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Difficulties faced by men in Family Courts

Difficulties faced by men in Family Courts

A woman 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

[email protected]

Mob: 9686971935

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