Saturday, July 16, 2005

The Domestic Harmony Bill , 2005 ( For review)

The Domestic Harmony Bill , 2005 ( For review)

A
BILL

To protect the institution of marriage, avoid child under single parenting system and Save Indian family to provide a strong bonding between all family members of a family , irrespective of Sex , gender , religion and caste.

BE it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:—

CHAPTER I
PRELIMINARY
1. Short title, extent and commencement.-(1) This Act may be called the Domestic harmony Act.

(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in
the Official Gazette, appoint.

2. Definitions.-In this Act, unless the context otherwise requires,—
(a) “aggrieved person” means any Person who is or has been a relative of the
respondent and who alleges to have been subjected to act of domestic Harmony by the
respondent;
(b) “domestic Harmony” has the same meaning assigned to it as in section 4;
(c) “Magistrate” means the Judicial Magistrate of the first class or the Metropolitan
Magistrate, as the case may be, exercising jurisdiction under the Code of Criminal Procedure,
1973 (2 of 1974) in the area where the aggrieved person resides;
(d) “monetary relief” means compensation which a Magistrate may order at any
stage during the hearing of application seeking a protection order, to meet the expenses
incurred and losses suffered by the aggrieved person as a result of the violation of domestic harmony;
(e) “notification” means a notification published in the Official Gazette;
(f) “prescribed” means prescribed by rules made under this Act;
(g) “Protection Officer” means an officer appointed by the State Government under section
5;
(h) “protection order” means an order made under section 14;
(i) “relative” includes any person related by blood, marriage or adoption and living
with the respondent;
(j) “respondent” means any person who is or has been a relative of the aggrieved person and
against whom the aggrieved person has sought monetary relief or has made an application for
protection order to the Magistrate or to the Protection Officer, as the case may be; and
(k) “service provider” means any voluntary association registered under the Companies
Act, 1956 or any other law for the time being in force with the objective of protecting the
rights and interests of all family members by any means including legal aid, medical, financial or other
assistance.

3. Act not in derogation of any other law.-The provisions of this Act shall be in addition to, and not
in derogation of the provisions of any other law, for the time being in force.
CHAPTER II
DOMESTIC HARMONEY

4. Domestic harmony.-(1) For the purposes of this Act, any conduct with concrete evidence of the respondent shall effect or damage or threat to damage to domestic harmony of a family if he/she,—

(a) assaults or makes the life of the aggrieved person miserable by
cruelty of conduct even if such conduct does not amount to physical ill-treatment; or
(b) forces the aggrieved person to lead an immoral life; or
(c) otherwise injures or harms the aggrieved person.
(2) Nothing contained in clause (c) of sub-section (1) shall amount to effect or damage or threat to damage to domestic harmony if the pursuit of course of conduct by the respondent was reasonable for his own protection or for the protection of own or another’s property
.
CHAPTER III
PROTECTION OFFICER
5. Appointment of Protection Officer.-(1) The State Government shall, by notification in the
Official Gazette, appoint such number of Protection Officers in each district as it may consider necessary
and shall notify the area or areas within which a Protection Officer shall exercise his powers and perform
his duties under this Act.
(2) The Protection Officer shall possess such qualifications as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and other officers and employees
shall be such as may be prescribed.

6. Duties of Protection Officer.-(1) Where the Protection Officer, after enquiry ( taking evidence from both side ), believes either
suo motu or on the basis of information received from any person under sub-section (1) of section 8 that
action should be taken, it shall be his duty to—

(a) inform the aggrieved person of right to apply for protection order under section 9;
(b) inform about a service provider in the area where the aggrieved person resides so
that she may seek support and help from such service provider;
(c) inform the aggrieved person of her entitlement to legal services under the Legal
Services Authorities Act, 1987 (39 of 1987);
(d) perform such other duties as may be prescribed or as may be ordered to be
performed by the Magistrate.
(2) It shall also be the duty of the Protection Officer to entertain any request or application
made or presented to him under the provisions of this Act by the aggrieved person or by any other
person on behalf of the aggrieved person.
(3) The Protection Officer on receipt of an application under sub-section (2) shall, where so
desired by the aggrieved person, endeavor to assist the aggrieved person and the respondent in an
independent and impartial manner to reach an amicable settlement of the grievance under this Act.
(4) If no such settlement as stated in sub-section (3) is arrived at, the Protection Officer shall
file an application to the Magistrate under this Act if so desired by the aggrieved person.
7. Powers of Protection Officer.-(1) A Protection Officer within the local limits for which he
is appointed shall exercise such powers as may be conferred on him by or under this Act.
(2) A Protection Officer may take assistance of any person while exercising his powers or
discharging his duties under this Act.
(3) A Protection Officer authorized to discharge functions under this Act shall be deemed to
be a Civil Court for the purposes of holding enquiries under this Act.
8. Information to Protection Officer and exclusion of liability.-(1) Any person who has reason to believe that
an act of violation of domestic harmony has been, is being, or is likely to be committed, may give information to the
Protection Officer.
(2) No liability, civil or criminal, shall be incurred by any person for information given in
good faith for the purpose of sub-section (1).

CHAPTER IV
PROCEDURE FOR OBTAINING PROTECTION ORDER

9. Application to Magistrate.-(1) The aggrieved person who is a victim of violation of domestic harmony or any other person on behalf, or the Protection Officer, may present an application to the
Magistrate for seeking relief under section 14.
(2) The application under sub-section (1) may contain particulars in such form as may be
prescribed or as near thereto as possible.

(3) The Magistrate shall fix first date of hearing which shall not exceed fifteen days from the
date of the receipt of the application by the Magistrate for consideration of the application.

10. Service of notice.-(1) Notice of the date fixed under section 9 shall be given by the
Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed
on the respondent, and on any other person, as directed by the Magistrate.
(2) A declaration in such form as may be prescribed, of the Protection Officer regarding
service of notice shall be the proof that such notice was served upon the respondent and on any
other person as directed by the Magistrate unless the contrary is proved.

11. Counseling.-(1) The Magistrate at any stage of the proceedings under this Act may direct the
respondent or the aggrieved person, either singly or jointly, to undergo mandatory counseling with any
service provider.

(2) Where the Magistrate has issued any direction under sub-section (1), he shall fix the next
date of hearing of the case within a period not exceeding two months.

12. Assistance of welfare expert.-In any proceedings under this Act, the Magistrate may
secure the services of such person, preferably a woman where available, whether related to parties
or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of
assisting him in discharging his functions.

13. Proceedings to be held in camera.-The proceedings may be held in camera, if the Magistrate
considers that the circumstances of the case so warrant, and shall be so held if either party so
desires.

14. Passing of protection order.-(1) The Magistrate, after giving opportunity of being heard
to the parties to the application, and after being satisfied that the aggrieved person is being
subjected to violation of domestic harmony,—
(a) may pass the protection order by directing the respondent to,—
(i) refrain from committing any act of violation of domestic harmony; or
(ii) pay such monetary relief as the Magistrate deems just, and specify the period in the
protection order within which the amount of such monetary relief is to be paid by the respondent to
the person aggrieved; or
(b) pass such other direction as may be considered necessary.
(2) Subject to section 11, every endeavour shall be made by the Magistrate hearing the
application under this Act to dispose it of within three months from the date of filing of the
application.
(3) All evidence in any proceeding under this Act shall be taken in the presence of the
respondent, or, when a personal attendance of the respondent is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases in the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that if the Magistrate is satisfied that the respondent is wilfully avoiding service of notice, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte.
(4) A copy of the protection order shall be forwarded to the Protection Officer and parties to the application.
(5) Where the Magistrate is satisfied that circumstances stated in the application presented under section 9 are such so as to justify the immediate intervention of the Magistrate to restrain the respondent from committing violation of domestic harmony, the Magistrate may issue an interim protection order directing the respondent to restrain from engaging in any act of violation of domestic harmoney, and the Magistrate may further require the respondent to show cause as to why he should not be ordered to execute a bond, with or without sureties, for maintaining domestic peace for such period as the Magistrate thinks fit.
15. Duration and alteration of protection order.-(1) A protection order made under section 14 shall be in force in the first instance for such period as the Magistrate may fix but not exceeding two years.
(2) The protection order, for reasons to be recorded in writing, may be altered, modified,
varied or revoked, on an application either by the aggrieved person or the respondent provided that the Magistrate is satisfied that there is a change in the circumstances that requires such alteration,modification, variation or revocation, as the case may be.

CHAPTER V
MISCELLANEOUS
16. Appeal.-There shall lie an appeal to the Court of Session within thirty days from the
date on which the order made by the Magistrate is served on the aggrieved person or the
respondent, as the case may be.
17. Protection Officer to be public servant.-Every Protection Officer, when acting or
purporting to act under this Act, shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
18. Penalty for breach of protection order by the respondent.-A breach of protection order, or of the interim protection order, by the respondent shall be an offence and shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to rupees twenty thousand, or with both.
19. Penalty for not discharging duties by Protection Officer.-If any Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to rupees twenty thousand, or with both.
20. Cognizance of offence committed by Protection Officer.-No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorized by it in this behalf.
21. Protection of action taken in good faith.-No suit, prosecution or other legal proceedings shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule made there under.
22. Power to make rules.-(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) qualifications, terms and conditions of service for the appointment of Protection Officers, other officers and employees and their duties under section 5;
(b) duties of the Protection Officer under section 6;
(c) prescribing the form in which the application may be presented under sub-
section (2) of section 9;
(d) the form and manner in which notice may be served on the respondent and other
persons by the Protection Officer under section 10; and
(e) any other matter in connection with or in relation to this Act.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

STATEMENT OF OBJECTS AND REASONS
Domestic harmony is undoubtedly a basis foundation of Indian Family and serious deterrent to development.
2. The phenomenon of violation of domestic harmony is widely prevalent, irrespective of sex , gender , caste and religion but has remained largely invisible in the public domain. Presently, where a wife is visited with cruelty by her husband or his relatives is an offence under section 498A of the Indian Penal Code, 1860. The civil law does not address this phenomenon in its entirety. Further mother –in –law and sister –in –law have not any protection when a daughter –in- law abuse and ill-treated them and violate the domestic harmony. (Reference WHO Report, increasing divorce rate statistics, single parenting system).
3. With a view to providing a remedy under the civil law which is intended to preserve the family and at the same time provide protection to victims, legislation is being proposed.
The main features as contained in the Bill are as follows:—
(i) it is being provided that any conduct of relative ( by blood , marriage , adoption and live in relationship ) of the victim, which subjects the person to assault, or makes life miserable, or injures or harms, or forces to lead an immoral life would constitute violation of domestic harmony.

(ii) the Judicial Magistrate of the first class or the Metropolitan Magistrate may take thecognizance of violation of domestic harmony and pass a protection order requiring the relative of the person to refrain from committing an act of violation of domestic harmony, or pay monetary relief which is deemed fit in the circumstances or pass any other direction as the Magistrate may consider just;


(iii) the Magistrate may even require as an interim and urgent measure from the relative of the person to execute a bond, with or without sureties, for maintaining domestic peace;

(iv) the violation by the relative of the order made by the Magistrate would constitute an
offence punishable with imprisonment up to one year, or with fine, or with both;

(v) it is being proposed to set up an institution of Protection Officer to help the victim of
Domestic dispute in making application to the Magistrate and in availing of all legal rights;

(vi) a provision is being made for the appointment of Protection Officers by State
Governments and they shall possess such qualifications as may be prescribed by the Central Government; and

(vii) Protection Officer shall be deemed to be a public servant within the meaning of
section 21 of the Indian Penal Code, 1860, and if he fails or refuses to discharge the duties as directed by the Magistrate, his act shall amount to an offence punishable with imprisonment up to one year, or with fine, or with both.
4. The Bill seeks to achieve the above objects.


MEMORANDUM REGARDING DELEGATED LEGISLATION
Sub-clauses (2) and (3) of clause 5 seek to confer power on the Central Government to make
rules for prescribing qualification, terms and conditions of service of the Protection Officer and other officers subordinate to him. Clause 6 prescribes duties of Protection Officer in addition to the duties which the Central Government can impose on them by virtue of powers conferred by sub-clause (1) of the said clause. Sub-clause (2) of clause 9 confers power on the Central Government to make rules for prescribing the form in which the application may be presented by the aggrieved person to the Magistrate. Sub-clauses (1) and (2) of clause 10, confer power on the Central Government to make
rules regarding service of notice on respondent. Clause 22, inter alia, confers power on the Central Government to make rules for carrying out the purposes of the Bill, and for any other matter in connection or in relation to the Bill.
2. The matter in respect of which provision may be made in the rules are generally matters of procedure and detail. The delegation of legislative power, is therefore, of a normal character.
FINANCIAL MEMORANDUM
The provisions of the Protection from Domestic Harmony Bill ,2005 will be enforced through the existing machinery of the States and the Union territories. It is not envisaged to create any new post at any level. Therefore, no expenditure is involved from the Consolidated Fund of India.

2 Comments:

At 4:44 AM, Anonymous Anonymous said...

1. As per my understanding on reading this.
The definition of the crime in this as defined in point 4 includes non physical ill - treatment. Or harm to the wife. This is soo unclear that anything a husband, his relatives, friends who lives with him, or friends who have lived with him any time in past, does or do not do will make them all a criminal.

Example 1:
If anyone dare not to talk say on phone, to an abusive wife, it is insult , torture.
If they talk and silently listen to her false allegations, it means they are agreeing to all the false allegations that may be unthinkable for them, so they should be sent to jail.
Lets say they dare to say she is lying, well they are aggrevating the pain to her, this is torture as per this law.
So veryone who has son, or a relative who has a son, or has lived with some male who happen to be married or marry in future, can be made a criminal and sent to jail by this law.

2. Time period of appel of 30 days is too less for a falsely implicated person, to co out of the mental trauma and file his case apeal.

3. In point 3 of 22.
"any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. "
I am no lawyer, but it looks as if, the parliament passes some thing under this law. Then later parliament wants to ammend this then they can not ammend anything previously done under this law.

4. In all the cleaver wording is made by the feminists ( femi nazi's)so that parliament members can not understand the true aim of this law i.e. to make it impossible for anyone to stay in their own house, if some wife wants to occupy the house.

This is nothing but relatives house occupying bill.

 
At 4:22 PM, Blogger Swarup said...

Thank you very much and We had taken your comment as feed back will further try to amend accordingly. Please note this bill is to counter the proposed Domestic violence bill ( hope you have gone through that ), where all the law is made one sided .( No defence to husband and their relative )
We propose both a husband and wife should be punishable , if the verbal abuse and mental harasament to be considered as offence , presently wife have the whole sale free lincence ( under 498A ) and husband and thier relatives are going through night mare , as there is no law in which a dishonest daughter -in -law can be punished .
Crime is crime irrespective of any gender or sex , the punishment should be as per crime not as per sex or gender .

 

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