Retrospective Clause in DV - Strategy

Well guys the retrospectiveness of DV has been a controversial topic of late. And the law being silent about it, the judiciary uses it to its own whims and fancies most of the times which are biased against men. Alleged acts of violence committed prior to 26th Oct 2006, the day the devilish DV law came in effect, are made part of petition and cases are getting registered.
But retrospectiveness in law is a serious issue and allowing retrospective matters in admittance of cases can have serious implications. As technological advances follows Murphy’s rule, newer dangers are also getting exposed and newer legal provisions can also come into effect. What was legal now can be illegal later, so do we book all those persons who committed a hitherto legal, but hence illegal action deemed as offense? Rationally and logically, No.
Coming back to DV, prior to it being enacted, calling names to wives was not an offense and some husband might have called his wife with some name, either out of love and affection or in a fit of anger, which even the wife must have done. But since DV outlines it as an offense only for the husband, allowing retrospective clause in DV law, all wives can book their husbands under DV and 100 % marriages will break. So retrospective clause is not healthy from a social and a futuristic standpoint of legal consideration.
Again arguing that DV does not attract penal consequences and the same arise only when protection order is violated and that offense will not be retrospective, then it must be remembered that in first place, case should not have registered, so no protection order should have been passed. So no possibility of commission of offense if retrospective clause is not defined for DV. But since the court has allowed it, it is also an equal party to the offense and should share the penalty!!! What an absurdity?
http://judis.nic.in/chennai/qrydisp.asp?tfnm=13665
Hence taking a cue from the above judgment and using the aforesaid logic, we can develop a strong petition to challenge retrospectiveness of DV and challenge any such summons under 397 CrPC and bring the case to a halt.

Also specifically,

DV Cannot be used retrospectively

1)SLP(C) No.25219 of 2004 delivered by the Honorble Supreme Court of India where in it was held Penal Statutes (Acts) which create
new offences are always Prospective

2)1993 Crl.J 2636 delivered by Honorble Allahabad High Court where in it was held the accused was acquitted for the offences
punishable u/s 304B as the dowry death took place prior to the commencement of the act 304B.

Domestic Violence Lanmark Judgements

1) Crl.P 3714 of 2007 delivered by the Hon´ble High Court of Andhra Pradesh where in it was held "It is a fundamental principle of law that any penal provision has no retrospective operation but only prospective. There is no allegation either in the report or in the statement or in the complaint on the 1st Respondent with regards to the acts of domestic violence that took place on or after 26-10-2006.Therefor e continuation of proceedings against the petitioners is nothing but abuse of process of court".

2) I (2008) DMC 1 delivered by the Hon´ble Madhya Pradesh High Court held that "" Complaint for this offence can only be filed against adult male person and further held in 3( C ) that as provided by sec 2(q)of the act, such application u/s 12 of the act can´t be filed against petitioner´s who are ladies ".

3) 2007(2) ALT (Crl.) 504(A.P) delivered by the Hon´ble High Court of Andhra Pradesh where in it was held "as there is no claim made against the other respondents, continuing process against them is a clear abuse of law".

4) I (2007) DMC 1 (SC) = 2007(3) ALT (Crl.) 1(SC) delivered by the Hon´ble Supreme Court of India where in it was held"claim for alternative accommodation can only be made against the husband but not to the In-laws".

Some scenarios & caveats in cases involving two states w.r.t AB & Bail

Some technical issues and redundancy in applying for AB in mumbai is that if at all they want to apply at Mumabi, it will have to be in HC, Mumbai(expensive first of all). Why it has to HC and not any subordinate court(sessions, magistrate etc) , since HC is the only court which is above the bangalore magistrate court even though not directly above, HC mumbai is still hierarchically above the magistrate court , bangalore where the case must be(or is it a district court/JFMC/FMC court etc).

Plus HC mumbai will be(may be) reluctant to give the AB, since even though it has the powers to grant bail(hierarchically) its foot is not so firmly planted jurisdictionally. As it happened in my parent’s bail in Kerala HC(the original case was filed in Mumbai(Mulund Magistrate court)- the other party came with glycerin and women police(from mumbai) and vehemently opposed the AB. The lady(bitch) police(CI rank!) from mumbai was shouting at the HC kerala judge and he was chickening & pissing right there on his high seat. The AB was denied on the grounds that "Mumbai police wants custodial interrogation of the accused seeking AB, and since granting AB will compromise the chances of recovery of the misappropriated property(stridhan)"- we too had 406 on us like Abbas’ has now.

Those being the technical aspects of inter state scenarios like Abbas'(and earlier mine too)

The redundancy is that Transit bails are not granted, more often than not, for periods long enough(in which it can be expected that the regular bail can be obtained at the other state court, in this case, bangalore), and hence it may be required to take another AB in Bangalore, before the regular bail comes up for hearing at the Bangalore court.

So its always better to get the AB from the court where the case is going on(or the sessions court above it, if one suspects collusion at the magistrate court level). But its our natural tendency to be scared about the other parties 'playground', here bangalore, the thoughts of whether they will be able to influence the judge to deny the AB etc. But that’s where the SIF network in bangalore can help , by referring lawyers with irresistible 'face-value'/’currency’ in that particular court where AB is planned to be filed for.

But the chances of an other state HC granting AB, in face of the “jurisdictional dilemma” becomes slim(this dilemma is only in the mind of the judges, and that too if the other party comes to know and opposes in the AB hearing, in collusion with the PP/bangalore Police(both are parties to an AB case, as they represent the State who is the complainant... as in all criminal cases).

I had , I guess, mentioned these points briefly in my telecon with Abbas but just reiterating this for the benefit of others as well. But what I said above is not to be generalised, especially since Mumbai courts/judges are down right consumerists!(money gets whatever u want!). So all said and done u may get a Transit AB valid till the cows come home!, but its ones duty to ensure that the lawyer will deliver on getting enough time validity for the transit AB so that Abbas' family can straight away apply for regular bail at Bangalore(without having to apply for another AB at Bangalore, due to short validity of the transit AB).

If Abbas' case was in Mumbai, I would have taken his parents to the police station one day morning(after a reliable kingpin sets-up the IO and SHO, etc.) and make them present the parents at court by 11am, and get the regular bail itself by 1pm!(setting up the magistrate) - Making the process of ABA itself redundant... but I don’t know whether in Bangalore this is possible and whether we have such kingpins to liaison with the Police and Judge for the "Settings"(as its lovingly referred to in Mumbai).

This may look scary but this is what I had to do for my parents, after their bail got rejected in HC Kerala(since for me, applying for my parent’s AB in HC, mumbai after this was dicy, since both the HCs are in the same level, and one HC won't 'like' to over rule the other(horizontally in level) HCs ABA denial. So my only option was the SC for ABA!!!, where my ex’s Uncle was a top lawyer and who was waiting to pounce on us the moment we approach SC!!!).

This risk is there with Abbas' case too: That’s if he applies in Mumbai HC and it, god forbid, gets rejected, then the Bangalore HC will think twice to give AB, and no lower court(in bangalore) will have the power to grant an AB, which was rejected by an HC(mumbai in this case).

So these are the scenarios in these kind of cases. No hard and fast rules, but these are the general caveats one should be aware of while decision the road ahead in such cases(involving 2 states , like in Abbas’ case)

Regrds
Gokul
PS: Now I have to blog this at http://bok498a.blogspot.com (of course, with personal details blanked out), lest I feel wasted writing so much for benefit of only a few of us.

Virag wrote:
Hi Abbas,

Misuse of 498A is like a disease and is spreading everywhere like a virus. So you are not the only one.There are thousands of families being affected by this.

So gear up to fight this misuse as this is the only way out. First of all, your parents need to file an Anticipatory Bail (AB) in Mumbai and remain in hiding till it is obtained. Gokul, Jinesh, Rakesh in Mumbai can help you in getting AB in mumbai.

The answer to the question, whether AB should be taken in Mumbai or Bangalore is as follows:-

Let your parents take an AB in Mumbai first, they being residents of Mumbai, it will be easy there. As the remote police team (Bangalore) cannot make an arrest without the local team, and the local team will not be able to arrest as your parents have a local AB, so the local team will have to present your parents before the jurisdictional magistrate who will give a Transit Bail for 15 days, within which your parents will need to apply for Regular Bail (RB) in Bangalore.

Once they manage to get the bail, consider yourself as 90 % victorious as the whole drama in a 498a case is around this bail/jail drama only.

About transferring your case to Mumbai, it will be next to impossible for :-

1) You have to go Supreme Court for the same.
2) Criminal cases are not transferred out of jurisdiction until and unless there is a very compelling reason to do so, as the alleged torture has happened at Bangalore, jurisidiction is Bangalore.
3) Expecting transfer of case in 498a at husband's / in - laws' place is not advisable. So do not think on those lines.

Rather than that your case has strong grounds for Quashing, so after you manage to get bail for your parents, prepare for quashing.

Right now, the best thing for you is to have patience, resolve and firm to fight the case and for that you will need knowledge, so

1) Join SaveIndianFamily yahoogroups at

2) Read this properly Survival Kit to 498a

About actions to be taken post bail, we will discuss further, after hearing from you whether you are looking for a quick fix or ready to give a tough fight.

Marking this mail to Arnab who is in US and an active member at Save Indian Family.

All the best.
On Sun, Aug 10, 2008 at 2:10 AM, abbas wrote:
I live in ********. I am originally from Mumbai, India. My wife is from Bangalore, India. She lived with me in India for 3 days in Bangalore, and 6 days in Bombay with me and my family. She left me when I was still in Bombay, and went to Bangalore. I left for the US after 5 more days in Bombay. She claims I hit her and demanded dowry in these 6 days in Bombay. My parents have been implicated too. Arrest warrants have been issued against my father, mother and myself. Police had come from Bangalore to arrest. Luckily my parents were not at home. They are avoiding arrest now by living elsewhere.
I am in the USA, so its not about me. Its about getting my parents out of this. They have to go to Bangalore, where the case is filed. Their family has a very strong presence there. I want to avoid them travelling to Bangalore.

Please help!!

- Abbas




--- On Thu, 8/7/08, Gokul P.R wrote:

> From: Gokul P.R
> Subject: Re: 498a victim
> To: abbas
> Cc: "Virag" , "Binoe Manuel" "Gorky" , "Bharati"
> Date: Thursday, August 7, 2008, 11:27 AM
> Hi Abbas,
>
> I am Ccing this to activists in Bangalore who you can
> call up and take tips about the situation in bangalore, as
> discussed in our telecon. For their info please reply with a
> brief write-up about ur case(about 1/2 a page is enough for
> getting the outline).
>
> I would recommend that you join SIF(saveindianfamily)
> yahoo group: http://groups.yahoo.com/group/saveindianfamily
> , where you can post your specific queries and can expect to
> get replies from the 3300 odd members in this group, who are
> highly passionate about fighting this kind of misuse of law
> and are knowledgeable than even an average advocate. The
> message archives of SIF yahoo group also will be helpful in
> getting more insight to any kind of legal situation that you
> may be in(you can search with Keywords related to your
> case).
>
>
> All the major judgements/citations that you may need is
> here: www.mynation.net and
> http://www.498a.org/forum/viewforum.php?f=16&sid=1592eb0eed276fe804822de5daf4db2a
> .
>
> Refer
> http://ipc498a.wordpress.com/2007/07/01/the-498a-survival-kit/
> to read about how you can fight misuse of 498a.
>
> See the attachment for some links and resources which
> will help you to research solutions yourselves. Also call
> the helpline numbers near to you( given below) and meet the
> local group at their weekly meetings(they have several local
> groups in US too).
>
> In the meanwhile go through some blog posts I had written
> about counter cases and using the Joginder Kumar Vs State of
> UP judgement for getting a fair investigation done in your
> case, as discussed in our telecon.
>
> See:
> http://at498a.blogspot.com/2008/05/impending-498a-send-this.html
> -> This is the petition I had mentioned about in our
> telecon, you can send this to the Commissioner of police,
> Prime Minsiters, Law Minister, etc., keeping the Senior of
> the bangalore and bombay police station and the
> Investigation officer as "Copy to", seeing that u
> have sent your petition to these many higher ups the police
> stations guys will behave, thats the logic(not that these
> higher ups care a damn!)
>
> Also see:
> http://bok498a.blogspot.com/2008/07/post-498a-getting-fair-investigation.html
> ,
> http://bok498a.blogspot.com/2008/07/counter-cases-during-and-after-case.html
> and
> http://bok498a.blogspot.com/2008/06/first-strikers-advantage-live-saving.html
> For Free Advise, Call our help-lines worldwide Help-Line
> Numbers.
> Mumbai: 9869323538, 9821414336, 9224335577, 9820056091
> Nagpur: 9890974788
> Nasik: 9371988132, 9822011250, 9890656219 Pune:
> 9923056460, 9922379103, 9850883751
> Delhi: 9911119113, 9891369616, 9811624141 Calcutta:
> 9231835462, 9830151555, 9830927619
> Kanpur: 9839038424, 9335014984,9935239764 Bangalore:
> 80-65334135, 9845986250
> Jaipur 9352562456 Kerala 9895557765, 9995433034,
> 9995308518 Gujarat 9825365816, 9898989884 U.S.A
> +650-430-9544, +612-812-4340, +917- 512-5362 Kuwait
> +965-3869295
> More helplines at: http://mynation.net/contact-us &
> http://www.savefamily.org/index.php?Itemid=65&option=com_content
> In return we just need to raise your voice in whatever
> way possible so that we can together see the end of this
> legal terrorism in families, which is the real strength of
> India(and may be thats why families are being systematically
> targetted and broken down by vested interests!)
>
> Warm Regards,
>
> Gokul, http://gokul.go.to, 9821414336(Mumbai)
> Editor - www.siftimes.com , Director- www.pifngo.info
> Protect Indian Family: "For Family Harmony.. Against
> Legal Terrorism"
>
>
> abbas wrote: Hello Gokul.
> Thank You so much for your excellent advice. I am under a
> lot of stress currently, and my parents more than me.
> These are the charges against me and my parents:
>
> 498a
> 506tpc
> 406 da act
>
> Thanks again for listening.
>
> - Abbas



--
Thanks & Regards
Virag
Reality is merely an illusion, albeit a very persistent one.
http://www.siftimes.com
http://www.savefamily.org
http://mynation.net
http://legalfighter.blogspot.com/
http://crusader-magicofmind.blogspot.com/
http://crusader-indianjustice.blogspot.com/
http://feministindia.blogspot.com/
http://legalfighter.wordpress.com
http://www.merinews.com/allArticles.do;jsessionid=BD553EEC98EAF167806C6437009FFBE6?choice=ByUser&pageNo=1&userId=crusader

Attempt to frustrate RTI Applicant with bogus replies

More recently, bureaucrats and sarkari babus have found a very unique way to hide their inactions and inefficacies in maintaining organized crime information. An RTI activist from Delhi had filed an RTI application to know the following,
1. Report of cases related to 498A with following details for each police station wise for each district of national capital territory of Delhi from 01-01-2007 to 31-12-2007.

a. FIR no /Other IPC sections included along with 498a
b. Case filed date
c. Brief summary of case
d. Complainant’s name, age, qualification, occupation,
e. Every accused names, age, qualification, residential address, occupation and sex.
f. Arrested (how many days in remand) or Anticipatory bail (session / high court)
g. Current status of the case. If trial completed then names of people got convicted and what is the conviction.
h. If a case if found false in trail or FIR stage, what action was taken against complainant, people/police who filed/helped in filing that case?

2. Statistics of 498A cases with following details in following format in zone/district wise
a. No of 498A cases filed in each zone/district, year wise from year 2005 to till date
b. Total no of 498a cases when daughter in law is alive
c. Total no of 498a cases after death of daughter in law
d. Total No of accused when daughter in law is alive
e. Total No of accused after death of daughter in law
f. Total No of people got arrested
g. Total No of people who got anticipatory bail
h. Total No of accused who are women
i. No of cases found false at FIR stage
j. No of cases found false at Trail stage
k. No of cases got convicted when daughter in law is alive
l. No of cases got convicted after death of daughter in law
m. No of people got convicted (MALE/FEMALE)
n. How many cases are filed under dowry prohibition act 3 for giving dowry

The gist of the reply that the applicant got was something like; The Ministry of Home Affairs divided the task into all the DCPs of the Delhi Region and asked them to reply separately. Each of the DCPs either presented the information in a much distorted form requiring time consuming data analysis and data collation, while others clearly stated that such information is not maintained by them per se and need to personally inspect the records for which the compensation has to be paid by the applicant to the tune of Rs. 24, 332 and Rs. 25, 224 as demanded by 2 of the DCPs which means a total of Rs. 49, 556.
This is atrocious for the following reasons:-
1) Police department is a public department, meant for public service, being funded by the tax payer’s money and RTI Act lays down guidelines for access to public information and has held the government officers accountable for the same to provide info as it is a citizen’s fundamental right. And demanding money for a task which falls within the ambit of police duty from a citizen is sheer insult and lack of recognition of a citizen’s basic rights
2) In light of the information asked, it is very clear that only the records which ought to be maintained by police are being sought for and failure of the police on part of non maintenance of such records only reflects the inefficacies of the police and the police is demanding money to cover its own follies which is nothing less than atrocious.
3) It is a well known fact that IPC 498A (Dowry harassment law) is widely misused to the tune of 98 % and the police is not only well aware of the situation, but is also hand –in – gloves to promote the misuse owing to its own corruption and with these replies, attempting to abstain from giving information and frustrating the applicant, only justifies the role of a corrupt police force in advocating this misuse.

Winning attitudes - Courage & Problem-Solving(Stand up & Fight to finish)

Hi XXXXX,

Whatever happened is for good, whatever is happening is for good, whatever will happen also is for good.

You "WERE" like what you mentioned below, you contacted us, some of us wrote back- all for good.

You have to invoke your survival instincts, thats what Vinayak had tried to catalyse, and thats super good. This group is a bootcamp for 1) learning to use ones own fears to excel 2) to chanelise ones own rage positively and hence to never ever give up and to never die on one's knees 3) to spread the fire of revolution to newbies far and wide 4) to realise ones true calling and to learn the joys in doing so - the way to these achieved are not easy or soft, so don't worry if you get spanked during induction training!- because its all good.

Without u urselves invoking your fighting spirit and problem solving attitude there's nothing we as third parties can do- we can tell u a thousand ideas to crush your aggresor(s) but u wont be able to implement any of these ideas, until such time you STAND UR GROUND & FIGHT(after ackowledging the root causes and contributing factors , in your case these are 'Sadistic' mentality of your wife and you being "too soft" on even your aggresor which is feeding the aggressor's confidence even more). See this video for possible inspiration http://www.youtube.com/watch?v=3koC6v9VHyk .

You may not realise how important it is to first "Pick Yourselves" up and then solve your problem one by one(like you would have done with your Mathematics Question papers).

The best way to get inspired to do all this is to meet the SIF-Chennai group in one of their weekly meetings, contact Girish at 9381026333 or Ramkumar 9941315784 for more information.

I remember a recent Chennai case similar to yours(the case of hubby_in_trouble (at) yahoo.com, copying this mail to him for his inputs on this) was successfully tackled by the group, you could use a similar game plan, customised to the facts of your case.

What I suggested to "hubby_in_trouble" was this -> http://bok498a.blogspot.com/2008/06/first-strikers-advantage-live-saving.html , I guess this will look scary for new members, but as one gains confidence by interacting with the local group, you will do more scarier things than u ever imagined u would.

Warm Regards,

Re: Serious family problem
Posted by: "Rahul Verma"
Sat Aug 2, 2008 6:44 am (PDT)
After Vinayak's reply, there is hardly anything others can add.....
XXXXX - please answer the questions Vinayak asked so that we understand your thinking better
And attend the weekly meetings as pointed out by Girish

----- Original Message ----
From: e_vinayak
To: saveindianfamily@ yahoogroups. com
Sent: Saturday, August 2, 2008 3:29:33 PM
Subject: [SaveIndianFamily] Re: Serious family problem

I generally sympathise a lot with victims

I'm myself am one and so the sympathy I
assume is natural

However I am confounded by some issues here
.... so help me understand

1. Your wife has been working for approx 8
months now...but you do NOT even know where
she works...

...I fully understand that she did
NOT tell you but haven't you engaged a
security agency / detective agency or a
freind who can find out ???

If you can't find out who will ??

2. You say she yells at your mom, she
speaks badly ...bets that your mum will get
out etc etc etc.... There are two extremens
in handling bad behaviour ... (a) giving it
back i.e being bad yourself IF YOU have the
guts and the mental strength or (b) just
ignoring the bad behaviour .... ... but how
do you expect us to react when you say you
are so scared of something that you can't
even tell this bitch to shut up ?????

3. What have you done these 3 years ?? I
mean other than writing this pitiable mail
what have you done ??

4. The reason I am asking all these
questions is because we set up originally to
fight against un some scrupulous police or
some un scrupulous people misusing the
law.... NOW in your case there is NO misuse
of law till date... this is a case of wife
ill treating the hubby and the hubby
wringing his hands in fear NOT knowing what
to do ???

dear ...oh dear.....

I do NOT know how to respond to DAY TO DAY
ill treatment that a MAN is happily (or
sadly) tolerating for 3 years.....

what made me write this is
^^^^^^^^^^^^ ^^^^^^^^^ ^^^^^^^^^ ^^^^^^^^

>Members please help me on how to deal. I do
>not want to leave the child nor my Mom. I
>plan to seperate my mom from the current
>house and

You are SO SCARED that you are asking us IF
your mom can take HER own things and get out
??? GOD ...YOU ARE asking us how to throw
you mum out...????

Some questions
------------ ---------

- are you ready to fight ?????

- Mister ... !!!! ARE YOU READY TO FIGHT
BACK ???? OR ARE YOU EXPECTING SOME MIRACLE
??? or do you plan to run away from this
problem ???

- what is that you want from a SELF HELP
GROUP like us ?? just to tell how to throw
your mum out ????

I'm confounded .....

regards
Vinayak

>Hello Sirs,
>
>I am XXXX from chennai. I got married 3
>yr back. i did not borrow a single pie as
>dowry. Her family members - dad, mom, 1
>younger brother & 1 younger sister. They
>hail from Tuticorin. The Marriage was held
>in Tuticorin. From the day of marriage, my
>wife used to speak sharply, i mean always
>deeply hurt others. After wedding ceremonies
>, she bet my Mom that she would send her Old
>Home center within one year. She started
>hating my mom like anything from day one and
>did many unlikely things. I also counselled
>my wife many times and told my mom is very
>important to me and i am her only son.
>Before proceeding to my problem, i would
>like to tell a few words about my Mom.
>
>My mom struggled to bring me up, with great
>financial difficulty , since my dad died
>when i was 9 yr old. None of her relatives
>supported her and she struggled to get the
>govt. job on compassionate ground, since my
>dad was a govt.employee. She gave good
>schooling, college and all facilities i
>required in my life. Today am in a very gud
>position. My mom is a very sick patient.
>From her early years she struggled for her
>life even with her parents and family before
>marriage. It is after her marriage she feels
>she is better. Her first child (my brother)
>died at an early age and her 3rd child (my
>sister) also died at an early age. I am the
>middle son and I like my mom a lot. She is
>suffering from BP, Sugar, Psoriasis,
>Arthities, Liver Stone, Chest problem etc..
>
>After my Child was Born she and her family
>starting acting entriely aginst us. She want
>my mom to be seperated. She does not do any
>domestic chores. nor she looks after my
>child. She used to beat my child oftenly to
>show her anger against me and my Mom. Till
>last year Nov'07 she was in the house just
>eating wat we cooked and just sleeping. from
>11 am - 5 pm. Even when the child is crying
>for food, she just give some bottle milk and
>make him sleep. Becos of this my child
>health had a serious problem. From Mid of
>Nov'07, she started going to job. She leaves
>my house by 7.30 am and returns at 10.30 pm.
>i do not where she is working nor her salary
>.. but i guess she is working in some tele-
>call centre. Daily she creates problem, i
>means she tortures me and my mom. She wants
>me to sign the divorce paper first, so that
>she can get monetary benefit. She has openly
>told that she needs divorce , till such she
>will torture us. Even her parents also
>supports her activity and she has informed
>her relative about us in negative way.(like
>we donot provide food, dowry torture etc..)
>
>She has gone to the extent of telling that
>she and family has already arranged persons
>/ gundas by paying Rs. 10,000/- to kill me
>and my mom. But she is waiting for my money.
>Me and my mom love the child very much and
>so we are tolerating her activities. We do
>not awnt the child to get affected in any
way.
>
>Members please help me on how to deal. I do
>not want to leave the child nor my Mom. I
>plan to seperate my mom from the current
>house and provide her a peaceful life. Can
>she take her belongings or I think my wife
>create a problem. Request your valuable
>guidance..