Difficulties faced by men in Family
Courts
Awoman in India can file various cases against men
according to the Indian laws. A marriage is considered as a soulful connection
between a man and the woman and is performed through different marriage laws
which include the Hindu Marriage Act, Personal Marriage Act, etc. However,
nowadays, this institution of
marriage is easily broken. There has been an increase in the number of the
breakdown of wedlocks each year either due to the fault of the husband or the
wife. The divorce rate of marriage in India is increasing every year.
According to the reports,1out of every 100 marriages, is broken and is taken to
court every year. Due to this increasing rates of divorce every year, strict
laws have been implemented which safeguards the interest of the women, but at
the same time, does not give much importance to the problems that a man has to
go through in a family court.
A family court witnesses’ matters that are related to the family.
It includes divorce cases, property-related cases, annulment cases, etc. Most
of the cases which are related to divorce are always biased against the husband
unless and until it is not a mutual consent divorce. A divorce which is filed
by the wife always backfires on the husband. The husband does not only tackle
the trauma of divorce, but he also undergoes issues like filing of FIRs against
him, allegations of domestic violence and dowry, matters related to maintenance
and alimony etc. With this, a father also has to fight for child custody, which
normally turns out to be in favour of the mother, as a mother holds the primary
rights of her child. This has been held and reiterated in many decisions of the
apex court, that except in situations where the child is able to form an
opinion of his own, it is in the interest of the child that custody matters
need to be determined, and the same has been held in Elizabeth R. Dinnshaw v
Arvind M. Dinshaw 1987 AIE 3
here it was the case that the minor was not old enough to form his ownopinion
on the matter of custody, and the court had to make the call, it decided the
matter in the mother’s favour, despite the different considerations weighed by
the court in deciding the matter, it has since then become a rule of thumb that
the child will be in the custody of the mother in the event of discord within
the partners.
A wife is entitled to file a complaint against the husband
under Section 498A, IPC, The Hindu Marriage Act, 1955 and the Domestic Violence
Act, 2005. This paper extensively talks about the problems that men deal in the
family court. It talks about how some Indian laws are favoured towards women,
and for men, it gets tough and ugly to prove himself asinnocent. This paper
will also provide the reader with landmark judgments that have created some
change in the country and have impacted the subject of the law to make some
necessary amendments.
Discussed below is a list of major issue faced by men and his
family members.
Section 498
A of IPC
According to section 498 which defines cruelty, the
same is repeated in the DV Act, but for consideration in this section of the
paper, Sec. 498A shall suffice, cruelty has been defined as follows:Including
verbal as well as physical abuse by the husband or by his family. In Law context,
there is a maxim known as Audi
Alteram Partem (hear the other side), but it is important to note that, in
practicality, section 498 of IPC has swept away this fundamental right as once a
case is filed by the women, the police hardly listen to the men.
Moreover, what makes this law tougher is its subject matter.
The Indian penal code has no definite definition of the term “Cruelty”, and
therefore, anything done by the husband which goes against the ethics of the
society is termed as cruelty and based on that FIRs are lodged. With this, it
is a non-bailable and non-compoundable offence which makes it difficult for the
men dealing with it. It should be noted
that, at the stage of registering of offence, the officers in charge have been
known to show no discretion in registering the offence, despite in some
situations outright inconsistencies in the complaint filed before them. This,
combined with the ability of the litigant to include the family members of the
husband in the complaint, usually results in harassment by police and
investigating personnel, of the husband and his family.
The Madras court in Rukmani v Manonmani 2017 SCC
OnLine 20343 demonstrates the potential and the difficulty in establishing
the veracity of a vexatious complaint: In the matter, even though the complaint
itself was a fiction, and it was prima facie to the HC, the District Court
refused to quash the proceedings, and even refused to refer the act and complaint.
It is important to note that in most instances of such alleged abuse, the
courts have been quick to detect this same and make appropriate order in the
matter: Saritha v R. Ramachandra2003 (1) E.C.R. Crim. 481, is
a prime example of it, whereas part of a divorceproceeding on the grounds of
cruelty the wife had filed under Sec. 498A against the whole family, the HC
struck the complaint down, highlighting the possibility of vexatious
complaints, and the duty of courts to detect the same. Something similarcame
before the Punjaband Haryana HC in Harjinder Kaur and Anr. V State of Punjab2004
(4) R.C.R. Crim. 432,where the court had to determine the complaint
under Sec. 498A filed against the family of the husband, where some of the
co-accused were minors at the time ofthe alleged offence; Then court noted the
same and opined that the complaint had included as many people as it could, without
any proper consideration to the factual matrix. Courts have been aware of the
misuse potential of Sec. 498, and the Madhya Pradesh HC has even recommended
that the section be made compounded so that an amicable settlement could be
reached between the parties: Ramgopal v State of MP. SLP (Ct.) No.
6494 of 2010The most prominent example of this judicial opinion towards
Sec. 498A can be seen in the SC decision, and obiter dictum by J. Chandramauli Kumar
Prasad held that due to its non-bailable and cognizable offence, it has lent it
a dubious place among provisions that are misused, and are rife with potential
for harassment, Primarily held in Social Action Forum for Manav Adhiikar v
UOI(2018) 10 SCC 443there isampleprecedent since then, to
demonstrate that there have been so many instances of harassment and misuse of
the section that, the judiciary has taken cognizance, an recommended measures
to be taken by the legislature.
The wife on the other side, makes it sure, that such
complaints are lodged on Friday so that the defendant at least for the next two
days cannot apply for bail since the courts are shut on the weekend. This was a
major issue that was witnessed by the husband and his family, and due to the
increasing cases of false complaints by the wife and due to the unavailability
of any physical evidences, the courts used to give misgivings. However,
according to the reports, a quarter of the arrested were
women relatives of the husband. Charge-sheets were filed in almost all cases
(93.6%), but convictions were abysmally low, at under 15%. Something was
obviously wrong. At that rate, the report went on to say, 372,306 pending cases
will have 317,000 acquittals. This low rate of conviction could be
interpreted two ways, one that the inherent nature of domestic violence cases
contributes to difficulty in establishing cases against accused, or that there
are in fact, so few instances of proven domestic abuseand the cases and
complaints filed have been merely to harass and intimidate the husband and his
family. While neither of these assertions has been confirmed, nor denied, this statistical
figure begs the question, whether more cases than necessary are clogging the
docket.
The above report states that the courts will have
to look for an alternate method that deals with speedy disposal of trials and
something to be done with the false complaints lodged by the wife for malicious
intentions.
·
It should be noted, that the
courts have already made guidelines for disposalofcomplaints filed pursuant to
filing under Sec. 498A. in the abovementioned case of Amresh Kumar,the
SC endeavoured to make the following rules to ensure that automatic arrest and
detention does not become the norm in such matters:Police
officers shall fill in the checklist before making a decision in the arrest of
a person accused.
·
The police shall satisfy
themselves that thereis a genuine case for abuse before registering the
offence.
·
The decision by the police will
be cross verified by the Magistrate.
Through these measures, the court ensures that
cases of domestic abuse/ violence are not vexatious registered, and in the
event that they are such ill intentions and false decisions are detected early
in the investigative process.
Dowry Demands
The various
provision covering the mental abuses with respect to women in India have also
covered an interpretation regarding protecting the rights and interest of men on
the same parlance. Covering various rights promised by the Preamble of India
have further segregated and clubbed under various Act or laws. This article
further narrows down by giving serious consideration to a wider understanding
of these rights relating to the harassment and troubles faced by the men and
their family members in society after a complaint or a suit filed by women by
taking undue advantages of the provisions legislated to protect her interest in
the society. In India, as far as marriages are concerned as quoted as wedlock
between the families of the two individuals is far more than wedlock between
the two individuals. Its tradition involves many rituals followed by some age-old
practises such as dowry. Dowry in simplest term can be defined as kind or money
itself given to the groom by the family members of the bride as a gift. The law
has termed dowry from a period till today as a criminal offence if it is
demanded from the natal family of the bride, and there are serious consequences
if any person has conducted any act of dowry demand in the territory of India.
The legislation understanding various criminal activities that are associated
with or are the result of the dowry demands should be prohibited for the
harmony of the state, with a clear objective legislature has passed an Act that
regulates and prohibits such activities, i.e. Dowry Prohibition Act, 1961.
Though
legislation incorporated the act with the intent to protect women it has also
did not contemplate the abuse of it against the men in the society, there are
provisions made specifically with the single objective which in turn has beenunderstood
as adouble-edged sword. Dowry Demand has turned against the men in the society
with various matters everyday being filed in the police stations or with the
women’s development cell of the country reiterating these provisions taking
hold of men without being provided with an opportunity of being heard.
In
the case of Pushkar Singh, it was seen that a resident (Pushkar Singh) residing
at Lucknow committed suicide writing a note stating the in-laws are solely
responsible for his death. Pushkar Singh was wrongly sentenced to imprisonment
under section 4984, 323 and 504 of IPC. The wife in here filed against the
husband stating the false demand of the dowry of Rs. 14,00,000/-. The deceased
mentioned in the note that this case has also led in financial difficulties for
him and his family they also have sold their house for procurement of some
financial gain for survival.
Cruelty under the Domestic
Violence Act
While
explaining the cruelty the basic understanding of the point of view is that a
mere annoyance not of any serious consequences in matrimonial affairs would not
be treated as cruelty it has to be seen in an angle of nature of any act found
to rare unlike routine discussed quarrel and is of serious nature that might
lead to grave consequences to either spouse by the other. Any such act can only
be termed cruelty which though not satisfying all inhuman or extreme inhuman
condition but are considerable enough for protection of either party in
matrimonial affairs.
Domestic
Violence Act in its inception was enacted with a sole objective to curb the
violence against the women in the country majorly violence’s involved in
matrimonial affairs, but such provision protecting the rights of the women have
proven to be fatal for men. The data signifies that many false Domestic
violence cases have been filed by women, in turn, to coerce men into fulfilling
impossible or unethical desires. A report submitted by the two non-profit
organizations, save family Foundation and My Nation Foundation have published a
survey which provides that out of 1,00,000 reports filed by the women in the
country between the year 2016-17, only 2.8% of the cases were actually proven
to be of some validity. The data provided by the National Crime Record Bureau
that as compared to women, 21.16% of more men than women were reported to
commit suicides due to DV.
During
suchpending litigation that eventually relates to curtailing the rights of the
men by providing extra protection as assumed by the government towards women
have led to many fatalities resulting suicides, depression, insanity and other
inhuman activities out of frustration of having no remedy to set the matter
out. Many organisations and advocates understanding the nature of the provision
under various women protection law have advocated the needfor new legislation
or at least amendment in the law, in order to protect the interest of men. The
Honourable Apex Court has understood the need to provide various direction to
be provided to police in dealing with a various matter involving domestic
violence, dowry, abuse or cruelty. This
context changed in respect of the men after the #metoo movement launched where
women were freely asked to file complaints against any act of violence against
them; there were many fakes cases being reported against men.
Protection
The Criminal Procedure Code (CrPC) deals with the procedure
to deal withcriminal complaints filed by any person in prayer to authority to
act in their capacity to take steps to mitigate the loss or reinstate the right
of the pleader. The various sectionsdealing with the protection of any person
who is the opinion of the complaint raised against him is false or futile
Further
various legal remedies have been made available to any person who is accused by
any person under any law enacted to protect women’s rights. A person can seek
protection` under these provision mentioned:
Section 227: The section states that any person
believing the complaint raised by his wife is false according to him the person
has to provide the evidence in contrary to the complaint on this basis and the Honorable
Magistrate can dismiss the plea by the spouse under section 498A and decide
accordingly.
Section 438: This section in CrPC deals with
presenting an appeal or making an application for bail before the session court
to circumvent the arrest from the police; this application is also known as
Anticipatory Bail.
Section 482: The inherent power of the High Court to
dismiss the matter if the evidence or testimony does not seem to support the
accusation made against the person (spouse) by his wife where such section deals
with an objective that any power of the law to protect the interest should not
be used for personal vendetta or as a weapon for undue advantage, this can also
be used to quash the FIR by any person.
The Honorable Apex Court, while envisaging the guidelines
for the use of section 482 states the list of pointers to be included in the
application:
a. No prima facie case
b. Absence of cognizable offence
c. Crime in the case cannot be disclosed
d. Lack of evidence
e. Time barred by the Limitation Act
f. Vexatious in nature
A person can also file the complaint under section 9
of Civil Procedure Code, 1908 to recover the damages a person faced under the
proceeding or police custody for the false case.
As per the finding of the Apex Court in the case decided
by the Honorable High Court in Anuj Chaudhary v/s State of Uttar Pradesh stated
that there cannot be two or more / any multiple FIR of the same offence. Any
person filing multiple FIRs will be considered as one offence if the matter of
the offence is same and person lodging the FIR praying for the same remedy from
the state authority (police) this contemplation was provided by section 154 of
Indian Penal Code.
The Indian Penal Code governs, regulate, and directs
the punishment found guilty under the crime of any nature (whether heinous or
non-heinous). There are various provision protecting the rights of spouse if
being caught in case of heinous nature if such person believes himself to be
innocent.
·
Section 120B: This
section deals with criminal conspiracy, any person filing a suit or complaining
about any person to the state authority and such complaint has no stand or
basis or that person has no locus standii in filing complaint such person is at
good faith to file a complaint under section 120B to prove the complaint is a mere
conspiracy against him.
·
Section
182: This section deals with protecting
the interest of the person against his spouse if the wife submitted or provided
false evidence for the public servant to act accordingly.
·
Section 191:
This section states that person can file a complaint under this section,
raising doubt on all the documents presented by his wife to authority seeking
benefits of false evidence.
·
Section 504:
This section deal with any act by spouse or communication by way of oral or
written to provoke the other party in acting against with an intent to make it a
reason for filing a complaint or instigating a situation of violence to provide
evidence to false accused.
The
Apex court states that any person filing FIR does not conclude with translating
it into the immediate arrest of the person against whom a complaint hasbeen
filed. The court hastime and again reiterated the cardinal principle of
“presumption of innocence” where it states that every person is to be treated as
innocent until proven guilty. In the case of Advait Amrish Goel v/s Mukesh
school of technology,it was laid down that mere filing of the FIR would not be
understood as gospel truth.
In
the case of Arnesh Kumar v/s State of Bihar the apex court states that section
41 of Criminal Procedure Code, 1973 should be implemented and practised by the
police if any cases have been registered under section 498A of IPC. Further, it
states that there should a change in police arrest techniques a human
conception should be applied to every case depending on the gravity and police
acumen to take the next step. Arresting a person on the filing of FIR violates
the cardinal principle of the law,and it also results in the violation of the
rights of the person provided by the Constitution of India. The arrest of any
person in violation of Article 14 that provides equal protection of the law and
equality before the law. It also curtails the freedom of life and liberty thus
should be made proper accordance of the law. The law provides the authority to
arrest a person without a warrant in the cognizable offence, but it also
restricts the police to arrest of any person chargeable with imprisonment of
more than 7 years under section 4 of the Dowry Prohibition Act, 1960 if the
presiding officer according to him is not satisfied withthe arrest to be made.
The
Apex Court further states that any person on the basis of the cardinal rule and
also if the court has no evidence to believe either the offence that has been
committed or under argument provided by the counsel has reason to believe of
being harmless should be provided bail until the matter concluded.
Conclusion
Mental illness contributes to one’s health in a very
drastic way. We often tend to ignore this aspect as it does not attract any
major law. But right now, it is the need of the hour, that stringent law should
be made which are able to protect and safeguard a man’s mental health that
arises solely due to the false circumstances that a woman creates.
The
family welfare program has been constituted by the government that takes as the
duty to protect the rights of the victim and his family member in cases causing
mental trauma or economical diseconomies. Various groups have been formed in
protecting the rights of men, and they have taken up the issue that is causing
them serious consequences in their life.
The author of this blog/Article
is Kishan Dutt Kalaskar, a Retired Judge and practising advocate
having an experience of 35+ years in handling different legal matters. He
has prepared and got published Head Notes for more than 10,000 Judgments
of the Supreme Court and High Courts in
different Law Journals. From his
experience he wants to share this beneficial information for the individuals
having any issues with respect to their related matters .
Author
:
Kishan Dutt Kalaskar
Advocate (Retired Judge)
Bengaluru-560003
Mob: 9686971935
.png "Legal Notice issued to CM Bhagwant Maan for defamation by Shri. Sardar Sukhbir Singh Badal")
