tag:blogger.com,1999:blog-4909407875632981048.post7045640456805940065..comments2023-06-14T05:45:47.264-07:00Comments on Perspectives on Law: Retrospective Operation of PWDV ActPreeti Sukthankerhttp://www.blogger.com/profile/00284949750643996301noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-4909407875632981048.post-83585223890081764222010-09-14T11:29:12.234-07:002010-09-14T11:29:12.234-07:00hi
women and child department, hyderabad recently...hi<br /><br />women and child department, hyderabad recently launched a website on protection of women from domestic violence act that site is http://www.pwdvhyd.ap.nic.in and providing more information about act and other related, it is very useful to victim of domestic violence….J.Vijaya Bhaskarnoreply@blogger.comtag:blogger.com,1999:blog-4909407875632981048.post-75547190732388046742010-07-28T12:02:19.396-07:002010-07-28T12:02:19.396-07:00TOT TOTALLY WRONG SEE SEC 36 WHICH CLEARS THAT TH...TOT TOTALLY WRONG SEE SEC 36 WHICH CLEARS THAT THE PROVISION OF ALL SEC WILL HAVE PROSPECTIVE OPERATIONS<br />BHANOTvd bhanothttps://www.blogger.com/profile/07206438448172905255noreply@blogger.comtag:blogger.com,1999:blog-4909407875632981048.post-83925671917811004942010-03-06T10:34:58.109-08:002010-03-06T10:34:58.109-08:00ya, then I guess you are right, i was only looking...ya, then I guess you are right, i was only looking it from the prespective of s. 31<br /><br />-Best <br />HomiAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-4909407875632981048.post-10687879337610680212010-03-04T06:31:11.316-08:002010-03-04T06:31:11.316-08:00Dear Sir,
Thank you for your comment.
I would l...Dear Sir,<br /><br />Thank you for your comment. <br /><br />I would like to clarify that, my post discusses the retrospective operation of the Act in general i.e. it addresses the question whether a woman can seek relief under the Act even if the acts of domestic violence have been committed prior to the enforcement of the Act. It is not discussing the retrospective operation of section 31. Moreover, the question of Section 31 being applicable retrospectively doesn’t even arise as it provides for penal consequences in case a protection order of the magistrate is breached. Naturally, a protection order can be passed by the magistrate only under the PWDV Act from the time the Act came into force and not prior to that. Hence, there is no way that Section 31 can be applicable retrospectively and there is no dispute about that. <br /><br />The dispute however, is whether the relief under the Act (i.e protection orders, residence orders etc.) can be available to a woman who has been subjected to domestic violence prior to the enforcement of the Act? <br /><br />Now, since the Statute does not clearly give an answer to this question, it becomes important to look at the nature of the Statue and the object of the statute to determine the intention of the legislature. Regard must also be given to the words of the statute which may by implication offer a solution to this question. <br /><br />As suggested in my post, the PWDV Act is a remedial statute because it attempts to cure an existing evil. The fact that it provides for penal consequences in case of a breach of the magistrate’s order does not alter the characteristic of the statute. On the contrary, many times, a remedial statute has penal provisions in order to prevent its infringement. In such cases, a different rule of construction is adopted for the remedial provisions and the penal provisions (i.e. the remedial statute has to be liberally construed, but the penal provisions should receive strict construction.)<br /><br />Coming to the case you cited ‘R v. Mary White Chapel,’ it is my submission, that, this case cannot be compared to the question under the DV Act. In that case, the Court was interpreting Section 2 of the Poor Removal Act which stated, “no woman residing in any parish with her husband at the time of his death shall be removed from such parish, for 12 months next after his death, if she so long continues a widow.” The Court held that the Act was prospective because the words “shall be removed” indicated that legislature intended to cover cases of future removals but; nevertheless it held them to be wide enough to cover cases where the husband died prior to the Act. It was under these circumstances that, the court held that, merely because a part of the requisites of the Act are drawn from time antecedent to its passing, the Act cannot be called retrospective. Nothing in the PWDV Act suggests that the relief was to be available only to future acts of domestic violence. On the contrary, the words of the Statute suggest that the Act was intended to apply to acts of domestic violence committed prior to the enforcement of the Act. (Kindly see my next post on this argument.)<br /><br />I hope this comment clarifies the scope of the topic I am discussingPreeti Sukthankerhttps://www.blogger.com/profile/00284949750643996301noreply@blogger.comtag:blogger.com,1999:blog-4909407875632981048.post-23275548723761718252010-03-03T11:28:29.629-08:002010-03-03T11:28:29.629-08:00Interesting Point!!! Here is what I think.
If, a...Interesting Point!!! Here is what I think.<br /><br />If, as you say, the only penal provision under the statute is s. 31 which relates to breach of protection orders of the Court, then the question of the whether the statute is retrospective or not doesn’t even arise. Whether or not the acts of domestic Violence took place before or after the coming into force of the statute won’t really matter because in its direct operation the statute continues to be prospective. Merely because it relates to certain acts or events which are past, doesn’t mean it is retrospective. <br /><br />Let me illustrate using the English Case of <em><a href="http://www.uniset.ca/other/css/116ER811.html" rel="nofollow">R v. Inhabitants of St Mary, Whitechapel</a>,</em> (1848) There the statute in question provided that no women residing in a house with her husband at the time of his death could be removed from that house for 12 months after the death of her husband. Now the question arose whether the statute could apply to a widow whose husband had died before the statute came into force. In this context the court noted that the statute was in its direct operation prospective, as it related to future removals only. And that it couldn’t be termed as retrospective because ‘a part of the requisites for its action was drawn from time antecedent to its passing’. And even though the statute was prospective it was held protecting a widow whose husband had died before the Act came into force. <br /><br />Since I don’t think the statue has to be retrospective, to apply to breaches of protection orders under s. 31, the question of whether it is remedial or not loses much its significance. In any case the Act doesn’t really seem remedial to me. The nature of the Act would have to judged from the perspective of the person on whom it is being applied, which in the case of s. 31 would be the husband. Something which creates on a person penal consequence can hardly be remedial.<br /><br />Best<br />-HomiHormasji Maneckjihttp://theprocedureestablishedbylaw.wordpress.com/noreply@blogger.com