Respondent

Partner with respondent.net
Home

Law

New York Westchester County Child Custody Jurisdiction Testimony Provisional Order Frivolous Lawyers Attorney

Author: Atchuthan Sriskandarajah

In the Matter of Stanley F., Petitioner, v. Marlene F., Respondent

Family Court of New York, Westchester County

July 7, 1989

 

Facts:

Petitioner father by a motion brought on by an order to show cause sought temporary custody of the parties' two children. Temporary custody was granted to petitioner pending a hearing concerning the mental health of respondent mother and its effect, if any on the subject children.  Respondent filed a cross motion seeking an order to vacate the provisional order giving petitioner temporary custody on grounds that Ontario County, Canada was the proper place of jurisdictional adjudication of the issue of custody. and not the State of New York, has jurisdiction as there is a pending divorce action currently before the Supreme Court of Ontario, Canada, wherein custody is an issue. Respondent further contends that an Ontario County Supreme Court order of custody granting respondent sole custody of the two children is still in full force and effect. Law Guardian for the children, having been given an opportunity to submit papers on the issue of jurisdiction, chose not to do so.

Issues:

Whether the respondent possessed any mental deficiency which would have a detrimental effect upon the children if they were to be in her custody?

Whether the state of New York had jurisdiction over the issue?

  • Whether the respondent's motion for a fine against petitioner for bringing a frivolous motion should be granted?

Discussion:

This court held that during the fact-finding hearing which consisted of two full days of testimony, each side presented experts who had examined and evaluated the mother and subject children. At the conclusion of said hearing, the court determined that the mother did not possess any mental deficiency that would have the effect of impairing the health, safety or welfare of the children if they were to be in her custody. Accordingly, this court vacated that portion of the order to show cause dated June 16, 1989 which placed temporary sole custody in petitioner father, effective immediately.

This court held that based upon petitioner's assertion that the children were in danger of being physically or emotionally harmed if they were to remain in the care of their mother, this court acceded to respondent's request for New York to exercise jurisdiction solely for the limited purpose of determining whether, in fact, an emergency situation existed. Testimony at the hearing on the above matter having shown that an emergency situation does not now exist, the State of New York no longer has jurisdiction under the "emergency" section of the statute. In fact, for New York to exercise jurisdiction in the instant case would be contrary to the purpose and intent of the UCCJA which is to "avoid jurisdictional competition and conflict with courts of other states". In the instant case, the marital domicile of the parties was in Canada, and the respondent was brought up in Canada and lived there until recently. As for the children, they have spent most of their lives in Canada, including going to school there, and have grandparents there. In addition, respondent has a longstanding relationship with doctors in Canada who would be more knowledgeable than those in New York with regard to current and past situations. Further, a separation agreement and an order of custody, written and issued in Canada, and the pending divorce, must all be interpreted under Canadian law. Based upon the foregoing, maximum contacts with Canada plus access to relevant evidence there mandate that Canada retain jurisdiction

This court held that the respondent's motion for a fine against petitioner in the sum of no less than $ 5,000 for bringing a frivolous motion is denied. A parent's belief that court intervention is needed to protect the interests of a child based upon what he or she believes to be an emergency situation cannot be deemed frivolous. Testimony in the instant case clearly indicated that some of petitioner's assertions as to what happened did actually occur, and even though medical testimony as to an emergency situation proved him to be wrong, petitioner's action did not rise to the level of being frivolous.

Conclusion:

This court hence vacated the provisional order granting petitioner father custody. The court also granted respondent mother's cross motion on grounds that there were existing custody orders effective in Canada, which had jurisdiction over the dispute.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content

Article Source: http://www.articlesbase.com/health-and-safety-articles/new-york-westchester-county-child-custody-jurisdiction-testimony-provisional-order-frivolous-lawyers-attorney-3468530.html

About the Author

The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts.  The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law.  The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia.  The Maryland offices are in Montgomery County & Baltimore.  The Massachusetts offices are in Boston & Cambridge.  The New York office is in New York City.  The North Carolina Office is in Charlotte, NC which is in Mecklenburg County.  The California office is in Orange County, CA.

The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.

Is a NY conviction for criminal sale of marijuana in the 4th degree an aggravated felony?

Author: Nicklaus Misiti

In Martinez, the Respondent was convicted twice for the same conviction at issue here, that being criminal sale of marihuana in the fourth degree, a misdemeanor, in violation of N.Y. Penal Law § 221.40.  In Martinez, the issue was whether despite these convictions the Respondent was eligible to apply for Cancellation of Removal or whether he was ineligible as an aggravated felon.  In Martinez, the Court held that §221.40 is not an aggravated felony and the burden is not on the Respondent convicted of such a crime to show that he is not an aggravated felon.  

             In their analysis the Second Circuit acknowledged that NYPL §221.40 is a broad statute, that covers "any form of transfer of a controlled substance," whether or not the transfer was for money.   In fact the term "sell" as defined by the statute means, means not only to sell but also to "exchange, give or dispose of to another."  NY Penal Law § 220.00(1).    Merely giving or disposing of marijuana is not the equivalent of a federal drug felony.  Steele v. Blackman, 236 F.3d 130 (3rd Cir. 2001).  Likewise, since under the statute NYPL §221.40 could have been for any form of transfer of as little of two grams of marihuana, the minimum conduct of which Respondent may have been convicted is of "a different type more akin to simple possession than to provisions intended to cover traffickers."  Martinez, citing Outen, 286 F.3d at 637.  As the categorical approach requires, this court must "look no further than to the fact that [Respondent's] conviction could have been for precisely the sort of nonremunerative transfer of small quantities of marihuana that is only a federal misdemeanor under 21 U.S.C. § 841(b)(4). 

            Further, in Martinez, the Second Circuit displaces any notion that the burden is on the Respondent to show that his conviction under NYPL §221.40 is not an aggravated felony by stating that Respondent is not required to prove, "how little marijuana he had or the nature of the transfer, so long as his conviction could have been based on a nonremunerative transfer of a small amount of marihuana."

            Moreover, it is well established that in applying for Cancellation of Removal the applicant must show eligibility and as such cannot be an aggravated felon. Regarding any potential argument that because a Respondent is convicted under NYPL § 221.40 he has not met this burden in showing he is eligible for Cancellation of Removal, the Second Circuit stated:

            "The Government makes one additional and rather startling argument.  It contends that under 8 U.S.C. § 1228(c)(4), [Respondent] bears the burden of proving that he is eligible for Cancellation relief, he has to show not only that he has not committed an aggravated felony, but also that the particular conduct which led to his conviction in state court would not qualify as a federal felony.  This argument flies in the face of the categorical approach insofar as it requires any alien seeking cancellation of removal to prove the facts of his crime to the BIA.  Although an alien must show that he has not been convicted of an aggravated felony, he can do so merely by showing that he has not been convicted of such a crime.  And, as we have discussed supra, under the categorical approach, a showing that the minimum conduct for which he was convicted was not an aggravated felony suffices to do this."

            The Second Circuit goes on to hold that, "the BIA erred by placing the burden on [Respondent] to show that his conviction was the equivalent of a federal misdemeanor.  We further hold that his conviction for a violation of NY Penal Law § 221.40 establishes nothing more than a crime punishable [as a Federal misdemeanor]."

            Thus, under Martinez in the Second Circuit and Thomas in the Third, a conviction under NYPL § 221.40 is not an aggravated felony and he is eligible to proceed with his application for Cancellation of Removal.

Article Source: http://www.articlesbase.com/criminal-articles/is-a-ny-conviction-for-criminal-sale-of-marijuana-in-the-4th-degree-an-aggravated-felony-4996844.html

About the Author

Nicklaus Misiti is Chief Attorney and C.E.O. of Misiti Global, PLLC. Please feel free to contact Atty Nicklaus Misiti with any questions or for a free consultation regarding your immigration matter. He can be reached at 212 537 4407 or you can fill out the form on his website www.misitiglobal.com.

Tier1 case law and clarity of judge's decision

Author: Shwan

An appeal cannot be allowed simply because some findings of fact are made in favour of the appellant if those findings do not entitle him for leave to remain in accordance with Immigration Rules

Mushtaq (clarity of judge's decision) Pakistan [2011] UKUT 122 (IAC) (28 March 2011)

This case was heard on 8th March 2011 at the Upper Tribunal at Field House.

The appellant appealed against the Immigration Judges decision which was unclear. At the end of her determination, the Immigration Judge concluded ‘I allow the appeal to the extent identified above'.  It was unsure as to whether the appeal was allowed in part or whether, on proper construction of her determination, she had in fact, dismissed the appeal.  A potential issue arose as to whether the appellant could appeal against the determination.

Facts of the case

The appellant appealed against the decision of the respondent (Secretary of State for the Home Department). The appellant had applied for leave to remain in the UK under the Tier 1 General migrant category of the points-based system. The respondent refused to award the points claimed under the previous earnings category (under Appendix A of the Statement of Changes in the Immigration Rules HC 395 (as amended). The appellant had sought to claim 40 points for previous earnings for the relevant period of assessment (between £35,000 and £39,000). The respondent was also not satisfied that the appellant could be awarded 5 points in respect of UK experience. The respondent refused the application under paragraph 245C (c) of the Immigration Rules.  

In her determination, the Judge stated that it ‘was not reasonably possible to tell the income from the invoices and that she considered that the income proven was £31,848.27, which she said entitled him to 30 points under Appendix A'. The Judge then concluded her determination as above.

Permission to appeal against the decision was granted on 14th December 2010 by Senior Immigration Judge Poole on the basis that there were substantive grounds challenging the assessment of the documentary evidence and the possibility that the appellant's right to appeal against the determination which had been ‘allowed' was restricted.

Conclusion

The Upper Tribunal concluded that the Immigration Judge had not allowed the appeal at all. In order to be able to succeed, the appellant needed to demonstrate that he should be awarded the 40 points for previous earnings and 5 points in respect of UK earnings. The Tribunal held that ‘On any view, it cannot be said that he had won his appeal to some extent, however limited'. Further, it was wrong for the Immigration Judge to allow the appellants appeal simply on the basis that some of the findings were in his favour as those findings did not entitle him to further leave to remain in the UK under the Tier 1 general route. The Immigration Rules provide a certain number of points must be accumulated in order to qualify and therefore, as the appellant had not obtained the requisite points, he did not satisfy the Immigration Rules.

The Tribunal held that upon a true construction of the determination, it was apparent that the appeal was dismissed and the Immigration Judge should have stated this at the end of her determination. Also, there was no question of whether the appellant had the right to appeal upon properly construing the determination. It was held that ‘The error of the Immigration Judge in describing her decision as a decision to allow the appeal to some limited extent could not deprive the Appellant of the right he had (on a true construction of the determination) to appeal against her determination'. The previous determination was set aside and a new decision was re made allowing the appellants appeal against the respondents decision.

April 2011

For further information or for a case specific evaluation, please contact us on 0207 569 3035 or alternatively at info@ergensharif.co.uk .

 

Article Source: http://www.articlesbase.com/immigration-articles/tier1-case-law-and-clarity-of-judges-decision-4531935.html

About the Author

For further information or for a case specific evaluation, please contact us on 0207 569 3035 or alternatively at info@ergensharif.co.uk .

 

Article on Discrimination from Lawrence Law Tat Hung, 羅達雄 :

Author: Lawrence Law

From the office of Lawrence Law Tat Hung, 羅達雄 :

It is important to note that a person will have protection against discrimination under the three identical ordinances only if he/she is discriminated against on the prohibited grounds. There is no protection for discrimination on other grounds, such as age, race or religion. Ilowever, if the discriminator is the government or other public authority such person can arguably rely upon the equality provision (art 22) of the Bill of Rights, which binds the government and public authorities.

Accordingly, unlike other provisions of the ordinances which render unlawful only the prescribed acts, the provisions render unlawful all discriminatory conduct in the performance of government functions and the exercise of government powers.

Lawrence Law Tat Hung, 羅達雄 :

The equality provision provides that all persons are equal under the law and are entitled, without discrimination, to the equal protection of the law. In this respect the law prohibits all discrimination and guarantees to all persons equal and effective protection against discrimination on any ground. Since a person who is being discriminated against on the ground of sex, marital status, pregnancy, disability or family.

Further, art 1(1) of the Bill of Rights stipulates that the rights recognised in the Bill of Rights shall be enjoyed without distinction of any kind (eg race, colour, sex, language, religion, ete). Hence, the government should be encouraged to seriously consider enacting similar discrimination ordinances covering those other grounds in order to give fresh spirit to the equality provision.

One matter I would like addressed is the reason for the failure of the EOC to prescribe, pursuant to the discrimination ordinances, the forms by which a person aggrieved may question the respondent on his/her reasons for doing an unlawful act and the forms by which the respondent may reply to such questions. Such questions and reply are admissible evidence and, if it appears to the court that the respondent deliberately and without reasonable excuse failed to reply within a reasonable.

Useful Links from Lawrence Law Tat Hung, 羅達雄 

http://www.yp.com.hk/iypbusiness_e10/ch/html/all_search/searchresult_all.aspx?entry=home&txtKeyword=lawyer

http://www.yp.com.hk/iypbusiness_e10/en/html/company_search/searchresult_company.aspx?txtKeyword=lawyer

http://barlist.hkba.org/hkba/BarList/411.htm

Article by Lawrence Law Tat Hung, 羅達雄 

Article Source: http://www.articlesbase.com/regulatory-compliance-articles/article-on-discrimination-from-lawrence-law-tat-hung-4768653.html

About the Author

Law, Lawrence T.H. 羅達雄 *

Address:

11/F, 8 Wyndham St,
 
Central, H.K.
 

Tel. No.:

25250221

Fax  No.:

28452441

 

Areas of Practice:

Civil & Criminal/A1/A3/B1/B2/C1/C3/C4/C5/C6/C7/C8/ D1/D2/E2/I1/I3/I4/L1/L2/M1/P1/P2/P5/S1/S2/S3

Quals:

LLB (City U.), PCLL (HKU), LLM (China), LLM (Chinese & Comparative Law)

Call:

HK (1992)

From the office of Lawrence Law Tat Hung, 羅達雄 :

The Domestic Violence Act- Are the Female “Respondent”?

Author: Neeraj Aarora

“I am the parliamentary draftsman

I compose the country's laws

And of half the litigation

I am undoubtedly the cause”

[As per Section 2 Clause (q) of DV Act, the Respondent means any adult male person who is or has been in a domestic relationship. Hence, a plain reading of this definition clause would show that an application will not lie under the provisions of this Act against a female. There is ambiguity in the definition clause if the main enacting part is read with the proviso which uses, the expression “relative of the husband” thereby extending the meaning of respondent without any gender restriction. The High Courts have different views, while MP High Court & Madras High Court opined that female members cannot be made as respondents in the proceedings under the DV Act, the judgments of Rajasthan High Court held that a female relative is not excluded from the definition of respondent contained in Section 2(q) of the Act. Recently, the Andhra Pradesh High Court in its speaking judgment held that the 'respondent' as defined under Section 2(q) of the Act includes a female relative. However, till date there is no final word of Apex Court with respect to this vexed question of law in view of divergent view of different High Courts. The question is basically with respect to the correct interpretation and scope of proviso to Section 2 (q) DV Act in the context of the scheme underlying the other provisions of the Act as well as in tune with the object set out in the statement of objects and reasons.]

The Protection of Women from Domestic Violence Act, 2005 (DV Act, 2005) came into force on 26/10/2006. The Statement of the objects and reasons of the Act states that the Act was legislated on the basis of the recommendation of The United Nations Committee on Convention on Elimination of All Forms of Discrimination against Women (CEDAW). The Statute is a benevolent piece of legislation aimed to provide for more effective protection of rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The act inter-alia provides for various reliefs to the “aggrieved person” against the “respondent” like protection order, residence orders, and custody orders. Both the terms “aggrieved person” and “respondent” have been defined under the definition clause of the DV Act, 2005. As far as the definition of “aggrieved person” as defined under Section 2 (a) of DV Act, 2005 is concerned; there is no controversy. However, same is not true when we visit the definition of “respondent” as defined under Section 2 (q) of DV Act, 2005 which defines the same in following words:-

2(q) "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.”

The inherent ambiguity in the aforesaid definition clause, is very much apparent from the reading of the main enacting part in which it defines respondent as any adult male person in a domestic relationship with the aggrieved person, at the same time the proviso of the same definition clause says 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 (read without any gender bias) or the male partner. A controversy that arose from the aforesaid ambiguity is whether 'respondent' as defined under Section 2(q) includes a female person or not under the scheme of DV Act, 2005.

The ambiguity with respect to the correct interpretation and scope of the term “respondent” first came up in the case of Ajay Kant and Ors. v. Smt. Alka Sharma reported in 2008 (2) Crimes 235 (M.P.) in which the Hon’ble Madhya Pradesh High Court dealt with the notice issued by the Magistrate to the petitioners on an application filed under Section 12 of the Act. Learned single Judge after referring to the definition of respondent in Section 2(q) and Statement of Objects and Reasons for enacting the Act held that for obtaining any relief under the Act, an application can be initiated against only adult male person and on such application or under such proceeding, protection order can be passed; those orders will also be passed only against the adult male person and as provided under Section 31 of the Act, non compliance of a protection order or an interim protection order has been made punishable and as such it can be said that the complaint for this offence can only be filed against such adult male person/respondent who has not complied with the protection order, and it is clear that the application under Section 12 of the Act which has been filed by the respondent against petitioners No. 3 and 4 who are not adult male persons is not maintainable and accordingly quashed the proceedings against petitioners 3 and 4 therein.

The aforesaid judgment of the Ajay Kant (supra) was followed by the Hon’ble Madras High Court in the case of Uma Narayanan Vs. Priya Krishna Prasad (2008) 3 MLJ 756 (Mad) in which the Hon’ble Madras High Court held that term respondent would mean only an adult male person thus, an application under Section 12 of the DV Act, 2005 is not maintainable as against a Women.

However, the subsequent decisions of Hon’ble Rajasthan High Court differed from the view taken by the Hon’ble MP High Court and the Madras High Court.

The Hon’ble High Court of Rajasthan in Sarita vs Smt. Umrao, cited as 2008 (1) WLN 359 has categorically held that “From a plain reading of the proviso to Section 2(q) of the Act of 2005 it is a apparent that a complaint by a wife or a female living in relationship in the nature of marriage may also file a complaint against a relative of the husband. The term relative is quite broad and it includes all relations of the husband irrespective gender or sex.” The High Court of Rajasthan in another case Nand Kishore and Ors. Vs State of Rajasthan and Anr. cited as RLW2008 ( 4 ) Raj 3432 has interpreted the S. 2(q) of the Act and its proviso, if read together nowhere suggest that the relative of the husband or the male partner has to be a male. In proviso to section 2(q) of the Act the word is “relative” and not male relative. It further held that a female relative is not excluded from the definition of respondent contained in section 2(q) of the Act.

However, with due respect to the Hon’ble MP High Court and Madras High Court, the author is of the view that the judgment of the Hon’ble MP High Court is based on erroneous interpretation of Section 2(q) of the DV Act, 2005 which purportedly rules out the Woman as “Respondent” under the scheme of DV Act, 2005. The Director of Southern Institute for Social Science Research, Dr. SS.Jagnayak in his report has described the ambiguity in Section 2 (q) as “Loopholes to Escape the Respondents from the Cult of this Law” and opined in the following words:-

“As per Section 2 Clause (q) the Respondent means any adult male person who is or has been in a domestic relationship. Hence, a plain reading of the Act would show that an application will not lie under the provisions of this Act against a female. But, when Section 19 (1) proviso is perused, it can be seen that the petition is maintainable, even against a lady. Often this has taken as a contention, when ladies are arrayed as Respondents and it is contented that petition against female Respondents are not maintainable. This is a loophole which should be plugged.”

The loophole with respect to the inherent ambiguity in Section 2 (q) which Dr. SS Jagnayak suggests to be plugged can be done with correct interpretation of main enactment of Section 2 (q) if read together with proviso to Section 2 (q) DV Act in the context of the scheme underlying the other provisions of the Act as well as in tune with the object set out in the statement of objects and reasons. Now, let’s see the interpretation and scope of Section 2 (q) DV Act in accordance with the accepted principles of interpretation of statutes.

If we look at the definition of “Respondent” as defined under Section 2 (q) of DV Act, 2005, the definition can be segregated into two parts:

(a) Main enacting part which deals with aggrieved person in domestic relationship;

It carves out a situation in which the respondent can only be a male person in domestic relationship with an aggrieved person against whom the aggrieved person has sought any relief. Thus, the generality of main enactment relates to “aggrieved person”.

(b) Proviso; (providing for an exception to main enacting part) when the aggrieved person is wife or female living in a relationship in the nature of a marriage.

It carves out an exception to the generality of the main enactment, which in clear terms says that in case an “aggrieved person” is a wife or female living in a relationship in the nature of a marriage, she may also file a complaint against a relative of the husband or the male partner.

If we look into the definition of the term “Aggrieved Person” as defined under Section 2 (a) DV Act, 2005 which mean 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. The definition of “aggrieved person” in domestic relationship is wide enough to cover sister, mother, daughter and sister-in-law including the wife or any female living in the nature of marriage. Thus, every relation in the nature of marriage necessarily will be “domestic relationship” but the same is not true the vice versa.

Thus, the proviso to Section 2 (q) carves out a special situation for an aggrieved person who is wife; the respondent may be a female relative of the husband or male partner. In other cases where the aggrieved person is any woman in domestic relationship say sister, mother etc. except wife or female in a relationship in the nature of marriage, the complainant shall be necessarily be a woman and the respondent also shall necessarily be a male as provided in the main enacting part of Section 2 (q).

It is the accepted rule of interpretation with respect to “Proviso” as an internal aid to interpretation as enunciated in the Judgment of Hon’ble Apex Court in J.K. Industries Ltd. and Ors. Vs. Chief Inspector of Factories and Boilers and Ors. 1996 VII AD (SC) 125 that proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for the proviso would be part of the main provision. As a general rule, in construing an enactment containing a proviso, it is proper to construe the provisions together without making either of them redundant or otiose. Even where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justifying its necessity. It is not a proper rule of interpretation of a proviso that the enacting part or the main part of the section be construed first without the proviso and if the same is found to be ambiguous only then recourse may be had to examine the proviso. On the other hand, an accepted rule of interpretation is that a section and the proviso thereto must be construed as a whole; each portion throwing light, if need be, on the rest. A proviso is normally used to remove special cases from the general enactment and provide for them specially.

Therefore, applying the ratio stated in J.K. Industries Ltd.,(supra) the proviso of Section 2(q) should be read together with the main enacting part to give meaning to the proviso with a view to justifying its necessity and both should be read together without making either of them redundant or otiose.

The proviso to Section 2 (q) deals with complaint against two categories of persons i.e., (1) a relative of the husband or (2) the male partner. By construing the main enactment part of Section 2 (q) without taking into consideration the proviso, the meaning of “Respondent” is restricted only to the male persons, which makes the expression “a relative of the husband” redundant as used in proviso to Section 2 (q) which is not contemplated under the scheme of DV Act, if read with Section 19 and Section 21 of the DV Act. The wordings of Section 19 of the DV Act makes it clear that the section provides for disposal of applications made under Sub-section (1) of Section 12 by the Magistrate. Under Sub-section (1) of Section 19, the Magistrate can pass any order against a female person other than the orders under Clause (b). Whereas proviso to Sub-section (1) of Section 19 puts a bar on the power of the Magistrate for passing an order against any person who is a woman under Section 19(1)(b).

In other words, except residence order under Section 19(1) (b), it is competent for the Magistrate to pass orders against the relatives of the husband including a female person under Section 19(1)(c) i.e., restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides. For example, if the aggrieved person along with her husband resides in a house owned by joint family including the presents of the respondent, his brothers and sisters, if any, whether or not the respondent has no legal or equitable interest or title in the shared household, he can be restrained from dispossessing the aggrieved person.

Further under Sub-section (8) of Section 19, if an aggrieved person was provided with residential house towards her Stridhan, which is in occupation of the relatives of the husband, the Magistrate can direct the respondent including the female relative of the husband for return of the possession of Stridhan property or valuable security, namely, gold jewellery etc., which was in possession of the female member of the husband.

Further, Section 21 of the Act deals with grant of temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specifies necessary arrangements for visit of such child or children by the respondent. For instance, if the children are under the custody of mother-in-law of an aggrieved person, if we give a restricted meaning to Section 2(q), no such order can be passed for giving temporary custody of the child against a female relative of the husband i.e., father, mother who are residing jointly.

It is it is a well settled principle of law that for the interpretation of statute, attempt must be made to give effect to all the provisions and the all the provisions should be read together. No provision should be considered as surplus age or redundant which is clear from the pronouncement of the Hon’ble Apex Court in Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. (AIR 2003 SC 511) . Thus, it is well settled that the Legislature does not use any word unnecessarily. Every word, expression used in a statute has a meaning, a reason and it cannot be devoid from its reason. If we construe a statute without the reason underlying it, it would be like “body without a soul”. The statute should be construed with reference to its reason as observed, in paragraph 9 of the judgment of the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. (supra)

“...A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it.”

The provisions of DV Act i.e. the definition clauses, provisions of DV Act, if read together with the Statement of objects and reasons under Bill No. 116 of 2005 for passing the DV Act makes it clear that the complainant shall be necessarily be a woman and the respondent also shall necessarily be a male except in cases where the complainant is a wife, the respondent may be a female relative of the husband or male partner. The Bill under Clause 4(i) of the Statement of Objects and Reasons seeks to cover those women who are or have been in a relationship with the abuser where both parties have lived together in a shred household and are related by consanguinity marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. The Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner; it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner. It would be pertinent to mention here that the judgment of the MP High Court in Ajay Kant discussed supra though discussed the Statement of Objects and Reasons of DV Act, 2005 has refrained from discussing the aforesaid Clause 4(i) of the Statement of Objects and Reasons which could have thrown some light on intention of the legislature and would have guided the judicial wisdom to interpret the provision of Statute in accordance with the legislative intent.

With due respect to the Hon’ble MP High Court, it is the view of this author that in the said judgment though resort to the Statement of object and reasons was made to but its aid was not taken to understand the true legislative intent. More so, it could not have been done, as the said judgment omitted the vital Clause 4(i) of the Statement of Objects and Reasons.

It is fairly well settled from a series of various judicial pronouncement that reference to the “Statement of Objects and Reasons” is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil, which the statute was sought to remedy. Justice G.P. Singh in his scholarly book “Principles of Statutory Interpretation” 8th Edn., 2001 has observed:

“Reference to the Statement of Objects and Reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy.” Further, there are various judicial pronouncements in which the Hon’ble Apex Court used the external aid i.e. “Statement of Objects and Reasons” to find out the true legislative intent. See Central Bank of India v. Workmen: [1960]1SCR200 , B. Banerjee v. Smt. Anita Pan: [1975]2SCR774, Chern Taong Shang v. S. D. Baijal, AIR1988SC603

The aforesaid view of the author finds support in the recent speaking judgment of the Hon’ble Andhra Pradesh High Court in Afzalunnisa Begum & Ors Vs. The State of A.P. & ors Criminal Petition No. 7160 and 8495 of 2008 pronounced on 02/06/2009 in which the Hon’ble High Court after making detailed analysis of Section 2 (q) read with various provisions of DV Act, 2005 particularly Section 19, 21 together with Statement of Objects and Reasons under Bill No. 116 of 2005 for passing the DV Act has in clear term laid down that “the 'respondent' as defined under Section 2(q) of the Act includes a female relative of the husband”. The judicial pronouncement of the Hon’ble Andhra High Court makes sense as it has applied the sound principles of interpretation of statutes as discussed by the author in arriving at the aforesaid ratio. The ascertainment of legislative intent is basic rule of statutory construction. A rule of construction should be preferred which advances the purpose and object of legislation. Though a construction according to plain language, which ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustice and or absurdities. Having ascertained the intention, the Hon’ble Andhra High Court strived to so interpret the statute as to promote or advance the object and purpose of enactment. The judgment makes sense out of ambiguous & unhappily worded definition of “Respondent” where the purpose of statute is apparent to the judicial eye from the Clause 4 (i) Statement of Objects and Reasons under Bill No. 116 of 2005 for passing the Act.

However, there is no final word from the Hon’ble Apex Court with respect to the correct interpretation and scope of the definition of Section 2 (k) defining the term “Respondent”, and it would be interesting to view the stand of the Hon’ble Apex Court when this vexed question of law comes before it.

Article Source: http://www.articlesbase.com/law-articles/the-domestic-violence-act-are-the-female-respondent-1430851.html

About the Author

Syndicate content