court, Warangal against the order of the learned Magistrate. The said Court entertained that revision and it is not known under what provision it has entertained that revision.

4. Be that as it may, the petitioner herein, i.e., the husband of the 1^st respondent in the D.V.C. case filed Crl.M.P.No.354 of 2011 in the above revision seeking stay of the operation of the order of the learned Magistrate passed in the D.V.C. case. While granting interim stay in that petition, the District Court directed the petitioner herein to deposit a sum of Rs.25,000/- within a week from his order and to continue to deposit the maintenance amount and permitted the wife to withdraw it. Against that interim order of the District Judge, Warangal, the present petition is filed.

5. It may be noted that the matter is now under consideration of the District Court, Warangal and the impugned order is only an interim order. After appearance and hearing of the parties, the District Court still has to pass a final order.

6. In the circumstances, I am of the opinion that this is not a fit case for interference under Section 482 of Cr.P.C. Accordingly, the Criminal Petition is dismissed. The learned Counsel for the petitioner is also requested to find out the legal position as to whether a revision lies or appeal lies against the order of the learned Magistrate and pursue that remedy before the District Court.

_________________________

JUSTICE N.RAVI SHANKAR

15.04.2011

Tjmr

One guys plea on malehood

2011-07-26T12:06:00.000-07:00

Whoz a boy???? Must read. Everyone might have read about Mom's, Wife's and Girl's... Its time to learn something about Men...

Who is a boy / man ?

A boy/man is one of the most beautiful creations of God.

He starts compromising at very tender age. He sacrifices his chocolates for his sister. Later he sacrifices his love for just a smile on his parents face. He sacrifices his love for his wife and children by working late nights.

He builds their future by taking loans from banks and then repaying them for the life time. Thus he sacrifices full youth for his wife and children without any complain.

Believe me he struggles a lot but still has to hear the music (scolding) of Mother, wife and his boss. Yet every mother, wife and boss tries to have control over him.

Finally his life ends up by compromising for others happiness. He is that creature of God who no one can compete with.

Respect every boy/man in your life. You will never know what he has sacrificed for you. Just extend your hand when he needs it and you shall receive twice fold love from him.

Sky is the limit for our powers: SC

2011-07-22T23:45:00.000-07:00

The Supreme Court has yet again proved why they have an apex doctorate (Ph.D) in 'Organized Chaos' and 'Advanced Brain Convolution Disorder'. For the readers information - the privilege and degree is restricted to apex court justices only.

PTI | Jul 22, 2011, 09.34pm IST

NEW DELHI: Amidst criticism of judicial activism, the Supreme Court on Friday asserted that sky is the limit for exercising its extraordinary constitutional powers to pass any order in the interest of justice, even if it means bypassing statutory provisions.

A bench of justices J M Panchal and H L Gokhale passed the ruling while restoring the charge under Section 498A (harassment of wife) by husband or other family members against a police officer A Subash Babu on the complaint of his second wife.

The apex court rejected the AP high court's reasoning that since marriage of the accused with another woman during the subsistence of the first marriage was void, the second wife cannot a lodge a complaint under Section 498A.

"Article 136 is a special jurisdiction. It is residuary power. It is extraordinary in its amplitude. The limits of Supreme Court when it chases injustice, is the sky itself. Further, the powers under Article 136 can be exercised by the Supreme Court, in favour of a party even suo motu when the court is satisfied that compelling grounds for its exercise exist," Justice Panchal writing the judgement observed.

Under Article 136 the apex court can grant permission to a person to appeal against any order/judgement of the high court or any subordinate court or tribunal.

The apex court further said that in bigamy cases, the magistrate can take cognisance of the offence on the basis of a police report also and it was not necessary that there should be direct complaint from victim or some other family member.

Police say pay 10 lakhs to wife, hence writ petition

2011-07-17T07:35:00.000-07:00

HON'BLE SRI JUSTICE R. SUBHASH REDDY

WRIT PETITION No.8319 of 2011

ORDER:

In this writ petition, the petitioners have questioned the action of respondent-Police in interfering with their life and liberty by calling them to the Police Station and insisting them to pay a sum of Rs.10 lakhs to respondent No.4.

When the matter came up on earlier occasion, it was adjourned to enable the learned Government Pleader to get instructions. Based on written instructions, dated 01.04.2011, sent by the Sub-Inspector of Police, Jagityal Police Station, it is submitted by the learned Government Pleader that on the complaint of respondent No.4 herein, a case was registered in Crime No.246 of 2006, for the offence under Section 498-A of IPC, and after completion of investigation, charge sheet was filed against the petitioners herein, before the learned Judicial First Class Magistrate, Jagityal and the same is pending trial in C.C.No.2460 of 2008. It is submitted that the allegation of petitioners that respondent-Police are calling them to the Police Station and are insisting them to settle the dispute with respondent No.4, is false and that the petitioners are not required in connection with any other case.

Although the petitioners have alleged that the respondents are interfering with their life and liberty by calling them to the Police Station and by insisting them to settle the dispute with respondent No.4, there is no material to substantiate the said plea. As it is submitted by the learned Government Pleader based on written instructions that the petitioners are not required in any other case and that respondents 2 and 3 have not called them to the Police Station nor insisted them to pay Rs.10 lakhs to respondent No.4, I deem it appropriate to dispose of the writ petition placing on record such statement of the learned Government Pleader.

Subject to above observations, the writ petition is disposed of. No costs.

_____________________

R.SUBHASH REDDY, J

6^th April 2011

ajr

Trapped in matrimony net - 5 husbands -1 498A

2011-07-01T22:29:00.000-07:00

http://www.deccanchronicle.com/tabloid/hyderabad/trapped-matrimony-net-766

Raghu (name changed), an Indian working in America, met 25-year-old Deepthi Reddy on an Internet matrimonial site.

They started talking and exchanged phone numbers and email IDs.

Deepthi claimed to be a doctor and after a few days told him how she operated on poor children and asked if he could help financially. Raghu agreed and sent $1,000 for each child. Sometime later, she asked for Rs 50 lakh to help start a school for the children.

By this time Raghu and she were very close and he sent the money and asked her to marry him. She agreed and asked him to come to Hyderabad. However, landing in Hyderabad was the end of the line for him, as Deepthi had vanished.

She didn’t answer his calls, and there was no way he could get in touch with her.

Finally, Raghu went to the police. On Thursday, the Cyber Crimes CID, after investigating the case by going through the phone calls, IP address, emails and money transfers found Deepthi in Guntur with her mother.

The story doesn’t end there. After investigation, cops found out that Deepthi Reddy is married and involved with five other men. She met few more through a matrimonial site.

U. Ramamohan, SP, Cyber Crimes, CID, says, “She is a very intelligent girl, speaks good English and has gotten used to living a lavish life.”

Without any monthly income, she possessed two cars, MacBook, iPhones, gadgets and she always travels by air. With the money she got from Raghu, she rebuilt her house lavishly in Guntur. She even campaigned with Chiranjeevi and Pawan Kalyan when the mega star started his political party. She was in the same vehicle Chiranjeevi and Pawan Kalyan travelled in.

Deepthi’s story started at the age of 15 when she met her first husband, Balasubramanyam, from Tirupati, through a matrimonial website. He promised to take her to Malaysia after marriage. She married him, but then realised he had lied. She was also ill-treated by his family, so she left him and moved to Bengaluru.

There, she married Dharam Shekar, from Kakinada who was a credit card fraudster. She claims he ran away with the money they had both collected. After this was Bashweshwar with whom she was involved in cheque bouncing cases. Then came Vijay, through whom she met Chiranjeevi and Pawan Kalyan, and finally Madan Mohan who she claims, absconded with her ornaments. Finally, she met Raghu on the matrimonial website.

Ramamohan says, “She told us about her marriages, but we are still investigating. She does not seem to repent at all. She confessed and says she would have repaid Raghu and that someone will bail her out.”

Stars of badminton divorce... don't marry !

2011-06-29T13:37:00.000-07:00

Breakpoint: Jwala, Chetan divorced : June 30, 2011 Deccan Chronicle, Hyderabad

June 29: Ace badminton players Chetan Anand and Jwala Gutta were officially divorced on Wednesday. The couple told the family court that they had decided to separate as efforts by their parents and friends to settle their differences had failed. “We can no longer live together due to differences and misunderstanding. Our tastes and styles also differ and we don’t want to spoil our future further,” the couple stated. They had filed for divorce by mutual consent before the court on November 29 last year. They had got married on July 17, 2005 after dating for a few months.

“I don’t attach any importance to it. It’s normal. We have decided to separate. And it’s done. I have already started playing. Everything is going on well. It won’t have any impact on my performance in court,” said Chetan, 30, while speaking to this newspaper. When contacted, Jwala said; “Yes, I got the orders from the court today, so the divorce is official. I will obviously move on. I can’t get stuck on just this one thing. I’ve got my badminton to think about, so I’ll be focusing on my game now, especially as the World Championships are just about two months away.” The Hyderabad Family Court Judge, Ms M. Vijaya Lakshmi, granted them the divorce under section 13 B (divorce by mutual consent) of the Hindu Marriage Act. The couple had filed separate affidavits in the court stating that they were unable to live together under one roof.

Dowry case against husband who married off wife to her lover

2011-06-29T13:30:00.000-07:00

Dowry case against husband who married off wife to her lover

June 29, 2011
PTI
Meerut

Dowry case against husband who married off wife to her lover - DC

A few days after a husband accepted his newly-wedded wife as his sister and decided to reunite her with her old lover, the woman has accused the husband of harassing her for dowry.

"Aarti today (Wednesday) said that Nitish is her husband and whatever happened earlier was under pressure and accused him and his family members of harassing her for dowry," DIG Meerut Prem Prakash said.

"If her allegations are found true then a legal action will be initiated against Nitish and his family," he said.

"Aarti's family members say that they had already spent Rs12 lakh on her marriage and later Nitish and his family started demanding a car. When the demand was not met they started harassing her," the DIG said.

Nitish accepted Aarti, whom he had married on May 6, as his sister after she told him about her affair with Vineet on the night of their marriage. When Aarti told her new husband that she had already married Vineet a few days back, Nitish decided to reunite the two lovers.

Aarti and Nitish were invited by the district administration at the family counselling centre here on Sunday to sort out the issue but they turned down the suggestion of experts to live together again, saying that it was not possible as both of them had accepted each other as brother and sister. Aarti had then decided to go back to her parents' house.

Steps to counter arrest and safeguarding you and your family:

2011-06-13T00:50:00.000-07:00

Steps to counter arrest and safeguarding you and your family:

1> Section 171 of Indian Penal Code says thus: Wearing grab or carrying token used by public servant with fraudulent intent. Whoever, not belonging to a certain class of public servants, wear any grab or carries any token resembling any

grab or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both.

What you must do ?

a> Here you can demand the police to produce their identity and the warrant if they are not dressed as Policemen.

b> Call 100 or other number in your local area to see if a 'dispatch' of these so called policemen, who are at

your door, are true.

c> Call immediately your neighbours as witnesses - if possible they can start video recording. IF you know threat of arrest. make sure always you have friendly relations with your neighbour.

d> Get their identity numbers or entire ID's scanned if you have one or a scanner. Get the vehicle number they have come in. Get every detail as far as possible. Height, weight, looks, photos are best, video recordings are supreme.

e> Important thing is they will induce you to come to police station where they can torture you: The reply is if they are not local: make sure you sign or get acknowledgment in local police station diary that you have been arrested for not co-operating or whatever. Make sure you are arrested 'ON RECORD'. Thereafter, they cannot torture or violate you in front of your wife or their relatives; according to latest amendment in 2009.

IF THEY ARE NOT WHO THEY ARE:

Section 170. Personating a public servant

Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

The police who are paid or who vehemently try by bias ... you need to let it be reported.

Section 167: Public servant farming an incorrect document with intent to cause injury. Political pressure does this. Money too.

Whoever, being a public servant, and being, as 1[such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record] in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

>>Be alert, play the game...I repeat never pay a Police Officer. They are worthless. It is neither a contract or even a personal agreement. NEVER. NEVER. NEVER pay a cop.

This is good for case laws in local hign court jurisdiction or even advisories not being followed. Worst is Supreme Court orders not being followed. It results in CONTEMPT.

Section 166. Public servant disobeying law, with intent to cause injury to any person. Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Illustration

A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z's favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section.

Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code

2011-06-08T23:23:00.000-07:00

You can send this to "lci-dla@nic.in" or law commission of india where they have asked for public opinion as stated below or download at http://lawcommissionofindia.nic.in/

Questionnaire

1) a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC? What should be their approach and plan of action?

A> The Police should never be involved in the first instance. In domestic or matrimonial issues – the Police should have a role only in investigation and report. They should be absolved of their powers with respect to arrest, coercion, humiliation and corruption.

b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR? Would the objective of s.498A be better served thereby?

A> It is temporary justice in terms of wife’s vengeance seeking attitude. Long term solutions and protection of core Indian family values require the perspective of mediation and counseling. Even if that fails bitterness should be suppressed and solutions advanced by settling monetarily.

2) a) The Supreme Court laid down in D.K. Basu (1996) and other cases that the power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person’s complicity as well as the need to effect arrest. Don’t you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest?

A> The SC directions are advisories just like Home Ministries. The Police apathy should be seen and experienced to be believed.

b) What steps should be taken to check indiscriminate and unwarranted arrests?

A> A 3 month sanction of fine of the SHO’s salary and a remark of arbitrariness on his file should put the concerned officer on track.

3) Do you think that making the offence bailable is the proper solution to the problem? Will it be counter-productive?

A> Is there anywhere in the world where police or criminal justice system interferes in matrimonial discord? Where there is injury or brutality or imminent danger to life it is warranted. But where there are only allegations of not allowing to watc h TV, not giving food, tried to kill me and exaggerated allegations/accusations – it high time we put a stop to such non-sense.

4) There is a view point supported by certain observations in the courts’ judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides. In other words, the possibility of exploring reconciliation at the outset should precede punitive measures. Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be completed with utmost expedition? Should there be a time-limit beyond which the police shall be free to act without waiting for the outcome of conciliation process?

A> The Police arrest you with that statement. We are taking you for conciliation. When you reach there on a Saturday morning mostly, no counselor or whatever is present. Come Monday you are so fed of the Police and their torture – most men are willing to go to jail and end their holy matrimony.

5) Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage? Do you have a different view?

A> Already answered / stated as above in 1.

6) a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators – the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District?

A> The stages should proceed thus : Conciliation first, mediation second, arbitration third stage and final – all within 3-6 months. No need to waste judiciary time or even supreme court time. They should be put for better use – the cases are not for their entertainment in courts or for Law Commission to waste valuable time and energy in domestic issues.

b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications?

A> This is interesting question. How do you know if a person can counsel. Read Madabhushi book on conciliation and morals and law of nature. Anyone can be. If he has values for family and society. First, he should be moral. Second, he should not have legal knowledge. Third, principle of voluntary nature and self determination between parties.

7) a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counselling/conciliation, apart from according interim protection?

A> Again and again, it reverts to same. Have our courts done anything to this date other than give dates? The courts, advocates, police – as long as they have a pecuniary interest, history will repeat.

b) Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate?

A> Who framed this questionnaire ? There is no sequence or understanding as to your logic of framing these questions. I wonder what your report will contain and in what sequence.

c) Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed?

A> Ofcourse, you want to conciliate and arrest at same time? What does that mean? Investigation is analogous to arrest in India. It is not the same as Investigation. Thus, even CS/Report is also same as FIR – most (99%) are verbatim reproductions of FIR.

8) Do you think that the offence should be made compoundable (with the permission of court)?

Are there any particular reasons not to make it compoundable?

A> No court. No police. No judiciary and no LCI.

9) Do you consider it just and proper to differentiate the husband from the other accused in providing for bail?

A> Absolutely. A sister/brother staying abroad or relatives who only attended wedding. If this trend continues for just 3-6 years; don’t worry the Indian system of marriage is crumbling. Just a matter of time. In the future no one will attend weddings for fear of 498A or PWDVA or DP. Parents will partition or just legally distance themselves absolutely.

10) a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement? Is there a need for better coordination between LSAs and police stations?

A> LSA is good, so long as the mediators or conciliators have no vested or pecuniary interests.

b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages?

c)Are the Mediation Centres in some States well equipped and better suited to attend to the cases related to S,498-A?

A> In Karnataka they are doing a fabulous job.

11) What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people?

A> Why bring discord/suspicion among poor. You have wrecked middle class families by this nuisance. Now you are targeting the poor. They are not poor in terms of family values unlike dumb well to do middle class women.

12) Do you have any informations about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them?

13) What according to you is the main reason for low conviction rate in the prosecutions u/s 498A?

A> False cases. Mischief by educated women to extort husbands family for money. Doesn’t anybody see or just playing. Easier way to getout of a bad marriage or faulty marriage.

14) (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A? If so, what should be its composition and the qualifications of women police deployed in such a cell?

(b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training. In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station?

A> All the present 498A women can be recruited and all maintenance cases and harassment cases be waived/compounded; with the present system be thrown into history books and new system be evolved with only ADRS methods.

Prevention of Child Cruelty During Separation and Matrimonial Proceedings Act, 2011

2011-05-15T08:05:00.000-07:00

Prevention of Child Cruelty During Separation and Matrimonial Proceedings Act, 2011. (PCCSMPA)

(This Act is drafted by a Father who misses his sons very much. Three kisses to my sons and all the single parent children of this world on their heart, forehead and their souls. God bless them. It took me hardly 3 hours to compile and draft this – please, -anybody in government who can alleviate the countless people suffering of husbands or spouses without children -----

I even make an appeal to Law Commission of India- You even have Prevention of cruelty to animals act but you have no act for prevention of cruelty to human children. Anybody can use it, please ! – no copy rights or nothing). I can do your work for free ! I am good at drafting and expressing things. Not a single paisa I want. Please.

Most important provision is this: Let this be adjudicated before a panel of 5 advocates rotating and willing to hear matrimonial cases through the day for a fee to be paid by parties and not by state appointed presiding officers. They have too much funda and allow and entertain family advocates anyway. Parties cannot speak at all. Moreover, advocates charge when they are not supposed to charge and are just animus curiae for such petty family matters. Parties don't have anything to say before such useless bland and unsympathetic and appointed by caste politics (govt job) prick judges. The family court judges are a redundancy. Please have panel of rotating very senior (20 years above) judge advocates.

An act to codify the law relating to the prevention of cruelty to children during any period of parental separation or matrimonial proceedings. BE it enacted by Parliament in the 2011 Year of the Republic of India as follows:-

1- Short title and extent.

(1) This Act may be called the Prevention of Child Cruelty in MatrimonialCases Act, 2011.

(2) It extends to the whole of

India

except the State of Jammu and Kashmir, and applies also to Indians domiciled in the territories to which this Act extends who are outside the said territories.

2- Application of Act.

(1) This Act applies to any person who is an Indian Citizen or residing in India or any person domiciled in India or any Foreigner or Alien or Human residing in India, with the exception of S.1(2).

3- Definitions.

In this Act, unless the context otherwise requires; -

a) “Child” means –Who ever is the biological child of the parents or a child who has not attained the age of eighteen or age of majority;

b) "Competent authority" means and includes any court empowered under to exercise the powers conferred by the state government or in default the central government;

c) "Spouse" means – Who ever are married according to the personal laws of

India

and includes any biological parent or legal guardian;

d) “Separation” means and includes 'an emotional amputation' or 'a living bereavement' from the child;

e) “Cruelty” means or ‘irredeemable damage’ of the child;

f) All words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.

4- Overriding effect of Act.

Save as otherwise expressly provided in this Act,-

(a) any text rule or interpretation of Indian law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

5- Immediate Visitation Orders: -

(1) On the motion of any one of the parties, made after 72 hours of separation from the child, the competent authority must pass an order on same day as if it were a writ of habeas corpus, so that the parties can present the order before any local gazetted officer where the child is residing with spouse, to enforce the visitation order for 2 hours everyday.

6- Coaching, Vengeance and Non- Cooperation of Child during visitation: -

(1) Any proven visual or audio attempt by spouse to induce child not to interact or distance the child from the estranged spouse will attract contempt of court. The maxim ‘Res ipsa loquitor’ applies. No need of additional proof or forensic advances.

7- Child Bargaining: -

(1) Either party to a marriage may also present a petition for the dissolution of the marriage by a decree of divorce on the ground – that they are purposefully, wilfully, intentionally, and with a view to seek vengeance through getting their own back through the children, money or both; either because of spouse infidelity, or through some extraneous reasons.

7- Limbo effect: -

(1) On the motion of any one of the parties, made at the end of 3 consistent years of separation from the child, the competent authority must pass an order, within 6 months, to the effect of divorce to provide certainty to the child.

8- 2 Hour Syndrome:-

(1) On the motion of any one of the parties, made at the end of 3 consecutive meetings and having a feeling that the child or children show signs of boredom, be enhanced for a full 24 hours or 48 hours as per satisfaction of the court.

9- No child court visitation:-

(1) Notwithstanding anything mentioned in any of the Indian personal laws, children should never be brought to court either for visitation or mediation or conciliation or negotiation or whatever reason is.

(2) Should the need arise, for the presiding officer to consult with child, it should be only in chambers without either biological parent.

(3) If children are brought to court, adequate provisions relating to and in conformity with an international school be provided with respect to their play, food, toiletries, and extra curricular activities. They should never be irredeemably damaged because of lack of provisions or stench or other court odours.

10- Poisoning of child minds: -

(1) Every spouse who poisons or intentionally fills the child’s mind with bad thoughts, deeds, acts, commissions or omissions of other spouse which is not true in the mind of the child is guilty of poisoning the mind of a child.

11- Punishment for contravention of certain conditions of spouse child cruelty.

(1) Every person who of himself or herself to be bound under this Act in contravention of the conditions specified in clauses (x), (xxx) and (xx) of section x shall be punishable-

(a) in the case of a contravention of the condition specified in clause (x) of section x, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one month last drawn salary, or with both;

(b) in the case of a contravention of the condition specified in clause (x) or clause (x) of section x, with simple imprisonment which may extend to one month, or with fine which may extend to one month last drawn salary, or with both;

(c) Upon a breach or wilful injury, a fine not exceeding Rupees Twenty Five Thousand or one month last drawn salary, which ever is higher, of the spouse must be payable to injured party.

(d) On the default or breach of any order passed by the competent court, a brief report of events, actualities and reasons are to be countersigned and attested by a gazetted officer, in the local area. Should the facts be proved and to be decided, within 2 days, the defaulter or problem spouse is to be fined the cost of travel or other incidental expenses, not exceeding one month last drawn salary.

(e) In the case of misleading the court, when brought to notice, a fine payable to spouse not exceeds the then rate of determined salary of 3 months.

Police Interrogation or Statements under 161 Cr.P.C

2011-04-12T00:38:00.000-07:00

Read this stuff carefully :

Don't be fooled by all the sayings that if you confess before the Police, then you are damned. That is hardly the truth. This is with respect to IPC 498A or PWDVA cases only.

- Always admit whatever is there in the complaint. Make blanket statements before the Police... yeah all is true. Generalize, because all are circumstantial.

- Give all false data. If your working in Satyam - Say you are working in IBM with a straight face.

- Do and say everything so that you or your family are not threatened or abused.

- Influence them by parting token amounts and get them to deliver water, use of toilet, biryani or whatever. Pay only for service.

- Be positive with Police, they have been bribed.

- Do not pay a single paisa, pay nominally.

- Once you fess up and they know you got money, they will intimidate and try to extort you.

- If you are arrested on pretext of compromise/counseling... forget any amount that you pay to cops ... just think it has washed down the gutter. They MUST and are obligated to produce you before a JFMC (Magistrate).

- Make sure your body language suggests that you better of in jail. You are mentally prepared. In fact, Jail is much more comfortable and a learning experience. enjoy the fresh air and the loads of time, you can appreciate life and see from a different perspective.

- You have right to attorney and MUST be produced within 24 hours before a Magistrate - even if they arrested you on Saturday. Meaning they have to take you to the Magistrate's house or quarters to be remanded.

- The Indian Police proceed mechanically, but, then, that is the process in Andhra Pradesh. Remember, they are hardened criminals, who take Rs.200 from every prostitute in their area/jurisdiction... May be rates have gone up considering inflation now.... I repeat - every prostitute to fund their families extravagance and ego.

- Remember the mosquitos. Personally, I prefer getting arrested in Dec-Feb types because of the cooler weather in most parts of AP.

ANDHRA PRADESH FAMILY COURTS (HIGH COURT) RULES, 1995

2011-03-22T22:40:00.000-07:00

According to this rules Legal Practitioners may be permitted to appear as amicus curiae only and not as a PAID vakil with vakalatnama --so protest appearance of any advocate vehemently, they come only to watch some fun in the family courts.**********************************************

Roc. No.78-A/SO/95:- In exercise of the powers conferred by Section 21 of the Family Courts Act, 1984 (Central Act 66 of 1984) the High Court of Andhra Pradesh hereby makes the following rules to regulate the proceedings for the Family Courts in the State of Andhra Pradesh.

1. (a) Short Title:- These rules may be called the Andhra Pradesh Family Courts (High Court) Rules, 1995.

(b) Commencement: These rules shall come into force, with effect from the date of publication of these rules in A.P. Gazette..

(c) Application: These rules shall apply to the Family Courts established in the State of Andhra Pradesh under Section 3 of the Family Courts Act, 1984.

2. Definitions:- In these rules, unless the context otherwise requires;

(a) 'Act' means the Family Courts Act, 1984.

(b) 'Court' means the Family Court established under sub-section (1) of the Section 3 of the Act.

(d) 'Petition' shall include an application under Chapter-IX of the Code of Criminal Procedure, unless the subject mater or context otherwise requires.

(e) All other words and expressions used but not defined these rules and defined in the Act or in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973, shall have the meaning respectively assigned to them in the Act or as the case may be.

3. (a) The working hours and sittings of the Family Courts shall be as determined by the High Court in their application to the Civil Courts, except that the High Court shall fix in each calendar year the working hours and sittings of the Family Courts during vacations and holidays.

(b)The place or places where the Family Court shall sit shall be as specified by the High Court from time to time by an order in this regard.

(c) The family Court shall hold its sittings in open or in camera as determined by it in each case, but shall hold the proceedings in camera if either party so desires.

(d) The Family Court may hold its sittings outside normal working hours and on holidays if the Judge of the said Court considers it necessary to do so in the circumstances of the case, with the prior notice to parties, and to such other person or persons as the Judge may considers it necessary.

(e) Notwithstanding anything contained above, if in any particular case the Judge is of the opinion that it will tend to the general convenience of the parties or of the witnesses or for any other parties to hold its sittings at a place other than its ordinary place of its sittings but within its limits of territorial jurisdiction, the Judge may do so for reasons to be recorded in writing and prior notice to all parties and to such other persons as the Judge may consider necessary. The Judge shall intimate the High Court about such sittings soon after a decision is taken in this behalf.

(f) The Family Court shall function on all days throughout the year except on authorised holidays as declared by the High Court.

(g) The Subordinate Courts calendar shall be the calendar of the Family Court except that there will be no vacations.

(h) No act of the Family Court shall be invalid for holding or continuing its sittings at any place of its choice on any holiday or outside normal working hours when such sittings is informed to the parties in advance.

4. All proceedings before the Family Courts shall be instituted by a petition in Form No.1 appended to these Rules, duly verified by the petitioner.

5. All interlocutory applications in the proceedings already instituted shall be entertained if verfied by the applicant in the manner as in Form No.1.

The petition in Form No.1 or any interlocutory application shall be in any language in Schedule VIII to the Constitution of India. There shall be no Court-fee or any other fee in respect of the petition in Form No.1 or any interlocutory application in the proceedings before the Family Court.

6. Notice of the proceedings including in any interlocutory application shall be issued in Form No.II appended to these rules along with a copy of the petition or the application as the case may be.

7. The Court shall ordinarily fix a date atleast three weeks from the date of ordering notice for the appearance of the opposite party. The Court can fix any later or earlier date if the proceedings so demand.

8. The provisions in Order 1 of the Code of Civil Procedure for addition of a necessary party or a proper party shall be applicable to a proceeding before the Family Court.

9. Proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be allowed to appear only as amicus curiae, if the Court finds it necessary in the interests of Justice, and the fee, if any shall be paid to him as prescribed under the Rules framed under Section 23 of the Act.

10. The Court shall record only the substance of what the witness deposes and prepare a memorandum accordingly which shall be read and explained to the witness and the memorandum of the said substance recorded by the Court shall be signed by the witnesses and the Presiding Officer of the Court and shall form part of the record. The evidence taken on affidavit, if any, shall also form part of the record of the Court. The Judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.

11. The Court shall furnish to the parties to the proceedings before it a copy of the judgment certified to be a true copy free of cost.

12. Appeal under Section 19(1) of the Act shall be in the manner of appeals against the original decree or order in a civil proceedings, but there shall be no Court fee payable for the appeal.

13. The Rules framed under the Guardians and Wards Act, 1890 by the High Court and published in Andhra Pradesh Gazette II, dated 11-2-1993 shall be applicable in matters relating to Guardians & Wards Act, 1890 to the extent they are not inconsistent with the provisions of the Act or the Rules framed thereunder.

14. Application for Guardianship:- All petitions for guardianship other than applications over which the High Court has jurisdiction, shall be filed before the Family Court.

15. Contents of the Application:- Every petition for guardinship, when it is by a person other than the natural parent or natural guardian of the child shall be accompained by a Home Study Report of the person asking for such guardianship and his/her spouse, if any, prepared by an approved Association of Social Welfare Agencies etc., or a suitably trained social worker, from the list of agencies and/or persons for the purpose of their association with the Court approved by the Government in the rule made under Section 5 of the Act, in consultation with the High Court.

16. In case of a child placed in guardianship the Court may, at any time direct a counsellor attached to the Court to supervise the placement of the child and submit a Report thereon to the Court in such manner as the Court may deem fit.

17. A Child study report of the child proposed to be taken in guardianship together with a photograph of the child should be filed in all petitions for guardianship, as required under Rule 23 of the Rules framed under the Guardian and Wards Act, 1890. Such report shall be in Form No. 3 prescribed in the appendix when the child is institutionalised or Court committed. The report shall be countersigned by the Petitioner.

Catch 22: Caught between mother and wife

2011-03-21T22:23:00.000-07:00

In the first half of a two-part series, clinical psychologist Salma Prabhu advises men on how to keep mother and wife happy

There must be a grain of truth in all those anti-marriage jokes men crack. If you're caught between the woman who raised you and the woman you have to spend your life with, you can pry yourself from between the rock and a hard place using diplomacy. Before cracking open a box of butter, pay attention to the advice clinical psychologist Salma Prabhu has to give on balancing the two important women in your life.

Understanding ties

Mother:

The mother is the first woman a man comes in contact with. A boy worships his mother until he weans himself away in adolescence. "A hen eagle makes her nest out of thorns and prickly material so that the chicks don't get too comfortable and fly away soon," says Prabhu. It's commendable parenting technique because if a man is unable to take decisions alone it reflects upon the mother. Such a relationship could become overly protective and hamper growth. A mother credits herself with your creation and now has to share you with someone younger and prettier. She wants to see you happy and fulfilled, but she does feel pangs of jealousy too.

Wife:

Your partner in crime and life, you both are going to raise children together, send them off into their own lives and grow old together. The foundation for this relationship is set before marriage by getting to know each other very well. A wife feels like she has left her parents, friends, old life and sometimes country to be a part of yours and thus has high expectations.

Prepare the ground

Respect is the most vital element in balancing both these relationships. Your mother loves you unconditionally and will ignore disrespectful behaviour, but a wife has expectations and cannot forgive transgressions. This is the key to ensure that both women have equally important, and separate, roles to play in your life.

- Before marriage, spend time to get to know your wife-to-be better. Take interest in her work and friends. - Ensure that your mother has no reason to feel insecure because of the new woman in your life. Continue traditions such as hugging her before going to work, taking her out for ice-cream, or simply talking about your day when you get home.

- Take your mother's advice and help in making your wife feel comfortable in her new home. This will make her feel involved in your life. The wife will see your mother as a pleasant facilitator and not an enemy.

- The kitchen is a common war ground, but it need not be. If your mother likes cooking something for you, let her. Encourage your wife to prepare something that she is good at.

- Do not praise the one's cooking in front of the other. Appreciate and thank each one of them separately. Even if it's a small gesture like getting flowers, buy them for both women.

- Appreciate your alone time with your mother and set it into a routine. Have dinner with her when your wife is having a girls' night out. » Do not talk about one to the other when you are alone. Listen to them equally, but badmouthing them will give the other the license to do the same and feed the animosity.

- Do not exchange what one has said about the other. If you find the complaint logical, do some research and nip it in the bud in your own manner.

- It will be of great value to say 'I love you' to both of them frequently.

- Never lose your temper at one in front of the other.

- When both of them are arguing, encourage them to communicate and deal with it in their own way. Step into it only if it gets aggressive and you feel you are capable of dealing with it.

- Never make fun of your wife's profession or family in front of the other.

What to say

Communicating ground rules firmly and repeatedly will work better than having loud fights. Do your homework and set boundaries for both.

- Convey to your mother that your wife is capable of taking appropriate decision regarding dressing, socialising, spending money, raising children and visiting parents, and should be left alone in these matters. If you have problems in either of the above areas, you can talk about them with your wife, without making your mother a party to the conversation.

- Similarly, communicate with your wife about quality time with your mother and allowance (if she is financially dependent). Explain to her about duties she has undertaken for decades (in case of a joint family) and tell her not to interfere with them.

- If your wife intends to pursue a career after marriage, and your mother hopes to have some help with the housekeeping, resolve the situation before collision. Suggest hiring household help for your mother and make it clear that your wife needs rest when she returns home and enjoys a social life as well.

Mitali.Parekh@timesgroup.com

Srija Divorce and Dowry Complaint

2011-03-16T02:17:00.000-07:00

This one is definitely mental. She could have as well walked out from a bad marriage IF what she alleges is true. She has once again shamed the great man( is he or is he just a f'n opportunist prick?). Chiranjeevi is screwed up and his family is totally screwed up. They must be on drugs. What a shame ! I wonder how he will gracefully solve a problem which no one has been able to solve. Only the people can change this country - not any politician. This man smells and needs to be quarantined immediately.

Sirish and his family should approach Save India Family. SIFF who have all along have been complaining about this stupid and unjust screwed up law as coined by Supreme Court as 'Legal Terrorism'.

Srija cites abuse, goes to police

March 15, 2011
Hyderabad

March 14: The PR leader, Mr K. Chiranjeevi’s daughter, Ms K. Srija, on Monday lodged a complaint with the Central Crime Station women police against her husband, Mr Sirish Bhardwaj alleging that she was ill-treated physically and abused by her husband and mother-in-law.

They had eloped and married in October 2007 without the consent of Mr Chiranjeevi’s family. Srija was 19 then, and Sirish, 22. The commissioner of police, Mr A.K. Khan, said, “We have received the complaint lodged by her and we have registered a case under the Dowry Harassment and Dowry Prohibition Act.”

The police said that Ms Sirija alleged that her husband and mother-in-law had been harassing her and had physically assaulted her. She had recently re-registered all properties that were in her name back to her parents’ name. “She has alleged that this re-registering of properties in the name of her parents irked Sirish Bhardwaj and he started harassing her more,” said a senior police official.

In her complaint Srija alleged, “He started harassing me after an year of marriage. As I had married against my parents’ wishes and we are blessed with a daughter, I kept quiet. As Sirish is always expecting money from me I felt insecure and transferred all my properties to my parents. Later, the harassment increased and they kept a watch on my movements. I tolerated all this. Recently during my cousin Allu Arujn’s marriage, they called me several times to know my whereabouts. A week back he asked me to get Rs 50 lakh and after that I came home and didn’t go back. My mother-in-law was supporting him in this.”

Mr Bhardwaj is currently a member of Central Board of Film Certification Regional Office.

Now, Warrant must to arrest for offence punishable for less than 7 years.

2011-01-28T04:46:00.000-08:00

HYDERABAD: Along with the advent of new year, 2011, a strange thing happened in Nampally court in the first week of January. When Hyderabad city police did a routine job of producing a youth in court on charges of petty theft, his lawyer K Surender told the court that the arrest of his client was illegal as it was against the provisions of a newly-amended CrPC Act-2008 that came into force at the end of 2010.

The cause he showed for this was that the police did not obtain an arrest warrant from the court prior to the arrest as mandated by the new law. The magistrate verified with the circular available with him that was sent to him by the AP High Court and found that what the counsel said was right and let the accused off then and there itself.

On Saturday, when several TV channels began beaming stories about the new law and also certain incorrect notions about the new law, the DGP office issued a press note clarifying that the CrPC Amendment Act had not made any provisions for release of arrested persons on bail. It only stipulated that the police officers have to give sufficient reason while requesting for remand of the arrested persons, the note said, acknowledging the fact that they have to go by the new law now onwards.

To put it in simple terms, police cannot straightaway arrest people in offences like cheating, theft, forgery, etc., which are punishable up to seven years of imprisonment only. They have to convince a court and obtain a warrant of arrest to do so. Prior to that they have to issue a notice of appearance before the police to the accused. If the accused fails to comply with the notice, then he is liable for arrest. But then, the police officer has to identify himself clearly and get an arrest memo countersigned by one of the relatives of the accused before making such an arrest.

The amended Act also gives several rights to the arrested person like having an opportunity of meeting a lawyer of his choice during interrogation, though not throughout the interrogation. These and many new provisions have been brought into force now.

Speaking to TOI on the new law, state public prosecutor Vinod Kumar Deshpande described this Act as a new piece of legislation that prevents illegal detentions. The provisions incorporated in Sections 41 A, 41B, 41C, and 41 D of the Act give relief both to the people and to the police also. Apart from providing several protections to the personal liberty of a citizen, the new law also prevents unwarranted criticism against upright police officers who go strictly by the rule book, the PP said.

Moreover, the state has to now set up a police control room in every district and has to display the names of the arrested, the names of those police officials who effected these arrests and the details of the cases, Deshpande said.

This new law will also prevent third degree methods because it is now mandatory for the police to get the accused examined by a government doctor immediately after the arrest, he said. This will help the accused in two ways. The doctor's version will carry the date of his arrest and the condition of the body of the accused after the arrest. This way there cannot be any delays in producing the accused in the court, he said.