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Section 18(a)(c) and (d) of the impugned Act


Impugned Provision / other anomaly
Breach of Section / Article
Section 18(a)(c)(d)

Article 19 and 21 of the Constitution of India;

Section 18(c) – aggrieved person being a child, whereas aggrieved person is stated to be a woman;


SECTION 18: Protection orders
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from
(a) Committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependents, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.



Article 21: Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 19: Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right

(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
*           *            *              *               *         
(g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from                       making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.


The Argument

1.      Whereas the expression “domestic violence” itself is inherently and characteristically vague and ambiguous, as argued hitherto, any Order passed, thereby prohibiting the Respondent from committing any further “domestic violence”, would also be vague and ambiguous. The Respondent may be left to ponder “what to comply with”; The Respondent may be left wondering how he should organize his conduct so as to comply with the Order of the Court.

2.      Nevertheless, given the patently ambiguous nature of Order which would be passed, the aggrieved person can always allege that the Order of the Court is not complied with; and the Respondent thereby makes him subject to criminal prosecution for non-compliance of the Order of the Court.  

3.      The phraseology employed in the said section 18(d) is disproportionately onerous and unwarranted, and in fact would be impossible to adhere with and the breach of it would be imminent, although not intentional; and can also conveniently be alleged the breach of it, and would thus render the Respondent to criminal prosecution;

4.      And more so, it closes the doors for any amicable  and harmonious settlement that could be arrived with between the estranged parties, either by themselves, or with the aid and assistance of elderly family member or respectable community member of the parties.




Legal issues !!
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or
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