Swati Deshpande, TNN, Sep 14, 2010, 06.36am IST
MUMBAI: A city businessman facing a police probe after his wife of 12 years accused him of being impotent and venting his "frustrations'' by beating her will not be compelled to undergo a potency test.
Offering the Peddar Road resident this respite, a public prosecutor when asked by the Bombay high court if such test was necessary n Monday said that the police would not insist on the test but would continue investigations in the wife's complaint under section 498-A of the Indian Penal Code ( IPC).
A bench headed by Justice Ajay Khanwilkar recorded the prosecutor's statement. The wife is seeking to annul the marriage before the family court in Bandra where she made a similar demand of having her husband tested for impotency. The HC said that since criminal and civil cases are separate proceedings the family court can deal with the civil plea independently.
The wife, a businessman's daughter, said her marriage was never consummated. Married in 1998, she only recently lodged an FIR against her husband.
Last month when the police wanted to test the husband at the civic-run Nair hospital for impotency, he rushed to the high court to challenge the powers of the police. His lawyer Edith Dey said the scope of police investigation could not include carrying out such medical tests.
Last week, the HC had suggested a mutual consent divorce. On Monday, with the mutual consent terms failing after the couple disagreed over the issue of stree-dhan, the high court asked the public prosecutor whether medical tests for impotency test must be carried out for the police investigation. The judges also asked the prosecutor to read out the wife's statement to the police to show whether wilful cruelty was linked to the alleged impotency of the husband. The prosecutor could not point to a link and said that the police had in the past not conducted such tests.
The wife's lawyer, advocate Flavia Agnes, in the family court was relying on supreme court rulings to say that the family court has the power to compel a husband to undergo an impotency test and in case of refusal, adverse inference can be drawn against him. She is also relying on a ruling which permitted annulment after several years marriage.
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Associated news
MUMBAI: In a matrimonial dispute, the police today told the Bombay High Court that they will not insist on potency test on the husband.
Accepting the statement on record, a bench of Justice Ajay Khanvilkar and Justice U D Salvi disposed of a petition seeking a direction to the state and police not to insist on potency test.
The couple, Ajay and Jamuna (names changed) married on March 24, 1988, and after 11 years Jamuna filed a police complaint alleging cruelty on the ground that her husband was impotent.
Ajay was arrested on January 5 this year and granted bail by Additional Chief Metropolitan Magistrate a week thereafter subject to certain conditions.
However, in July, the state applied for modification of bail condition to change the day of attendance from Sunday to Tuesday for conducting potency test of the accused.
The Magistrate modified the order to the extent of changing the day of attendance from Sunday to Tuesday but did not change other conditions. In the earlier order, there was no mention of the court allowing potency test of the accused.
Despite this the police took Ajay to a hospital for conducting potency and psychiatry tests. Later, he moved the High Court saying the action of police violated human rights and his right to dignity. He said non-consummation of marriage does not amount to cruelty as per the scope and purview of section 498 A IPC under which his wife had filed a complaint.
http://www.indianexpress.com/news/family-lawyers-oppose-fresh-ground-for-divor/639689/
A section of family court lawyers from Pune have written to the Law Commission and Union Law Minister Veerappa Moily protesting against the recent inclusion of “irretrievable breakdown of marriage” as fresh ground for divorce in the Hindu Marriage Act, 1955 and Special Marriage Act, 1954.
“The rule will deprive women of their rights to matrimonial home and property. It will also rob them of their negotiating powers during matrimonial litigation,” the letter said. The decision was taken at a meeting of family court lawyers practising in various courts in the state. The meet was organised by Majlis, a Mumbai-based centre for rights discourse and interdisciplinary arts initiatives.
The letter has been signed by advocate Flavia Agnes, one of the founders of Majlis along with lawyers from Pune. Women in western countries where a similar law has been implemented are facing hardships despite contributing special non-monetary-returns by working as housewives and raising children, it said.
“There should not be a blanket rule for granting divorce under such grounds. The Law Commission is creating grey areas for corrupt practices,” said advocate Asim Sarode, a human rights activist. Majlis has planned month-long discussions on the subject in various cities in the state in July.
On the other hand, some like advocate Rekha Koratkar, president, Pune Family Court Bar Association had a different take. “It is not that a new ground for divorce has been created. The addition of the clause will speed up the divorce process in cases where there is no way out,” she said. Advocate Asunta Pardhe, who is also an activist, agreed. “ It will help several women whose divorce petitions are pending,” she said. The Union Cabinet had approved the Marriage Laws (Amendment) Bill, 2010, two weeks ago.
“Why don't they struggle for their rights,” asks Flavia Agnes. The fiery women's rights lawyer was here on Wednesday for a panel discussion on “Women and Violence/ Safety.”
“Men need to stop taking away the gains of the women's movement,” she said. “Women are fighting for their rights because men and women are not equal. If you make laws assuming they are equal, the law will hardly serve its purpose.”
India's legal system dominated the discussion - panellists agreed that despite their rigid formality, the courts were the only place where victims of rape, dowry harassment or any other assault could demand justice.
But for them to get justice, other things would have to change. Stop expecting women to be this or that, said historian Urvashi Butalia. “People seem shocked that women harass women. But we can be as nasty, rude and aggressive as a man. Why should we be expected to behave any differently?”
The law will respond to violence against women when society responds to it rather than merely trying to cure it. “We spend too much time thinking about how to make men better husbands,” Ms. Agnes said. “But the question is why are women committing suicide when they have the option of obtaining a divorce?”
When the law offers them a way of exiting their marriage, why do women continue to struggle or suffer? “Is suicide the only choice she can afford to make? We need to ask ourselves that.”
NALSAR professor Dr. Amita Dhanda also spoke.
http://www.thehindu.com/news/cities/Hyderabad/article304563.ece
