Common Law

The actual Preamble of the Act: An Act to build a frightened democracy, to endanger the peace and harmony of the traditional Indian family. The whole procedure contemplated under the Act is designed in such a manner that would cause “undue” fatigue and oppression to the Respondent. There is an illogical consistency in the entire scheme of the impugned Act, and the innocent Respondent may never recover from confusion. Anomaly in the Statement of objects and reasons http://commonlaw-sandeep.blogspot.in/2013/12/anomaly-in-statement-of-object-and.html Section 3 http://commonlaw-sandeep.blogspot.in/2013/12/section-3-of-impugned-act.html Section 13 http://commonlaw-sandeep.blogspot.in/2013/12/section-13-read-with-rule-12-and.html Section 18 http://commonlaw-sandeep.blogspot.in/2013/12/section-18ac-and-d-of-impugned-act.html Section 19 http://commonlaw-sandeep.blogspot.in/2013/12/section-19bd-of-impug...

1.       Since the 17 th Century, human thinking have been veering around to the theory that man that is to say, every human being, has certain essential, basic, natural, and inalienable rights or freedoms, and it is the function of the State to recognize those rights and freedoms and allow them a free play, in order to preserve human liberty, human personality being duly developed, and an effective social and democratic life be promoted. 2.       According to LOCKE, (the English philosopher and physician of the 17 th Century), every man (read Human being) is born, with a title to perfect freedom and uncontrolled enjoyment of all the rights and privileges of the law of nature; and he has, by nature, a power to preserve his property, that is his life, liberty and estate, against the injuries and attempts of other men. 3.       The declaration of the French revolution, 1789, which may be regarded as a...

Impugned Provision / other Anomaly Breach of Section / Article Sections 31 and 32 of the impugned Act Article 21 of the Constitution of India SECTION 31: Penalty for breach of protection order by respondent (1) A breach of protection order, or of any interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-sec. (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-sec. (1), the Magistrate may also frame charges under Sec. 498-A of the Indian Penal Code, 1860 (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961) as the case may be...

Impugned Provision / other anomaly Breach of Section / Article Section 19(b)(d) of the impugned Act Article 21 of the Constitution of India SECTION 19: Residence orders (1) While disposing of an application under sub-sec. (1) of Sec. 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e) restraining the responden...

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 pe...

Impugned Provision / other anomaly Breach of Section / Article Section 13 when read with Rules 12(2)(a)(b)(c) and section 23 of the impugned Act Breach of principles of natural justice; SECTION 13: Service of notice (1) A notice of the date of hearing fixed under Sec. 12 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 within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt. (2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed 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. SECTION 23: Power to grant interim and ex parte orders (1) In any proceeding befo...