SAMPLES OF NHRC Complaints. In these samples, the Maximum time limit of 1 year had been followed. From the Web-sites of these National Commissions and State Commissions, their Decide cases can be obtained to know what type of cases they give relief:
NHRC Complaint Sample No-1:-
Letter dated 31-10-2009:- Sir,
On date 01-11-2008, Mr.abc had been brutally killed in a Public Road by Mr.xyz. It was reported to Police immediately. However, Local Police had never done any investigation. It is not known, whether an FIR is also filed. However, thanks to Laws, only after an MLC is raised the Hospitals could examine the dead body. The MLC number is xxx, of yyy Hospital. The family of Late Mr. ABC is not having money and courage to approach Magistrate Court to file a complaint. Prayed, necessary actions may be initiated, to protect society from Mr. XYZ. Thanking you, Yours truly, DEF, a Social Worker./ Relative of deceased Mr. Abc.
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NHRC Complaint Sample No-2:-
Letter dated 31-10-2009:- Sir,
On date 01-11-2008, M/s abc had commenced Mining operations in this area, to extract xxx ore. Initially it had been told that, only first 4 foots of the soil will be examined, thus the residents of the area had not taken any serious steps. However, they had enrolled a lot of employees from this area from this area itself, and raised wall of 40 feets height and it is learnt that, they are digging 30 foot pits, to find out presence of xxx ore. Consequently, the Underground water of this area had been spoiled beyond recognition. Those who are enrolled from this area is protecting their employer, thus no court-case can bring a success, and it may result in man-handling of complainant. Complaints to local authorities are not attended, copies of those complaints are enclosed herewith. The Hon'ble NHRC may be pleased to send a fact-finding committee to find out truth and give relief. Thanking you, Yours truly, DEF, a Social Worker./ affected person residing in that area.
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NHRC Complaint Sample No-3:-
Letter dated 31-10-2009:- Sir,
On date 01-11-2008, I had retired from the services of Postal Department. Within the statutory period of 01-1-2009, I had not been paid any money: retiral and other benefits. I made various statutory complaints, but no-one is hearing me. All departmental remedies are exhausted, but no Court-case is filed being I do not have the money and health to go to a Regular Litigation Court. It is prayed that, Hon'ble NHRC will persuade the postal department to release my pension and other retiral dues. Thanking you, Yours truly, DEF, affected person.
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CHAPTER 22 : DOMESTIC VIOLENCE
The Protection of Women from Domestic Violence Act, 2005 : Theory and practical samples.
1. The National Commission for Women had published an Advertisement in the News Papers on 09-12-2006, which is quoted as follows:- “Protection of Women from Domestic Violence Act, 2005 came into force on 26th October 2006. Women facing physical, sexual, economic and verbal or emotional abuse by their husband or other relatives can file a petition before a First Class Judicial Magistrate and obtain a protection order including Right to Residence”. This chapter is devoted to enabling the persons reading it to prepare proper pleading for the Rights defined under this Statute.
2. The only way to ensure less violence in future is not written in this Statute, but it was written in a Judgement of the High Court of Allahabad, which reads: “There could be immediate gratification for the wife or her supporters when they implicate the errant husband or his family members in a case under Section 498-A IPC or succeed in sending them to jail. But what happens thereafter. In the absence of other systems of support and the woman still being largely economically dependent, it is the woman who may become the sufferer in the end if a too early recourse to the law Courts is taken in these matters. It is not like a complaint against an erring neighbour or a stranger who has wronged you. If he is jailed or punished, the complainant is satisfied and his life is not affected significantly because there has to be no further economic relationship between the parties. This is not the case with an inter-dependent relationship like that between the spouses to a marriage. Ultimately however the best safeguard to a woman against domestic violence can only be her acquisition of an equal status with her spouse. This is only possible when she is economically empowered and becomes self-reliant, which in turn can only be ensured when the woman or girl child's education is considered as important as a man's education”. It is para 21 of the Judgement delivered by Hon’ble Mr. Justice Sushil Harkauli; for the Division Bench of himself and Hon’ble Mr. Justice Amar Saran; while deciding the Criminal Writ Petition titled Rajeev Verma and Ors. Versus State of U.P.through SSP,Allahabad & Ors.; reported as 2004 (2) JIC 581 : 2004 (2) All CJ 1049 : 2004 (2) ACrR 1903 : 2004 (2) All CJ 1049 : 2004 (49) ACC 72 : 2004 (49) ACC 71 : 2004 (2) All CJ 71.
3. What the Author want to emphasize from above Judgement is, the only way to stop Violence against anybody (including Domestic Violence against Women) is to get the Class of people who are subjected to Violence (here the Females) educated. The Judgement dated 05-Mar-2004, cited above, could properly suggest this remedy, however the Legislation dated 2005 had forgot to write even a single line about it. Thus, the Pleadings in this Chapter will have this point as an Added line, to help to get complete use of this book. The Author had studied this subject from the Act and Rules, various cases and the “Legal Aid handbook-1 Domestic Violence” by the Lawyers’ Collective, Kali for women, A-36, Gulmohar Park, New Delhi-49. Even this Text Book of Lawyers’ collective have no reference to the importance to education’s continuation, to be done at the expenses of the Violent person, under the Supervision of the Court. The Lawyers Collective is a Non Governmental Organisation (NGO) to help the litigants
4. In fact, the concept of Further Education is not a new evolution or discovery. In the Defence Forces, for the Combatants, the last 18 months is meant to do further education, while on duty, which is called “Pre-release course”. In the Jails, it had already started. From this term what is meant is:- (1) Vocational Courses for the females, whether Stitching, Tailoring, Weaving, Typing, Stenography, Computer etc. (2) From National Open School, the education of 10th or 12th, which is completely through Correspondence. (3) B.A, B.Com; M.A, M.Com etc about 130 Correspondence Courses from Open Universities at various States, in the Mother Tongue of the said State; for example Indira Gandhi National Open University (IGNOU). And (4) Courses in various Indian and Foreign languages.
5. In fact, in the Statute and Text Book referred to, the only Remedy given is Monetary compensation and place to reside. At no places, the permanent solution of Further Education is written. It may kindly be noted that, after coming to Court, normally the Richest Husband will boldly file an Affidavit with forged income certificate from neighbourhood C-Class shop that, he is not even earning minimum wages. On the other hand, the attraction of the wife/ live-in-partner will continue like previous. However, during the pendency of the Litigation, if a New Female will emerge, who can help him in his Profession, or Business; or who can find a livelihood by her own vocation of Job Typing or Tailoring, normally that will be an Added Dowry from the side of Court to that Man, may help in reconciliation. It is an unhappy thing that, till now no-one realized this point.
6. If the Legal point raised by Hon’ble Judges Sushil Harkauli and Amar Saran is materialized, one more danger now faced by Women protection homes, will start to reduce and vanish, that is quoted in the words of Hon’ble Ms. Justice Usha Mehra: “the status of state run-homes for women and girls is so bad that we (= judiciary) feel scared to send girls to those places. These are like brothels”. Quoted from the News Item “Judge’s statement upsets women officials”, in the Hindustan Times, New Delhi, Sunday 25-2-2001, page 5. As usual, the officials of the Department of Social Welfare, Govt of NCT of Delhi had protested this comment. But it will remain a fact that, if in-mates of Protection Homes and Litigants at Family Courts or similar Females welfare Courts will have a syllabus to study, and a bright future in their presence, the attraction to Prostitution will be reduced.
7. This book do not want to quote a lot from the Statutes, thus take the place of the Act and Rules, which is available in English and Hindi, in all the shops; also at various web-sites of the Internet. This Book will explain what is Domestic Violence, so that it can be written down in the Pleadings. In the Rules, there is form IV, which prescribes a pamphlet which should be distributed by the Protection Officers vide Rule 8(1)(ii), heading of that pamphlet should read: “Information on rights of aggrieved persons under the Protection of Women from Domestic Violence Act, 2005”. This book is about Pleadings and Conveyancing generally, thus number of pages devoted to this subject is less, consequently entire pamphlet need not be printed.
8. In this Pamphlet, the serial number 2 defines “Sexual violence”, to help in drafting of pleadings, this point is given as elaboration: “Sexual violence: For example – (i) Forced sexual intercourse; (ii) Forces you to look at pornography or any other obscene pictures or material; (iii) Any act of sexual nature to abuse, humiliate or degrade you, or which is otherwise violative of your dignity or any other unwelcome conduct of sexual nature; (iv) Child sexual abuse”. These points had been written with an elaboration at Form-I. Domestic Incident Report also, which have Column 4: “Incidents of domestic violence”, sub column “sexual violence” have one more point: “Forcibly using you to entertain others”. It means, unless the Advocate know how to Interview his client, that is the female if the Complainant, or the male if the respondent; he will not be able to help in Administration of Justice.
9. The Protection of women from Domestic Violence Rules, 2006; which contains above quoted Pamphlet and Domestic Incident Report (like an FIR) are Statutes, vide section 37(3) of the Act, 2005; being they were laid before each House of Parliament. They contain a lot of new provisions, which could not be found anywhere, and discussion had been held to be Immoral till now. However, for any Professional, there is no such thing as Immoral, which he do to complete his duty, without any personal pleasure or pain for himself. For Example, at many hospitals, the Postmortem Room Attendants will have their Lunch right infront of the dead bodies. Normally, after touching a dead body, religions insists taking bath. However, those who want to follow that tradition, will loose their job in a Hospital. Normally, prior to conducting an Operation, the Doctor/ Surgeon will go to the Cadaver (= human being’s dead bodies preserved for studies purpose) Room, and examine the dead body’s internal organs where the operation to be done for a living being. Please remember that, here the Deviant behaviour is not shown by any Professional. His efforts is only to secure the life of those persons who are coming before him. Thus the proverb: do not tell lies before the Advocate and Doctor. After hearing complete truth from the client/ patient, the professional may write lies in the document, but he is eligible to hear the complete truth of his side. After hearing the truth, and after interrogating the client about his case (Note: these are only fiction to practice law in India, where Advocate’s profession is not getting a lot of respect from clients, where they will only dictate what result they want from the opposite party and the Advocate is bound to invent Facts and Documents himself, if he want that client), the Pleadings should be made. This book is to educate the person who want to prepare Pleadings, and this Chapter is about Domestic Violence.
10. The Rule of law had developed through this 2005 Act, because, some incidents which were not a Crime in India got a Forum to redress grievance. Quoted from the Introduction to Lawyers Collective book: “Rape is one of the most extreme forms of sexual violence against women. In India the rape of a woman by her husband is not an offence unless his wife is below 15 years of age, the assumption of law being that a man has a right to sexual intercourse with his wife and she does not have the right to refuse her consent to it. The law is also premised on the assumption that the married woman is the property of her husband. Nevertheless, married women are raped by their husbands and suffer this extreme form of violence without any legal remedy. Absence of a remedy in Indian law against the offence of marital rape is alarming and is a major area which needs law reform”. Now there is a remedy.
11. However, the litigants are not expected by the Lawyers Collective’s book to draft her own complaint. Quoted from the Chapter titled ‘What a battered woman can do’ of the Lawyers Collective book: “You should contact a lawyer as soon as possible …. Your lawyer can also inform you of the consequences of the actions you decide to take, inside and outside the courtroom, and advise you about what the results of any legal action are likely to be … Any facts you fail to discuss with your lawyer could emerge later in Court and might damage your case quite significantly … generally all women in distress qualify for legal aid”. Again in the paragraph named “Procedure for filing a case”, the following is written: “A petition is a written document in which you give the details of your situation and inform the Court of the relief you seek. It is normally prepared by your lawyer, after you have had an extensive interview with her or him”. It means, a NGO is advicing that, an Advocate, either on payment of fees or through Legal Aid should help the victim women. It is to get proper legal advice, and to advice that, what are the points not to be concealed from the Court. Petition is to be prepared, only after detailed interview with the client and not on “Percent basis” with false allegations as to get a prima facie case to stay separate and get maintenance from the Husband, to pay Advocate Fees.
12. To know the legal points about Sex within marriage, kindly read from the Judgement of Hon’ble High Court of Madhya Pradesh, titled: Smt. Shantabai Alias Gourabai W/o Tara Chand. Vs. Tara Chand, AIR 1966 MP 8; this case had been in the LL.B Case Material on Family Law-I during 1998-99 of the Delhi University Law Centre-I, about Impotency. “Para 9. Whether for pleasure or for progeny, intercourse is an essential motive that actuates marriage. It is, therefore, implied in every marriage that both the parties must be capable of coition. The essential object of marriage would be frustrated by reason of impotency of either spouse. Impotency is incapacity to consummate the marriage by actual conjugal intercourse. That incapacity may exist either because of some structural defect in the sex organs of either spouse, or it may be due to mental cause”.
12.1. Consequence of this defect, if with any of the party is, DOMESTIC VIOLENCE. The absence of Sexual Intercourse had been proved by the Doctors to be a cause of Frustration and Violence, in the Animals and Human beings. The word Frustration related to denial of sex is written in the Judgement Linda Constance Edwards Versus William Edwards &Another, 2001 (91) DLT 355 : 2000 LE(Del) 708, in the following words: “the denial of sexual relations causes frustration and misery to the aggrieved party and is likely to destroy the fibre of marriage”. According to a person who rear Rabbits, it is necessary to have both male and female rabbits in a house, otherwise during mating season, the most lovely and peace-loving animal will become very very violent. This point is highlighted in the following judgement: “There is of course sufficient evidence of the respondent/ wife voluntarily depriving the appellant/ husband of her society and co-habitation for a long period. This, however, amounts to mental and moral cruelty to the appellant”. Para 9 of Avinash Prasad Srivastava Versus Chandra Mohini And Anr, 1964 AIR(All) 486. If the wife will show mental and moral cruelty to the husband, he will normally resort to Violence. It will be a mixed question of fact and law that, whether the wife is the person who committed Domestic Violence in such cases.
13. In human beings case, if the female is mentally or physically impotent, and the male do not know how to discuss this problem with elders in the family, he will become violent. If the male is having this defect, the unsatisfied female will show Frustrated and/ or Contamacus/ defiant behaviour, which will again turn into Domestic Violence. Thus the Advocate or the Judicial Officer should be able to interview the parties, separately and together to locate whether this is the problem. Normally, ability to narrate this problem and compel both the parties for treatments will result in decrease in Domestic Violence and it can also be expected that, Alcoholic consumption will decrease with certain males. It is told that, during child-hood, a child will get shy to speak about marriage. However, since the Teenage, till death, a person think only about Sex.
14. What is written here is very important theoretically, but to practice Law in India, it is may not be possible at all. Here the client visits Advocate, not for Legal Advice, but to prepare a particular Pleadings or Conveyancing, and send to the Opposite Party. Normally there is no Consultation Charges, the Advocate do not know how to ask and the Client do not know how to pay. However, these points are written in the Text book, only to demonstrate help the Judicial Officers and Government employees who are having a monthly salary and have duty to reduce Domestic Violence.
15. An Advocate or Judge may have to find out, whether following problems exists in the life of Domestic Violence Complainant and Accused, in the most polite language:-
15.1. uncontrollable aversion to allowing coitus to the petitioner-husband, that is rare variety of frigidity quoad hanc, as described in Shantabai’s case, Supra. In some cases, after having children this frigidity will take place, thus there will be Domestic Violence and no impotence. In such cases, if female is the culprit, why she should get any relief under any law is a question. If male is the culprit, he should be penalized to such an extent that, he should give life-long pension to that female towards whome he is frigid is also an important point, which are, due to SHAME, not discussed openly in India. In the AIR Manual, 5th Edn 1989, Volume 27, following cases are given in this subject as Cruelty; whether as part of impotency or simply denial of sexual relationship to the other party is Cruelty, to get divorces, those cases are as follows:- (i) (1992)2 Pun LR 330. (ii) Srikant Vs. Anirutha AIR 1980 Kant 8. (iii) Manjit Vs. Surendra, AIR 1994 P & H 5. (iv) AIR 1993 Delhi 135. (v) AIR 1987 Delhi 111. (vi) AIR 1987 Delhi 86. (vii) AIR 1986 P & H 308. (viii) AIR 1973 Delhi 206. And (ix) 1978 Rajdhani LR 111. To quote from Dr. Paras Diwan’s Family Law 3rd Edition 1996, published by Allahabad law Agency, at pages 151 and 152, the following may be read: “Peristent refusal to have marital intercourse” is a Mental cruelty to get divorce: (i) Jyotish Vs. Meera AIR 1970 Calcutta 266. (ii) Shakuntala Vs. Om Parkash, AIR 1981 Delhi 53. (iii) Anil Bharadwaj Vs. Nirmalesh, AIR 1987 Delhi 11. (iv) Rita Vs. Balkishan Nijhawan, AIR 1973 Delhi 200. (v) Siruj Mohedkhan Vs. Hafizunissa, AIR 1981 SC 1972. (vi) Shankar Vs. Madhavai AIR 1982 Calcutta 474. (vii) Hanuman Vs. Chandrakala, AIR 1986 P & H 306. These cases are under Sections 12 and 13 of Hindu Marriage Act; and if a lot of time can be spend, a large quantity of Case law can be found in this subject; under various other Marriage and Divorce Acts.
15.2. Premature ejaculations: Hon’ble Mr. Justice Mahinder Narain had been pleased to record the following observations in a Divorce Case, allowing Husband’s Appeal, but releasing wife from the ‘Secondary Impotence’ husband:- IN my view in the case of young, newly married couple, who are anxious and willing to explore each other bodies, it is more likely that. there is an attempt at gentle/erotic touching, of each others genitalia. The husband' version appears to be more natural than that of the wife. It appears that as a result of rapid orgasms of the husband, the wife may have on occasions, in frustration, pulled at the genitalia of the husband, and thereby caused him pain and hurt; by none too gentle tugs. When the wife failed to get the needed responses, she discarded him and went to her parents house. I apprehend that due to social or other pressure the wife has. deposed incorrectly that sexual intercourse was taking place 10 to 15 times a month. This appears to be inconsistent with her conduct of repeatedly going back to her parents. She admitted that out of eight months then parties were living together, off and on, for four months she lived with her own parents. Paras 27 and 30 of the Ashok Sharma Versus Santosh Sharma, 1987 AIR(Del) 63 : 1986 LE(Del) 136 : 1986 (11) DRJ 135 : 1986 RLR 408.
15.3. Defective Private Parts:- Erectile difficulties with male, resulting in his insistence for oral sex, which the female rejects and results in Domestic Violence.
15.4. Whether the parties to a Domestic Violence case are not good companions is another point to find out. To quote from Dr. Paras Diwan’s Family Law 3rd Edition 1996, published by Allahabad law Agency, at pages 98 and 99, the following may be read: “In Barmaswami Vs. Somathamneal, AIR 1969 Madras 124, where the wife was enunch, the question of validity of marriage came after the death of the husband, as a collateral issue. Alagiriswami, Judge equated ‘her’ with an impotent person and held that such marriage was not void but merely voidable. This view is justified on the basis that marriage is not all sex. It is companionship also. If a person can live happily with an enunch, he or she should be allowed to do so and the marriage should not be regarded void. It was in this sense that some Hindu sages and commentators took this view that enunchs have, prima facie, a right to marry; see Kane, History of Dharmashahstra Vol-I, 431”.
16. The next new point in the New Statute is: “Incidents of domestic violence – Sexual violence – Forcibly using you to entertain others”. Hon’ble Justices Dalveer Bhandari and S.K.Agarwal, while deciding a case about Prostitution in Delhi, had accepted the Medical definition that, girls can do prostitution only through offer of oral sex, thus her virginity is not a proof that she is a good moral girl. It was in the case of "Bunny Thunny D Guys Den Beauty Parlour", New Delhi. Relevant extracts from the Judgement is re-produced below:- Shalu Rawal Versus State of N.C.T.of Delhi, 2003 (104) DLT 550 : 2003 LE(Del) 205, the Judgement delivered by Justice Dalveer Bhandari:- Para 14: Mr. K.T.S. Tulsi, learned Senior Counsel, appearing for the petitioners, challenged the order of the learned ACMM on various grounds. He submitted that issuing of the process in the said case on the allegations mentioned is manifestly erroneous and unsustainable. …. He further submitted that the medical examination revealed that hymen of petitioners 1,2 3 were intact. Petitioner No. 1, 4 and 7 were menstruating on the date of the alleged incident and this fact itself was sufficient for the learned ACMM to be convinced that at that stage of their body they could not have been offered for sex. Para 24. Mr. Gopal Subramaniam learned senior counsel appearing on behalf of respondents 4 to 9 addressed the argument on the main concern of the Court belonging to Medical Report in which hymen of three girls have been shown as intact. He submitted that it is uncommon feature to conduct hymen test under Immoral Traffic (Prevention) Act 1956 (ITP Act). In the written submissions filed by him, it is mentioned that hymen test has been conducted because of the influence, connection and pressure used by the family members of the accused persons. He questioned the veracity of the test. He referred to page 571 of Forensic Medicine and Toxicology, Volume-II, by J.B. Mukherjee. He submitted that it is a specialised job of the Specialist to conduct the hymen test. He again referred to page 75 of Taylor's Principles and Practice of Medical Jurisprudence, 13th Edition. It is mentioned that the hymen has got vast and various variances as even after several intercourses the hymen can still remain intact. And para 27. In the written submissions, it is also mentioned that these days due to high risk of the contaminating diseases like, AIDS and other sexual diseases majority of the persons going to the prostitutes prefer oral sex. It may be pertinent to mention that the services offered to the decoy customer was of oral pleasure, therefore, this possibility cannot be ruled out that the accused petitioners whose hymen as allegedly shown as intact might be indulging only in oral sex.
17. In fact, the above Legal Principle had been reported, as a Social problem among teenaged college students, by various News papers of Delhi, while reporting about Sexual Activities among teenagers and College Students. When compelled, to not to loose the “Boy Friends”, the Girls do perform oral sex, with two intentions: (1) to retain virginity till marriage and (2) to prevent pregnancy. It have nothing to do with AIDS or Sexual diseases, as told in the above case, ‘para 27’. It is medically proved that, if the Girl is an AIDS Patient, and if the customer have an invicible injury in his organ due to nail’s scratch and if her saliva touches blood, he can get infected. She can even cause that injury with her teeth, to infect him with AIDS. Similarly, if the male’s semen falls in the mouth of the woman and she have mouth ulcer/ wound in her mouth, and if he is an AIDS patient, she will get infection. Thus, the word Oral Sex is not about High Risk, it is only to prevent the Girl from getting pregnant, or from loosing her Virginity.
18. In fact, the points explained in this Judgement point to be brought in the knowledge in the Marriage Market, to the prospective grooms, and their parents; that if they want a lot of Dowry and a virgin girl as wife, are they really getting a Good Girl or a Girl who had been compelled to do Oral Sex to her Beauty Parlour’s male customers, to make money to finance her marriage.
19. In the Domestic Violence Cases, the importance for this case is, merely with Medical Evidence about private parts, it cannot be held that, there was no sexual violence on the female “to entertain others”. What the Hon’ble Court may be pleased to investigate is, whether the Complainant lady’s husband/ custodian (may be parents themselves) gained a lot of money without knowing source, or got a Contract or got a Promotion, for which the Complainant’s immoral services had been obtained, through those persons who had been complained to be “entertained”. In a Fiction, the imagination know no Bounds. In Malayalam Language, there had been a Fiction story, in which a Mother is willing to sleep with