You Will Never Thought That Knowing 5 Top White Collar Crime Cases In India You Never Know Could Be So Beneficial!

What is White Collar Crime?

White–collar crime or a corporate crime refers to financially motivated, nonviolent crime committed by government and businesses professionals. Below are some of the top 5 white collar crime cases in India.

1. Harshad Mehta Securities Fraud (1988-1995)  

Protagonist – Harshad Mehta 

Harshad Mehta was a stockbroker, and he established his security firm in 1990, “ Grow More Research & Asset Management Limited”. He was a reputed name in the stock market, and is considered the ‘Sultan of Dalal Street’, investors blindly followed Mehta’s footsteps.[1] He took a loan of huge amount from the bank and purchased the scrips at high prices, thereby creating a false market. He misused his status and manipulated the stock prices of certain scrips for his gain.[2] This resulted in unnatural pumping of money in the stock markets causing an abnormal rise in the price of these shares. This act of Harshad Mehta though being immoral was not illegal. The problem arose when Mehta obtained capital to invest in the stock market by misappropriating bank’s money. This misappropriation of money falls in the purview of money laundering. He earned approximately ₹ 5000 crores.[3] The then renowned journalist Sucheta Dalal exposed this scam. This unabated selling caused the market to loose ₹ 0.1 million in a day. This was the biggest ever crash which the Indian stock market had ever experienced. To curtail such transaction various changes were brought in SEBI rules and regulations.

2. Satyam Scandal: biggest ever corporate accounting fraud

Protagonist – B. Ramalingam Raju

This scam came into light on 7^th January, 20009 by way of confession letter written by B. Ramalingam Raju (Founder and chairman of Satyam Computers Services Limited) published in Times of India. The letter confessed about manipulating his books of account by overstating the assets and understating liabilities.[4]

The books of accounts are the reflection of the company’s financial standing. They act as an important tool on which investors can rely on before investing their money. Accounts books were manipulated to cheat investors and shareholders.

The whole scam cost approximately ₹14,000 crore and is considered to be an important factor which contributed to the recession of 2009.[5]

In this scandal, SEBI hit back strongly, holding Ramalinga Raju and nine major associates and guilty of insider trading, indulging in fraudulent and unfair trade practices. SEBI directed accused to pay approximately ₹3000 crore within 45 days and also debarred them from accessing the security markets in any way for 14 years.[6] SEBI managed to lash back strongly to ensure such a scam never happened again.

3. Ketan Parekh Security Scam

Protagonist – Ketan Parekh  

Parekh was involved in circular trading and stock manipulation through 1999-2001. He borrowed from banks like Global trust Bank and Madhavpura Mercantile Co-operative bank and manipulated a host of stocks known as K-10 stocks.[7] The scandal amount was approximately ₹ 1,250 Crore. He has spent only one year in jail, but he has been debarred from trading in the Indian Stock market till 2017.

Although his name continues to haunt the street as he has been accused of playing from backstage. An Intelligence Bureau Report alleged Parekh and his associates to be engaged in circular and insider trading through front entities.

4. Saradha chit fund case

Protagonist- Sudipta Sen  

Saradha Group financial Scandal was a major financial scam and alleged political scandal caused by the collapse of Ponzi scheme run by Saradha Group, a consortium of 200 private companies that were believed to be running collective investment schemes popularly and wrongly referred to as Chit Fund.[8] This group collected around ₹200 to ₹300 billion from over 1.7 million depositors, promising a multiplied hefty sum in return in the form of cash or real estate and other assets.[9]

At least 10 Saradha group entities were alleged for committing fraud through public money-pooling activities. Amidst continuing public protest against the group’s alleged fraudulent activities, SEBI barred Saradha Realty India and its managing director Sudipta Sen from the securities market till it winds up all the Collective Investment Schemes (CIS) and makes the refund, as the same amounts to CIS Violation.[10]

The central government through income tax department and Enforcement Directorate launched a multi-agency probe to investigate the Saradha Scam and similar Ponzi scheme. Later, in May 2014 Supreme Court of India, alleging possible international money laundering, severe regulatory failures an alleged political nexus, referred this case to CBI, India’s federal investigation agency.[11] Many prominent personalities were arrested for their involvement in the scam including two Members of Parliament- Kunal Ghosh, Srinjoy Bose, former West Bengal director general of police- Rajat Majumdar, a top football club official Debabrata Sarkar, Sports and Transport minister in the Trinamool Congress government Madan Mitra.

This scam is often compared to the Sanchayita investment scam, a multi-crore rupees scam that occurred in West Bengal in the 1970s, complaints related to the same have to lead to the formation of Prize Chits and Money Circulation Schemes (Banning) Act, 1968.[12]

5. Punjab National Bank Fraud

Protagonist- Nirav Modi  

Nirav Modi is a diamantaire, elite jewelry designer and India’s 85^th richest person.

Bank said that Modi and the companies linked to him colluded with its officials to get guarantees or Letter of Undertaking to help fund buyer’s credit from other overseas banks.[13]

PNB’s preliminary investigation showed that two officials of the bank had fraudulently issued Lou’s to the said firms without following the due procedure. These Los were then transmitted across the SWIFT messaging system, based on which the credit was offered to the said firms.[14]

PNB alleged that the funds ostensibly so raised for the purchase and sale of diamonds were not used for the purpose.

PNB issued to the stock exchange, about the detection of the fraudulent and unauthorized transaction. PNB has incurred $1.8 billion fraud, one of the largest to be detected in Indian Banking Sector.[15]

Read Also: Taxpayers Don’t Fall For These Types of Tax Scams in India

[1] “THE GROWTH OF SEBI – FROM HARSHAD MEHTA TO SUBRATA ROY” (PDF) <https://lawsdocbox.com/Legal_Issues/73899378-The-growth-of-sebi-from-harshad-mehta-to-subrata-roy.html> accessed May 13, 2019.

[2] Ibid.

[3] Ibid.

[4] Datta D and Datta D, “Ramalinga Raju And The Incredible Story Of India’s Greatest White Collar Crime” (HuffPost India July 15, 2016) <https://www.huffingtonpost.in/devangshu-datta/ramalinga-raju-and-the-in_b_7032688.html> accessed May 13, 2019.

[5] Ibid.

[6] Ibid.

[7] Nimmi (KETAN PAREKH SCAM) <https://www.indianmirror.com/indian-industries/indian-scams/ketanparekhscam.html> accessed May 13, 2019.

[8] “Here’s Why Saradha Was Not a Chit Fund but a Ponzi Scheme” (first post-December 20, 2014) <https://www.firstpost.com/business/heres-why-saradha-was-not-a-chit-fund-but-a-ponzi-scheme-739597.html> accessed May 13, 2019.

[9] Ibid

[10] “Saradha Chit Fund Scam: Mercedes of Sudipta Sen’s Son Seized” (The Economic TimesMay 7, 2013) <https://economictimes.indiatimes.com/news/politics-and-nation/saradha-chit-fund-scam-mercedes-of-sudipta-sens-son-seized/articleshow/19937529.cms?from=mdr> accessed May 13, 2019.

[11] Reporters BS, “SC Jolt for Mamata: CBI to Probe Saradha Scam” (Business StandardMay 9, 2014) <https://www.business-standard.com/article/current-affairs/sc-jolt-for-mamata-cbi-to-probe-saradha-scam-114050900345_1.html> accessed May 13, 2019.

[12] Mukherji UP, Bandyopadhyay K, and TNN, “Sanchayita Haunts Saradha Victims | Kolkata News-Times of India” (The Times of IndiaMay 13, 2019) <https://timesofindia.indiatimes.com/city/kolkata/Sanchayita-haunts-Saradha-victims/articleshow/19656723.cms> accessed May 13, 2019.

[13] “Nirav Modi Case: How PNB Has Defrauded of Rs 11,400 Crore” (Business TodayMarch 15, 2018) <https://www.businesstoday.in/sectors/banks/nirav-modi-case-pnb-fraud-11400-crore-scam-ed-cbi-raid/story/270708.html> accessed May 11, 2019.

[14] Desk BQ, “The Nirav Modi-PNB Fraud Case: Everything We Know So Far” (BloombergQuintFebruary 17, 2018) <https://www.bloombergquint.com/law-and-policy/the-nirav-modi-pnb-fraud-case-everything-we-know-so-far> accessed May 11, 2019.

[15] Nair V, “The Nirav Modi Case: How The $1.8 Billion Fraud Detected At PNB Unfolded” (BloombergQuintFebruary 19, 2018) <https://www.bloombergquint.com/pnb-fraud/the-nirav-modi-case-how-the-18-billion-fraud-detected-at-pnb-unfolded> accessed May 11, 2019.

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Seven Things You Need To Know About Section 467 IPC : Provision And Punishment Today

Introduction To Section 467

Section 467 is an essential part mentioned under the chapter 18th of the Indian Penal Code, 1860, titled “Offenses related to the property and the documents.” Section 467 basically deals with forgery of a valuable security or a will etc. but before going further first, we need to understand the meaning of the term “Forgery.” So basically it’s a kind of white-collar crime which is generally referring to the false making of an any legal data with the mala-fide intention to defraud a person other than himself or herself. The offense is not an offense until the false document or legal instrument was actually used in the commission of a crime to defraud the person other than himself or herself.

Section 463 of the penal code explains the term “Forgery” in detail, i.e., Any Person who creates or makes –

1. False Document (wholly or partly)
2. False E- Record (electronic record)
3. with the mala – fide intention to cause injury
4.  to the public at large or any person other than himself or herself.

Reasons prescribe for creating such false legal documents:

1. to give legal support to any type of claim or any type of title, or
2. to take part in the person’s property, or
3. to enter into any agreement, enforceable by law (implied or express), or
4. with the intention to defraud someone.

So basically, forgery simply means any kind of a false document which is much essentially concerned with an altered object. Counterfeiting is a similar term which is used in the context of forging a currency or money. And in addition, it’s not only about forging money or currency but consumer goods some times also be counterfeits with a specific reason if those goods aren’t manufactured by the designated manufacturer who has given or flagged by the trademark symbol or given any kind of label with the same.

SECTION 467 – Indian Penal Code – Forgery of valuable security

It states that, Any person who creates a false legal instrument,

1. Which appears to be valuable security, or
2. A  Will, or
3. A legal authority to adopt a son, or
4. which purports or appears to be giving legal authority to the person other than himself or herself to make any valuable security, or
5. to transfer any valuable security, or
6. to receive or deliver any property (movable, immovable, money), or valuable security, or
7. Any legal instrument which appears to be receipt of money acknowledging the payment, or
8. A receipt acknowledging the delivery of any property(movable in nature) or valuable security.

So, Section 467 of IPC  is a forgery of valuable will, etc. (mentioned above in detail). Under Sec. 467 – merely forging that legal instrument or document is sufficient for punishment under this, even if that legal instrument may not be used for forgery and no money is obtained by that document. In simple term, possession of that legal instrument or any document and their intention to use that is more than sufficient to convict the person. E.g.,  if any type of forged treasury bond is found with a person for Rs. 25 Lacs, then, it should be seen as, the law will assume that the Bond was forged with the mala – fide intention is to gain Rs.25 Lacs, in process that person should come under the ambit of section 467, convicted and got punished under the said provision. For example, fake treasury bonds, fake wills, etc.

The offense under this section (section 467) is considered as an extended form of forgery or aggravated form. By seeing the punishment itself, one can determine the seriousness of this offense. Where any person other than himself or herself, who falsely signs an instrument which is legal in nature or document for the purpose of creating it a valid document in the eyes of the law, then he or she is guilty and may be convicted for signing a false legal document. As such copying, any legal database or taking the signature of an agent on a blank draft form was held to be an offense under section 467. Also, getting registered a sale deed by impersonating the real owner is punishable under this section. The first and foremost condition to convict under this section is that person forged anything which could be considered as valuable security like Any certificate forged by a candidate seeking admission in any institution was held to be not guilty as the certificate does not come under the ambit of a term “valuable security.” Dishonestly or fraudulently collecting the money sent by any means (includes online transaction + Money orders) personating as the payee (the person who pays) is punishable and under this section (section 467).

One more section under this chapter, which has a significant place in Section 468 of the Indian Penal Code, which deals with “Forgery with the purpose of Cheating.”The reasons for discussing this section under this as many of the personality or legal fraternity were in the opinion that both the section (Section 467 and 468) are similar but they are not, the only thing which is absent and should be considered while convicting a person is, the person who is doing this is doing with any valuable security, and in another with the purpose of cheating only, the reason is under section 467 there must be a false representation which deals with the “valuable security” and will but under section 468, with the purpose of cheating only is the essential criteria and in authors opinion the distinction is must because there is a vast difference between both the section when one examines their punishment clause because under this (section 468) the punishment prescribed by the lawmakers is imprisonment which may extend up to 7 year or fine or both and in other (section 467) the offense is considered more heinous than Section 468.

Punishment 

Imprisonment for Life or 10 Years or Fine or Both. The offense under this (section 467) is Non-cognizable and non-bailable (this only signifies the seriousness of this particular section) and triable by Judicial Magistrate First Class.

Simple Guidance For You In Section 323 Of The Indian Penal Code, 1860

INTRODUCTION TO IPC 323

The Indian Penal Code covers the offense of hurt under Chapter XVI, i.e., “Offences Affecting Life.” Section 323 punishes voluntary causing of hurt under the same.

The provision laid under Section 319 reads as: “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.”

The important points for establishing an offense of under Section 319 are:

• Firstly, bodily pain caused should be physical. In other words, such pain should not be emotional or mental.
• Secondly, infirmity includes temporary mental impairment, hysteria, or terror.
• Thirdly, communicating diseases is also a cause of ‘hurt.’

The courts have taken a mixed approach to the third point. For example, in the case of R v. Clarence[1], there was a transfer of venereal disease from the husband to wife. The husband resisted from informing his wife in spite of knowing about his condition. Because if she had come to see, she would not have agreed for sexual intercourse. Contrarily, the court held that the husband was not guilty of causing ‘hurt.’

It is differentiated from the offense of ‘Grievous-Hurt[2]’. It is of a graver intensity as compared to ‘hurt’ and thus, lesser punishment is applicable in case of hurt.

VOLUNTARILY CAUSING HURT

A small case under Section 319 is not punishable. Thus, IPC demarcates a separate offense for hurting voluntarily or intentionally. Section 321 states: “Whoever does any act to thereby cause hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said, “voluntarily to cause hurt.”

In Hanif Usmanbhai Kalva v. State of Gujarat[3], the court has discussed the essential ingredients which constitute the offense under section 323 IPC. These areas under:

1. “The accused caused hurt to another person;
2. He caused such hurt voluntarily;
3. S. 334 does not protect his act.”

Exception

Furthermore, these provisions under Section 321 is subject to Section 334 of the Indian Penal Code. Anyone who acts unintentionally or without any knowledge and causes hurt to a person who provoked him would have a reduced punishment as a result of lack of intention.

However, it is necessary here that the provocation must be grave and sudden.

Punishment

A person causing hurt voluntarily is punishable with an imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both under Section 323 IPC.

However, this punishment is subject to Section 334 which provides for imprisonment of either description for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both in case of doing the act under grave and sudden provocation.

Read Also: Voluntary Causing Hurt: Provision and Punishment

Other Forms Of Voluntarily Causing Hurt

1. Voluntarily Causing of Hurt by Dangerous Weapons or Means

Section 324 specifically defines ‘voluntarily causing of hurt by dangerous weapons or means’ as an offense. The special circumstances of voluntarily causing hurt laid down under Section 324 are by means of:

1. an instrument for shooting, stabbing or cutting, or
2. an instrument which, used as a weapon of offense, is likely to cause death, or
3. fire or any heated substance, or by means of any poison or any corrosive substance, or
4. explosive substance, or
5. the substance which is harmful to the human body to inhale, to swallow, to receive into the blood, or
6. any animal.

Likewise, imprisonment of either description for a term which may extend to three years, or with fine, or with both, is enforceable in case of voluntary hurt by dangerous means.[4] And it is also subject of Section 334.

2. Voluntary Hurt to Extort Property, Or To Constrain To An Illegal Act –

Voluntarily hurting a person to extort any property or valuable security from him or any person interested in him or constraining to do anything illegal is separately punishable with an imprisonment of either description for a term which may extend to ten years, and also relevant fine.[5]

3. Causing Hurt by Means of Poison to Commit an Offence – 

Section 328 of the IPC says that, whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt is an offender.

Furthermore, such an offense would be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[6]

4. Voluntary Hurt to Extort Confession – 

Voluntarily hurting a person so as to extort any confession or information from either the sufferer or anyone interested, which may lead to the detection of an offence or misconduct and vice versa, is punishable with imprisonment of either description for a term which may extend to seven years, and also makes a person liable to fine.[7]

Illustration: Torturing a person in order to induce him to point out where certain stolen property is deposited makes a person guilty of an offense under Section 332.

5. Voluntary Hurt by Endangering Life in Public – 

Whoever hurts any person by doing any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.[8]

CONCLUSION

Thus, intentional or voluntarily hurting anyone is a punishable offense. Section 323 of the IPC punishes it accordingly. In addition to this, several separate offenses are also formed in furtherance of a voluntary act.

[1] (1889) 22 QB 23.

[2] Section 322, Indian Penal Code 1860.

[3] Criminal Misc. Application No. 3120 of 2014.

[4] Supra note 2, Section 324.

[5] Ibid, S. 327.

[6] Ibid, S. 328.

[7] Ibid, S. 332.

[8] Ibid, S. 337.

Never Underestimate The Influence Of Criminal Provision Of Defamation – Section 499 And 500 Of IPC

Defamation is an oral or written statement that injures someone’s reputation. Section 499 and Section 500 of IPC deals with the defamation as an offense. It is considered as the statement of fact, which is unprivileged and not true, that must harm someone’s reputation, either by spoken or written, and the same must be published before the third party. The term Defamation covers mainly the false allegation or communication, which tarnished the reputation or decreased the respect that they hold in the society at large. Written defamation is known as “libel,” which is also considered as the permanent form of the defamation,  while spoken defamation is known as “slander.” Both forms of defamation, i.e., libel and slander, derive its origins from English common law, but they are not treated as distinct from each other in Indian jurisprudence.

Every person has a right to have his reputation preserved free from the violation. This right of reputation is acknowledged as an inherent personal right of each and every person as part of the right of personal security under article 21 of the Constitution of India and also considered as one of the most important natural rights. An affection towards reputation inspires people to do great things, acquire fame and name, which is the mainspring of life in every walk of life. The main objective of the provision of the defamation is to protect one’s reputation, honor, and integrity in society.

Defamation in India at present

In India, defamation can be seen as both Civil as well as criminal offenses. The Sufferer or the person who got defamed is offered a legal remedy in both civil as well as criminal. In civil law, the remedy is covered under the Law of Torts where sufferer or victim may go to High Court or any subordinate courts for compensation or damages in monetary form and c, Section 499 provides the definition of “Defamation” and  legal remedy which is the punishment of simple imprisonment which may exceed up to 2 years or Fine or Both, defined under section 500 of the Indian Penal Code, 1862.

Section 499 of the IPC defined as

A person or anyone, by his words either spoken or  which shown as a clear intention to be read, or by signature or by any kind of representations which is visible, makes or publishes any charges or allegation which refers any person, intending to harm, or  have knowledge or having a reason to make believe that these kinds of allegation will harm, the reputation or dignity of such person, is to be understood by, except in the case hereinafter expected to defame that person.

The section further goes on to provide some other vital explanation to determine what would create or constitute defamation. Defamation under the IPC may constitute an imputation of a deceased person that would harm the reputation of that person if he is alive and showing clear intention which may be hurtful to the feelings and emotions of their family or any other relatives. It may also amount to defamation to make an imputation refers to an association or company or any collection of persons as such.

The Section however also state that no imputation is said to injures a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the respected character or moral or intellectual character of that person, or lowers the character of that person in respect of their caste or of their calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a disgusting state, or a state generally considered as disgraceful.

Section 499 of the IPC also explain some exceptions. These include “imputation of truth” which is essentially required for the “welfare of the public” and thus has to be published, on conduct of government officials which involves public duty, the act of any person touching any public question and merits of the public performance, if someone publishes reports of proceedings of Courts, merits of the case decided in Court of law or act and conduct of witnesses and others concerned with, etc.

Defamation under section 499 and Section 500 IPC vs. Freedom of Speech under Article 19(1)(a): –

The law of the defamation is not punishable in many countries or as we can understand by the way that defamation laws are not criminal laws in some countries of the world, for that the same reason a renowned lawyer-politician Mr. Subramanian Swamy along with several other petitioners (Rahul Gandhi, Mr. Kejriwal, etc.) came together to challenge the constitutionality of criminal defamation, i.e., (Sections 499 and 500 of the IPC) before the apex court i.e., Supreme Court.

 a)- Reason behind the Criminal Provision of Defamation (u/s 499/500) was challenged: –

The basic reason was that it was an unreasonable restriction on the constitutionally-guaranteed Right, i.e., Right to Freedom of Speech and Expression enshrined under Article 19(1)(a) of the Constitution of India. Section 499 of the Indian Penal Code gives us the Right to sue for Defamation if  the person’s reputation was damaged or intended to damage by any other, and the petitioner challenged this on the ground that this was prima facie infringement of Freedom of Speech and Expression provided by the Constitution of India under Article 19(1)(a).

 b)- Some of the arguments that why this criminal provision of defamation(u/s 499/500) must declare unconstitutionally: –

Firstly, Criminal provision of the defamation (u/s 499/500) do not constitute a “reasonable restriction” on speech, and even truth is not an exact defense because the defense only works when the statement is for the public good, which is a question of fact by the court. This could be arbitrary because Instead of making the plaintiff prove that the accused made a false statement, section 499 gives the accused the burden of proving that the statement was not only true but also for the welfare of the public at large.

Secondly, mere on the allegation, a magistrate may issue criminal process that the accused conspired with the person who actually made the allegedly defamatory written statements, also  a criminal suit u/s 499 can be filed even for speech given by the political leaders, which is considered as the most protected speech to sustain democracy.

Lastly, there is also an argument that it is not clear even why the criminal provision of defamation has existed because petitioners are in the opinion that civil remedy is more than sufficient for that.

 c)- Court Held: –

However,  the apex court of the country, i.e., the Supreme Court upheld criminal defamation (u/s 499/500) and its constitutional validity. The judgment delivered on May 13, 2016, by the Supreme Court in Subramanian Swamy V. The Union of India (“Judgement“) was delivered by Justice Dipak Misra, with Justice Prafulla C. Pant. The Judgment in the case started by analyzing the meaning of the terms ‘defamation’ and ‘reputation’, and their interaction of these terms with the right of the freedom of speech and expression mentioned under Article 19(1)(a) of the Indian Constitution.

The reputation of an individual must be secured as it was included in the protection of ‘dignity’, which is a very important aspect of the constitutionally protected right to life under article 21 of COI. Also, Defamation, in the right to freedom of speech and expression guaranteed under Article (19)(1)(a)  is subject to reasonable restrictions. The Judgement also recognizes principles of reasonable restriction are that the restrictions which should serve the interest of public and should not be excessive; and held that reputation of an individual is a basic element enshrined under Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity.

In addition, the court also emphasize for upholding the validity of the criminal defamation is online defamation, in the age of the Internet it can be effectively countered only by making it a criminal offense, and this particular law is concerning part of the state’s “compelling interest” to protect the dignity and reputation of citizens.

Finally, the Supreme Court holds that this criminal provision of defamation is not disproportionate. The reasonableness and its proportionality of a restriction are examined from the standpoint of the interest of the general public, and not from the person upon whom the restrictions are imposed. Applying this, the Court adjudged that criminal defamation law (u/s 499/500) to be proportionate. Further, the Supreme Court dismissed the petition which challenges the constitutionality of the criminal provision of defamation, holding that it was a reasonable restriction on the right to freedom of expression enshrined under Article 19(1)(a) of the Constitution of India.

 A person is bound to allow the existence of something that one may dislike or disagrees within other words -criticism, dissent, and discordance, but not expected to tolerate a rush which may tarnish the reputation of that person. (SC in Subramanian Swamy V. The Union of India [AIR 2016 SC 2728]  ).

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Learn The Truth About Domestic Violence Act- An Overview In The Next 60 Seconds.

The position of women in Indian society has never been stable. Their journey started from enjoying equal rights in the ancient period to struggle against discrimination in the medieval time and fighting for their rights in the modern era.

Women have been facing abuses since long back. They have not only suffered emotionally, mentally, verbally, religiously but also physically. This all often takes a wrong turn and women end up suffering from marital rape, dowry death, suicide, acid attacks, beating, female genital mutation, etc.

According to former Union Minister for Women, Renuka Chowdhary 70% of women in India are the victims of Domestic Violence.[1]

These practices became so prevalent and entrenched that the Government of India took a step forward and implemented an Act on 13 September 2005 for the protection of women from all kind of violence. The Act came to be known as The Protection of Women from Domestic Violence Act, 2005.

Domestic Violence – Definition

The word ‘domestic violence’ has been defined in Section 3 of the PWDVA, 2005. The definition has a significant amplitude and covers all types of abuses against women. It covers physical, sexual, verbal and emotional, and economic abuse.

The sections read as follows-

For this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

1. harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or
2. harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
3. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
4. Otherwise, injuries or causes harm, whether physical or mental, to the aggrieved person.[2]

The framework of the definition has been taken from ‘UN Declaration on Violence Against Women and a Model Code’.

Read More Here: Domestic Violence Act

Who can file a complaint under the Domestic Violence Act?

Any ‘aggrieved person’ as per Section 2(a) of the Act can seek relief.

“Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.[3]

• It is very clear from the definition that only a female victim can be an ‘aggrieved person’.
• The victim should have a ‘domestic relationship’ with the respondent. According to Section 2(f), the domestic relationship includes a relationship by means of living together or sharing household and is related to each other by consanguinity, marriage, relationships in nature of marriage, adoption, etc.

The victims of Live-in Relationships are also protected under the Act. This right has been recognized in various judgments like Khusboo v. Kannimal[4]; Chanmuniya v. Virendra Kumar Singh Khushwaha[5].

Against whom the complaint can be filed?

Section 2(q) defines ‘respondent’ as follows:

“Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;

Therefore, from the above definition, it is very clear that the victim can file a suit against her husband who commits such act against her or any other male partner with whom she is in a live-in or the relatives of the husband/male partner, i.e. the in-laws.

Who may or may not be included in the ambit of relatives is of utmost importance and differs from case to case.

This was upheld in Sandhya Wankhede v. Manoj Bhimrao Wankhede[6].

Relief that can be sought by the victim under the Act

The Act recognizes many reliefs to empower a woman to tide over an emergency.

If the victim obtains relief under this law that does not mean she is barred from approaching courts under the personal law. The PWDVA is a secular law and runs parallel to personal laws.

The Act provides the following reliefs-

• Counseling (Sec. 14)

The magistrate before whom the parties are presented may direct either the parties or the party who requires to the counseling process.

• Protection Orders (Section 18)

The magistrate can issue protecting order against the respondent. This is generally done to keep the victim in a protective shell so that the respondent doesn’t reach out to her for causing violence.

A  Protection Officer, preferably a woman, is appointed by the concerned government to file a domestic incidence report.

• Residence ( Sec. 19)

The Magistrate can restrict the respondent from the place of the victim. Further, the respondent cannot evict the victim from the place of the residence.

• Maintenance (Sec. 20)

Under Section 20, the respondent may be directed to provide monetary compensation to the victim for any loss she has accrued, be it property loss, medical loss or any other financial loss.

• Child’s Custody (Sec. 21)

The custody of the child should be in the victim’s hand. The father of the child may be provided visiting rights.

Retrospective effect of the Act

The Delhi HC in its 2012 decision of V.D.  Bhanot v. Savita Bhanot [7]viewed that “even a wife who had shared household before the DV Act came into force would also be entitled to the protection of this Act”.

Therefore, giving the aggrieved party the right to file a suit even for the acts which have been committed before the enforcement of the Act.

Citation

[1] ‘India tackles domestic violence’ (BBC News, 26 October 2006) <http://news.bbc.co.uk/2/hi/south_asia/6086334.stm> accessed 3 February 2019

[2] The Protection of Women from Domestic Violence Act 2005, s 3

[3] The Protection of Women from Domestic Violence Act 2005, s 2(a)

[4] Khusboo v. Kannimal (2010) 5 SCC 600.

[5] Chanmuniya v. Virendra Kumar Singh Khushwaha 1 SCC 141.

[6] Sandhya Wankhede v. Manoj Bhimrao Wankhede (2011) 3 SCC 650.

[7] V.D. Bhanot v. Savita Banot(2012) 3 SCC 183