Eleição presidencial nos Estados Unidos em 2012 / Barack Obama

Hoje na politica mundial o assunto que se destaca são as eleições a presidência dos Estados Unidos da America e seus candidatos. Em novembro agora (2012), os americanos vão às urnas decidir se mantém Barack Obama no cargo de presidente ou se colocam o republicano Mitt Romney em seu lugar. 

Hoje ao meu ver o destaque esta em Obama, gosto da mentalidade ideológica dos democratas tanto social como ambiental, porem nessa ultima gestão americana muito deixou-se a desejar e percebi um pouco de inspiração populista que levou a reforma da saúde somente nas vésperas de eleição presidencial, talvez inspirada em nosso querido Presidente Luis Inácio LULA da silva pois esse sim e' o "cara" (B. Obama). 

A falta grave foi a nação mais poderosa do mundo se omitir em pontos ambientais importantíssimos e polêmicos tais como o protocolo de Kioto. Porem mesmo não se atrevendo a adentrar em assuntos que não levam a patrocínios eleitorais os Estados Unidos não deixaram de serem a policia do mundo, isso sim concordo plenamente pois hoje o poderio militar norte americano deve sim ser utilizado para garantir o Estado Democrático de Direito do Mundo, acho que os tempos ditatoriais já estão ultrapassados e não estão tao assim na moda como a mídia vem divulgando ultimamente. 

O mundo parece que ficou um pouco mais seguro com Barack Obama no poder, mas ainda a muito o que se fazer, mas a grande duvida agora sera qual palavra de poder ira levar ao povo americano a querer mais um mandato dos democratas, pois "Yes We Can", conforme os tempos ditatoriais já virou Historia, espero me surpreender com o que ira por vir, mas não acredito sinceramente que se Obama for reeleito ira conseguir terminar o seu segundo mandato, não digo por pressão popular e politica e sim por questão de saúde.

Relator vota no STF pela liberação do aborto de feto sem cérebro

Relator de ação proposta em 2004 pela Confederação Nacional dos Trabalhadores na Saúde, o ministro Marco Aurélio Mello votou a favor da descriminalização do aborto de fetos sem cérebro em julgamento nesta quarta-feira (11) no Supremo Tribunal Federal. O ministro defendeu que é inconstitucional a interpretação segundo a qual interromper a gravidez de feto anencéfalo é crime previsto no Código Penal.
A entidade pede que o Supremo interprete o Código Penal para permitir que, em caso de anencefalia, a mulher possa escolher interromper a gravidez. Por lei, o aborto é crime em todos os casos, exceto se houver estupro ou risco de morte da mãe.
“Aborto é crime contra a vida. Tutela-se a vida em potencial. No caso do anencéfalo, não existe vida possível. O feto anencéfalo é biologicamente vivo, por ser formado por células vivas, e juridicamente morto, não gozando de proteção estatal”, afirmou o ministro.
O ministro afirmou que, com base na liberação do aborto de fetos “viáveis” em casos de estupro, não se pode deixar de “proteger a saúde mental” da mulher grávida de um feto anencéfalo.
“Parece-me lógico que o feto sem potencialidade de vida não pode ser tutelado pelo tipo penal que protege a vida”, afirmou Marco Aurélio Mello.
O ministro também afirmou que a decisão "cabe à mulher e não ao Estado". "Cumpre à mulher, em seu ritmo, no exercício do direito à privacidade, sem temor de reprimenda, voltar-se para si mesma, refletir sobre as próprias concepções e avaliar se quer ou não levar a decisão adiante. Ao Estado não é dado intrometer-se. Ao Estado compete apenas se incumbir do dever de informar e prestar apoio médico e psicológico a paciente antes de depois da decisão, seja ela qual for."
A decisão do Supremo sobre o assunto terá de ser aplicada pelas demais instâncias da Justiça em casos semelhantes. Como o texto não trata de anencefalia, há anos juízes e tribunais têm decidido caso a caso sobre a interrupção da gravidez – em muitos deles, concedendo os pedidos. Em outros, a ação perdeu o objeto em razão da demora – quando o processo chegava às mãos do juiz, o parto já havia ocorrido.
Religião x Ciência
Em seu voto, o ministro afirmou que no Brasil já foram proferidas cerca de 3 mil autorizações judiciais para a interrupção da gravidez de fetos sem cérebro. Ele citou ainda dados da Organização Mundial de Saúde (OMS), referentes ao período entre 1993 e 1998, segundo os quais o Brasil é o quarto país no mundo em incidência de anencefalia fetal, atrás de Chile, México e Paraguai. Segundo o ministro, um a cada mil nascimentos no Brasil é de feto sem cérebro.
Marco Aurélio ressaltou a necessidade de separação entre o Estado e as crenças religiosas quando se trata de direitos dos cidadãos. Para o ministro, a interrupção da gravidez de fetos anencéfalos não pode ser analisada sob o foco de orientações religiosas.
“Concepções religiosas não podem guiar as decisões estatais, devendo ficar circunscritas à esfera privada. A crença religiosa ou a ausência dela serve precipuamente para ditar a vida privada do indivíduo que a possui. Paixões religiosas de toda a ordem hão de ser colocadas à parte das decisões do estado”, afirmou o relator.
Mello citou frase do Padre Antônio Vieira, ao falar da importância dos avanços da sociedade “no campo do pensar”. “E como o tempo não tem, nem pode ter consistência alguma, e todas as coisas desde o seu princípio nasceram juntas com o tempo, por isso nem ele nem elas podem parar um momento, mas com perpétuo moto, e revolução insuperável passar, e ir passando sempre", citou o ministro.
Boa parte do voto do ministro foi dedicada à questões científicas apresentadas por especialistas ao Supremo durante audiência pública realizada em 2008. Marco Aurélio afirmou que, do ponto de vista técnico, especialistas consideram o feto sem cérebro “um natimorto neurológico”. Para ele, não é possível falar em deficiência, pois não há expectativa de vida do feto fora do útero da mãe.
Com base na mesma ideia, Mello também afastou o argumento de que o aborto do anencéfalo seria eugenia, prática usada por nazistas para evitar o nascimento de crianças com deficiências.
“O anencéfalo jamais se tornará uma pessoa. Em síntese, não se cuida de vida em potencial, mas de morte segura. Anencefalia é incompatível com a vida”, disse o ministro.
Ele lembrou ainda que o Sistema Único de Saúde (SUS) tem condições técnicas de fazer o diagnóstico “seguro” da anencefalia, possível por meio de ultrassonografia a partir da 12ª semana de gravidez.

Depoimentos

As conseqüências psiquiátricas da obrigação de levar ao fim a gravidez de feto sem cérebro foram relatadas pelo ministro. Mello leu em plenário depoimentos de mulheres que contaram sobre momentos de angústia e depressão dela e da família.
Segundo ele, o sofrimento imposto pelo Estado ao proibir a interrupção da gravidez de anencéfalo é considerado por especialistas como forma de “tortura” e pode levar a quadro psiquiátrico grave de depressão, transtorno, estresse pós-traumático e tentativa de suicídio.
“Enquanto numa gestação normal são nove meses de acompanhamento com a predominância do amor, quando com a alteração estética é suplantada pela alegre expectativa do nascimento da criança. Na gestação do feto anencéfalo, reinam sentimentos mórbidos de dor, tristeza, desespero, angústia e luto dada a certeza do óbito”, disso ministro.

No Congresso

Parlamentares das bancadas evangélicas e católicas pediram abertura de processo por crime de responsabilidade e pedem o "impeachment" do ministro de Marco Aurélio por suposta antecipação do voto no caso dos anencéfalo. Ele teria dado entrevistas a veículos de imprensa antes desta quarta, alegam os parlamentares.

Extraído de: http://g1.globo.com/brasil/noticia/2012/04/relator-vota-no-stf-pela-legalidade-do-aborto-de-feto-sem-cerebro.html

Proposta criminaliza a ação de flanelinhas e guardadores de carro

PROJETO DE LEI N.º2701 , DE 2011.

(Do Senhor FABIO TRAD)

Acrescenta artigo ao Decreto-Lei nº 2.848, de 7 de dezembro de 1940 – Código Penal.
O Congresso Nacional decreta:

Art. 1º Esta Lei tipifica a conduta de constranger, solicitar ou exigir dinheiro ou qualquer vantagem, para explorar a permissão de estacionamento de veículo alheio em via pública, a pretexto de guardar e ou vigiar o bem, ou impor serviço contra a vontade do condutor.

Art. 2º O Decreto–Lei nº 2.848, de 07 de dezembro de 1940, passa a vigorar acrescido do artigo 160-A e parágrafo único com a seguinte redação:
“Art.158-A – Constranger alguém, mediante ameaça, a permitir a guarda, vigilância ou proteção de veiculo por quem não tem autorização legal ou regulamentar para o exercício destas funções.

Pena – detenção, de 1 a 4 anos, e multa.

§1º Incorre nas mesmas penas aquele que solicitar ou exigir, para si ou para outrem, direta ou indiretamente, dinheiro ou qualquer vantagem, sem autorização legal ou regulamentar, a pretexto de explorar a permissão de estacionamento de veículo alheio ou em via pública, bem como aquele que, sem o consentimento do condutor, constrange-o a permitir serviços de limpeza ou reparos no veiculo em via pública.”

§2º As penas aplicam-se cumulativamente e em dobro, se resultar dano aos veículos em virtude do não consentimento do condutor.

Art. 3º Esta Lei entra em vigor na data de sua publicação.

JUSTIFICAÇÃO

O medo e a insegurança, aliados ao descrédito do poder público, estão presentes no cotidiano de todos os cidadãos que utilizam as vias públicas brasileiras, constituindo em um grande obstáculo ao exercício dos direitos da cidadania.

As ruas passaram a ser ocupadas por indivíduos denominados “flanelinhas” ou “guardadores de carros” que se auto-proclamam proprietários de determinada área, passando a ditar regras e normas de conduta às pessoas. A ausência do poder público, demonstrada pela pouca importância dada a esse grave problema, leva a disputas violentas pelo domínio dos locais de grande fluxo de veículos nas zonas centrais ou nas proximidades de eventos culturais, esportivos e sociais das cidades brasileiras, incrementando a violência e gerando insegurança.

A abordagem dos “flanelinhas”, com frequência, é acompanhada de ameaças explícitas ou implícitas. Muitos não se satisfazem com o valor que lhes é oferecido pelos condutores e exigem, de forma intimidadora, o pagamento de quantias escorchantes. Os valores variam de acordo com a localização e disponibilidade de vagas e é exigido dos motoristas por “serviços de vigilância, guarda ou proteção” para que possam estacionar em via pública, quando se sabe que o que se cobra não é vigilância, mas pagamento para não ter o bem danificado. Aqueles que se recusam a pagar as elevadas quantias exigidas, muitas vezes antecipadamente, têm seus veículos furtados, danificados ou sofrem agressões físicas.

O ex-Deputado Federal Antônio Carlos Biscaia apresentou projeto de lei na legislatura anterior no sentido de criminalizar esta prática anti-social, porém a sua não reeleição sepultou o projeto. A presente proposição apresenta contornos e características técnicas diversas do projeto anterior, embora seja convergente a essência da matéria.

Malgrado exista uma enorme reprovação pública em relação a esta abominável prática social cotidiana, carece o ordenamento brasileiro de tipificação penal que alcance este comportamento, transformando- o espaço público num palco explícito de criminalidade e impunidade, não olvidando o fato de que a lucratividade desta informal ocupação tende a atrair mais e mais crianças, adolescentes e jovens para as ruas.

Outra forma de coação é a imposição de prestação de serviço lavagem ou reparo de veículo em cruzamentos das vias públicas, contra a vontade do condutor, momento em que, com a negativa de permissão, o condutor tem seu veículo avariado ou sofre agressões verbais ou físicas.

Segundo a Broken Windows Theory (Teoria das Janelas Quebradas), de autoria de George L. Kelling e Catherine Coles, uma estratégia de êxito para prevenir os delitos, segundo os autores do estudo, é resolver os problemas quando eles são pequenos. Com a tipificação da conduta delituosa e reintegração das vias e logradouros ao poder público, estaremos possibilitando que a sensação de paz e tranquilidade retorne ao cotidiano dos pessoas.

Peço apoio dos nobres parlamentares para a aprovação deste projeto, possibilitando a inibição desta prática nociva que tanto aflige os cidadãos, brasileiros ou não, que transitam pelos espaços públicos de nosso país.
Sala das Sessões, em 09 de Novembro de 2011.

FABIO TRAD
Deputado Federal

Justice & Law as the basis of the State ( Artigo muito interessante)

Justice is the basis of the State[1]

Let justice be done though the heavens fall - “Fiat justitia ruat caelum”-The maxim which transcends boundaries - manifests & signifies the belief that justice must be realized notwithstanding the consequences.

Justice is a term that defies any universally acceptable definition, and is best explained than defined. Justice may mean different things to different People, for eg. A utilitarianist, libertarian & an economic egalitarianist may have different & totally irreconcilable/ inconsistent notions of Justice, and each may have justifications for the view they hold, such is the depth of the subject. But notwithstanding the confusion prevailing over the exact domain of justice, the fact that it has been kept at a high pedestal & its importance is unrivalled – a bare perusal of historical texts from across the breadth of the world would reveal that justice ought to be done even if the same is at the risk of the world perishing (Ferdinand I – Holy Roman Emporer).

Justice at the risk of over-simplification can be put as Balancing of Conflicting Interests in the Society having regard to the demands of Fairness, Liberty & Equality. John Rawls who is known for his contributions to liberal political philosophy - saw Justice as “fairness” satisfying the requirements of Liberty & Equality. Though the work of John Rawls in his “Theory of Justice” is incomparable & has have had a profound influence on the subject of Justice. It was fraught with one glaring omission that is how to reduce injustice in the world. Identification of a hypothetical "perfectly just society’ was the main theme of his work.

If we take ‘Balancing of Conflicting Interests in Society’ as Justice. The question that logically arises is – who is to balance & harmonize the conflicting forces of individual interest with societal interest?or in other words Who is to ensure that Justice is done?

In Modern societal milieu the State is entrusted with the task of such harmonization.State simply put, is an institution to ensure communities do function effectively & smoothly and is also entrusted with the task of maintaining and enforcing rules which guarantee happiness and security of its members and most importantly the administration of Justice. State to be properly called so has to satisfy the requirements of having a definite geographical territory, a sovereign existence, lawful government & a population to govern. Since the very origin of State – Justice was kept in high regard and important for the orderly functioning of the Society. Hindu Philosophical thought made its contribution in the form of inextricably linked concepts of ‘Niti’ & ‘Nyaya’ the former idea relates to establishment of just organisations/institutions established to ensure ‘Nyaya’ (Justice) was done even-handedly. As times developed the importance of doing justice got further strengthened with the development of the notion of welfare state, which enjoined upon the state not only to prevent injustice – but to promote justice through affirmative means. State had to ensure that justice was done though the heavens fall “Fiat Justia ruat caleum”, and this was achieved by this central authority named State by ensuring obedience to its diktat by the community at large. But how the institution of State came about merits some consideration.

What exactly led to the establishment of this modern notion of state – has been a bone of contention among many a thinkers. Different theories have been propounded which trace the origin of State. Proponents of the Divine theory – premised on Roman/Hindu Philosophy purport that State is established and governed by God himself or by some other superhuman power. God may rule the state directly or indirectly under some ruler i.e the King - the deputy of God on earth. This theory which is as old as the notion of state itself manifests in the great Epic ‘Mahabharata’ too, which says that prior to the advent of kingship it was a golden era, but moral degeneration of man led to large-scale injustice & hence necessitated god’s intervention directly in the administration of communities. This theory was later deliberately misconstrued by the Kings as their divine Right to Rule and as a disguise to let their oppressive rules perpetuate. This theory has been more or less confined to Academic Discussions and is largely disregarded. A more acceptable theory known as the Social Contract theory was extended by the likes of Hobbes, Locke & Rousseau – who asserted that the early men lived in a State of a barbarism, chaos & anarchy. Early Indian Legal theorists have termed it disparagingly as the Matsyanyaya – which meant “Justice in the world of Fish” where the big fish devoured the small. The likes of Many advocated the avoidance of a situation of Matsynyaya, if a big fish could devour a small fish at will, that was a glaring violation of Justice.Man found himself in the throes of constant struggle for survival, which led people of this prepolitical era to enter into a voluntary agreement to create a political association. Further impetus to this idea was given by the Man’s newfound inclination with the Right to Private Property. Being a rational animal endowed with forethought man discovered that the only way to escape from the then brutish pattern of life was to appoint some one to rule over them. Though the leading exponents of this theory differed in their conceptions of the nature of the Social Contract- the underlying premise was the same – Man needed Justice in his dealings – and State was to provide him just that.

Hence this institution called ‘State’ was created to administer Justice in the Society. Though the form & structure of this institution different greatly among people of Different civilizations & Races and was equal only in the sense that all were motivated to emancipate men of their brutish life, to introduce orderliness, to ensure that everyone got what they deserved – and most importantly to establish a rule of law – not of men.

With the sophistication of the idea of Justice – King’s whims & fancies were replaced gradually by an elaborate system of legal rules. Law was set & enforced within organised political society called State. Right since the times of Magna Carta – it was recognised that Men by the very virtue of being human possessed some inalienable rights – called the Human Rights. With the growth of democracies these rights were concretised by many countries in their constitutions to ensure better compliance. It was with time recognised that the biggest threat posed to the rights of the man, did not come from his fellow beings but the institution that was entrusted to protect them, in response to which In England the Rule of Law developed - the spirit of which is best signified in the lines “Howsoever high you may be – the law is above you” this aimed at even-handedness of law by state vis-à-vis its subjects.

Among the States, the ones who have adopted democracy as the means of governance - have been at the forefront & perhaps most successful at ensuring justice because they allow the participation of the common man in the way the State is run. These states also have an elaborate system of Fundamental Rights with an independent judiciary as the final arbiter. But all is not rosy as it is a fact commonly known that denial of justice is in a majority of cases committed due to State excesses – particularly in our country. Justice was indeed the raison d’etre of the State. But how far the same has been achieved is quite debatable. That is because we have a democracy which exists only at the surface. Lack of even minimal protection from crime, malnutrition deaths, almost no health care for the large chunk of the population, lack of education opportunities to the underprivileged children & our ruinous justice system – are all gross denials of Justice, anything but democratic and too ironic for a country which championed the sophisticated ideas of ‘Niti’ & ‘Nyaya’ in a way unparalleled throughout History.

Hence in view of the above – It is the need of the hour that the States & more importantly the people at the helm of governance – are reminded of their bounden duty to uphold justice, the silver lining being that in a democratic setup as ours, with all its fallacies, nobody is in a better position to do that than the people themselves, who are - but the masters of their own fate.

[1] Bharat Chugh – Advocate Supreme Court of India

Weapons of Judicial Terrorism ( texto de um advogado Indiano)

A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life".

Dowry is one of the biggest social evils facing our country, and no civilized society should tolerate this, and every effort should be made to eradicate this evil, people giving and demanding dowry should be punished severely, But other side of the coin, often unlooked upon should not be ignored. And this side of the coin – is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family.

In recent years the criminal law of the land have undergone radical changes to provide protection to women, more teeth have been provided to existing laws (DP Act, 498A, 406 IPC etc) and new enactments have been made (DV Act), but unfortunately the remedy is becoming worse than the ailment, which is now a well known fact as the stringent dowry laws have failed to stop the gruesome crimes for dowry/dowry deaths.

These laws which have been proved to be highly unsuccessful (as evident from the low conviction rate) and far from what the law makers desired it to be, are now being misused by some urban women for ulterior motives.

The henious nature of these laws (498-a, 406) does nothing but to help the unlawful implementation. As these laws are non compoundable & non bailable, the chances of reconciliation between the spouses after litigation are next to nil.

The biased nature of this laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused……this means as soon as the complaint is made..whichever persons are named in the complaint are accused in the eyes of law, Isn’t this verdict before trial, now lets embark upon what Section 498 A is : SIMPLY PUT Section 498a of the IPC is a criminal law in which the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty.

This law is unique to India, it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband.

Typically, the charged family members in these cases include:

1. Mostly women of all ages (unmarried, married sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)

2.Other maternal and paternal relatives and even young children in the family.

For every complaint filed by a woman, there are at least twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.

Characteristics of 498-a, Indian Penal Code.

IPC-498a is

1. Cognizable – The accused can be arrested and jailed without warrant or investigation

2. Non-Compoundable – The complaint cannot be withdrawn by the petitioner (chances of living together again are lost)

3. Non-Bailable – The accused must appear in the court to request bail

On a single complaint of the wife, the husband and his entire family can be packed off to behind the bars, with an estimated 40,000 such accusations per year and an average of 5 members of the husband’s family implicated in each of these 498-a cases, about 200,000/- people are directly affected by these cases.

Hon’ble Supreme Court and various High Courts have time & again showed concern over this growing menace by observing that “By misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon… says the Hon’ble Supreme Court. Merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta [1]

The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court In BALBIR SINGH VS. THE STATE OF PUNJAB [2] observed :

“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”

Justice J.D.Kapoor (Delhi High Court) said in his order passed on 30th May, 2003 [3]

“ I feel constrained to comment upon the misuse of the provisions(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”

“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband.

In Jasbir Kaur v/s State of Haryana[4] : the Punjab & Haryana high Court rightly observed that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.

In Kanaraj vs. State of Punjab [5] the Hon’ble Apex Court observed:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

Karnataka High Court, in the case of State Vs. Srikanth [6] observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

The Hon’ble Supreme Court, In Mohd. Hoshan vs. State of A.P. [7], observed “Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

Delhi high Court, in Savitri Devi vs. Ramesh Chand [8], categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”

Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others[9], held :

“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

The Hon’ble Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others[10]

“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.

But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”

Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:

“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.

It Is pertinent to note here that, the real sufferers of the evil of dowry, the rural indian women are not even sensitized about their rights, and fail to make use of these laws.

But Some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives.

Despite the various guidelines/recommendations of the Supreme Court of India and Justice Malimath Committee that the working of these laws should be reviewed and reformed with change in time, so that innocents are protected, and false complaints made with malafide intention are not registered, the suggested amendment to the law has been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. Feminists are now demanding even more teeth to the existing women laws, and more & more laws are being enacted for women. But the real sufferers are not sentisized enough to make use of these laws, and these laws are getting misused in the hands of some clever Indian wives.

The latest addition in a women’s legal artillery is The Protection of Women from Domestic Violence Act – This law is absolutely pro-women and anti-men, this law assumes every man as a virtual torturer” and considers only women as victims. This law is highly vague, and speaks of verbal/economical & emotional abuse, which are impossible to quantify & ascertain. Many husbands and their family members, falsely implicated in these cases have committed suicide after being jailed, unable to bear the social trauma.

Nearly 44.7% of the suicide victims were married males while only 25% were married females. This clearly shows the ratio of victims of domestic violence and gender abuse.[11]

It is high time for law makers/law enforcing agencies/judges to pay heed and review these laws in public interest to check the growing misuse of these laws to ensure impartial justice and to protect the pious and sacred institution of marriage.

[1] http://www.hindu.com/2005/07/22/stories/2005072202631500.htm

[2] 1987 (1) CRIMES - 76.

[3] ( 20 May 2003 )

[4] (1990)2 Rec Cri R 243

[5] 2000 CriLJ 2993

[6] 2002 CriLJ 3605

[7] 2002 CriLJ 4124

[8] 2003 CriLJ 2759

[9] 2003 CriLJ 3394

[10]JT 2005(6) 266

Authored by:Bharat Chugh

Wife Sues In-Laws, Says Arranged Marriage Turned to Slavery ( Texto muito interessante)

Diptiben Mistry was a 20-year-old college student in India when she married Himansu Udwadia, then 24, who was working as an accountant in the United States.

Mistry says it was an arranged marriage, common even in Indian-American families, and that she was promised a good life and the opportunity to finish her education in hotel management in India.

But after a brief honeymoon, all those dreams vanished, according to a lawsuit Mistry filed on Jan. 10 in U.S. District Court for the Western District of Oklahoma against her in-laws, Chandrakant and Nilam Udwadia.

Mistry's father-in-law allegedly told her she needed to return immediately to the United States with the family, and the couple eventually settled in the same house as her husband's parents in Elk City, Okla., in 2007.

There, she alleged that the Udwadias controlled her life -- rationing food, depriving her of medical care and forcing her into unpaid labor as a household servant.

In the federal lawsuit Mistry claimed that her in-laws kept her a "virtual prisoner" in their home and that the Udwadias took away all her personal belongings, including her passport, so that she could not leave.

Mistry, now 24, told ABCNews.com in an email that she knew "early on" that her treatment by the Udwadias was "not right."

She alleged that her in-laws took away her cell phone and monitored all calls to her family back home in India.

"They also took all of my personal belongings once we got to the U.S., and kept them from me," she wrote. "But for a long time, I told myself that I had to accept the harsh treatment because I was scared. ..."

Mistry said she became malnourished, losing 26 pounds during the alleged ordeal. The Udwadias even dictated how often she could use the toilet, monitored her every move with a webcam and on several occasions abused her physically, according to the complaint.

"By engaging in modern-day slavery, the defendants committed abhorrent acts condemned in all civilized countries," reads the lawsuit.

Mistry has asked the court for more than $75,000 to compensate her for "forced labor" and for "intense physical and psychological pain and suffering," and most of all, depriving her of her "basic human dignity" during the year she lived in Oklahoma and later in Georgia.

U.S. Justice Department statistics reveal human trafficking is growing nearly as fast as drug trafficking, with 2,525 cases under investigation, according to a report in the Detroit Free Press. More than half the victims are women and children.



"This case is significant because it raises serious allegations of forced labor and human trafficking in a context, within a family, where those claims are rarely brought forward," said Allison Lefrak, litigation director for Human Rights USA, which advocates for women who have been victims of violence or gender-based persecution. The group is handling Mistry's legal case.

Mistry first sought help from Catholic Charities and local human trafficking groups in 2008, and they contacted the Oklahoma City FBI, which investigated her criminal claims, but did not prosecute.

Today Mistry resides in another part of the United States and said she still struggles with depression and anxiety, and at times feels suicidal.

Chandrakant and Nilam Udwadia were served legal papers Jan. 17. They have 30 days to retain a lawyer and answer the complaint.

ABCNews.com repeatedly called the Udwadia family, who now live in Suanee, Ga., to ask about the allegations.

On the first try, Chandrakant Udwadia said, after some hesitation, "You'd be better off calling my lawyer," and hung up the telephone. He did provide the name of a lawyer and did not respond to four more calls. Only an answering machine picked up.

Himansu Udwadia appears to live with his parents, according to public records.

The family still owns the house in Elk City, which is currently up for sale, according to neighbors.

"There's still a sign in the yard," said Jo Grubitz, 87, who still lives on Sunset Circle, and had frequent conversations with the Udwadias. "They told me they were from Canada and had moved here because of their son."

Grubitz said she often saw the younger son, who was in high school at the time, but had never met Himansu Udwadia because "he was in college studying to be an accountant."

As for his wife, Mistry, she said, "I never saw a younger woman."

Mistry told ABCNews.com that a middleman who knew both families had arranged the marriage in India after a 30-minute meeting. Mistry's father runs a photocopy business and her mother does not work. Both parents are college educated.

"My father met Himansu once before the meeting where I met him," Mistry wrote in her email. "He thought that we would make a good match. ... "

The lawsuit alleges that barely a month into the marriage Mistry's husband left the family's Oklahoma home and moved to Georgia to work, leaving her alone with her in-laws.

"I thought my marriage would be like other Indian marriages," she wrote. "I had never heard of a husband and wife living apart. This was definitely not what I expected out of my marriage."

"I knew that we would live in our in-laws' house for some time period," she said. "But I assumed that Himansu would also be living there as well, because he was my husband."

According to the lawsuit, her father-in-law's "control" extended to Mistry and her husband's family plans. "Himansu told Mistry that they would have a baby when Chandrakant told them to," it alleges.

She would not tell ABCNews.com why she had not named him in the lawsuit.

The lawsuit alleges that the Udwadias were able to control Mistry by threatening her with divorce, which in her culture would carry "deep shame" and rejection.

"They hung the shame of divorce over her head and she was afraid she wouldn't be able to show her face in the community," said Lynsay Gott, acting executive director of Human Rights USA.

Mistry's lawyers have alleged violations of a federal human trafficking law that was enacted in 2000 and has a victim's remedy provision, as well as an Oklahoma law that passed in 2005.

They say the lawsuit meets many of the legal criteria of human trafficking: involuntary servitude, misleading statements to induce a victim to enter a situation, threats of deportation, long work hours and restricted access to food and medical care.

"She willingly entered the marriage, but she was under the impression it was going to be a normal marriage," said Gott. "But those promises were reneged quickly."

Mistry alleged that she realized during her visa interview in Mumbai that her in-laws had begun the immigration paperwork long before their son had even met her, evidence that the Udwadias "were looking for any 'bride' that could fulfill a domestic servant role in their household," according to court documents.



According to the lawsuit, Mistry was forced to rise at 5 a.m. to prepare tea and breakfast for her in-laws, then spent the day cleaning the pictures of the Hindi gods, picking flowers for prayer, doing laundry and feeding the dog, working until 11 p.m. every day, even when she was sick.

Mistry alleged both verbal and physical abuse by her father-in-law, claiming he told his son to throw a plate at her head and "let it bleed" if her "cooking was bad." Once, the lawsuit alleges, he threw a glass jar at her head.

Another time, he allegedly injured her hand by pushing Mistry against the dishwasher.

Mistry also said she believed the family had installed video surveillance in both her bedroom and bathroom. She was not allowed to drive, make friends or do anything on her own, she alleged.

She also claimed that her father-in-law refused her treatment for a painful toothache and an infected spider bite. He allegedly attempted to "heal" a rash by rubbing his hands on her stomach twice a day and inappropriately took photos of "private parts" of her body to make a medical diagnosis, according to court documents.

In one instance she alleges her father-in-law entered her bedroom and began touching her. When she screamed, Mistry alleges he told her to go outside where she stood in the cold for 15 to 20 minutes, and he threatened to send her back to India.

Her parents never knew the extent of the alleged abuse, according to Mistry.

"I was able to talk to my parents periodically, but I had to put them on the speaker phone while my in-laws listened," said Mistry. "They told me how I needed to respond to questions from my family."

After seven months, Mistry was sent to Georgia to join her husband, but the control continued, according to the complaint.

Mistry alleged she continued to be monitored at a distance by webcam, and that her husband reported back to his parents. She also alleged she was forced to work at Dairy Queen and had to turn over all her wages to the Udwadias.



In March 2008, she was sent back to India under the false pretense that she could return to school, according to the lawsuit. The divorce was published in Douglasville, Ga., on Aug. 1.

Mistry's parents were "supportive" of their daughter when they learned the truth, according to her lawyers, but she decided to return to the U.S. to confront her husband when he did not return her calls.

She had an uncle living in Clearwater, Fla., and there, Mistry sought help with her visa from Catholic Charities. Social workers there encouraged her to contact human trafficking advocates.

"It was really difficult for her," said Giselle Rodriguez of the Florida Coalition on Human Trafficking, whose group provided Mistry with a place to stay, food and clothing, counseling and schooling.

"When I first met her, she was very lost," said Rodriguez, who served as Mistry's case worker. "They had made her cut her hair off, and she was down to 90 pounds and looked extremely sad."

The Udwadias had filed for divorce from Mistry as a "missing person," according to Rodriguez. "They said they didn't know where she was, and it was hard convincing her the divorce was real."

The lawsuit alleges her father-in-law initiated the divorce.

Before Mistry went back to India, Chandrakant told his son to divorce her or he would sever his relationship with Himansu, alleges the lawsuit. "Himansu resisted his father repeatedly and stated he did not want to divorce his wife," according to court documents.

"She never really saw herself as a victim," said Rodriguez. "She was very confused and wondered what it was she did wrong."

Rodriguez said she contacted the FBI in Oklahoma and involved Det. James McBride of the Clearwater police, who also serves on the Clearwater/Tampa Bay Task Force for Human Trafficking.

"She did initially contact us in November 2008," said Clearwater police spokeswoman Elizabeth Watts. "I don't have any idea what happened with the investigation because it was out of our jurisdiction."

According to Rodriguez, the FBI attempted to file criminal charges, but the U.S. and state attorneys "passed up on the case" because "they didn't know if it would stand in court because of the Hindi customs [in marriage]."

But the FBI granted Mistry a "continued presence" as a refugee in the U.S., she said.

ABCNews.com called Oklahoma City FBI spokesman Clay Simmonds, who said he would try to find more detail in Mistry's case.

"It was disheartening to see," said Rodriguez. "She was feeling hurt and it was tough to work through. She had married a handsome man with an education and a career, but his parents treated her like a piece of crap. ... But she didn't want to give up on her marriage."

To this day, Mistry said she still finds it difficult to trust others. "I am now trying to rebuild my life, but I'm still very much upset by what happened to me," she wrote.

"I thought when I returned to the U.S. that I would be able to talk with Himansu," she wrote to ABCNews.com. "I hoped that he would be able to cut off ties with his parents. I hoped that we could start over and live a life separate from his parents."

Other family members assured her that would be possible, she said. "Ultimately, I now realize that Himansu was not willing to sever ties with his parents."



http://abcnews.go.com/Health/wife-sues-laws-alleging-arranged-marriage-turned-human/story?id=15342407&page=2#.TyAFjqWn89M

NY Times Reporter Sounds off on Legal Education, Accreditation and the ‘Crazy’ Race for Rankings

New York Times reporter David Segal, whose recent series of stories on legal education has touched off a furor in the legal community, says law schools have taken the quest for higher rankings and greater prestige to "an incredibly destructive" place.

Segal says the "madness" created by U.S. News and World Report's annual law school rankings have led many schools to employ all kinds of different "shenanigans" to make themselves more appealing to prospective students and to cover up just how bad the job market for law school graduates is.

Segal's remarks came in an interview with Bloomberg Law's Lee Pacchia that was posted on YouTube on Thursday. The conversation touched on several subjects, including the high costs of a legal education, the ABA's role as a law school accreditor and the competition for prestige that has shaped many law schools' actions.

Segal, whose normal beat at the paper is consumer finance, says he got into the business of legal education quite by accident. He met a recent law school graduate at a cocktail party who told him that while he had been lucky enough to land a job, none of his friends had.

"That just seemed like an interesting fact to me, and I just dove in from there and then just found out how just crazy the whole law school market is," he says.

Segal says the U.S. News rankings do some good, but have led almost all law schools to fudge a lot of their figures and set "really sad" priorities. He said U.S. News bears some of the blame for building such perversities into its rankings.

"But it doesn't help that law schools are just completely obedient to the set of standards and jump through any hurdle that is erected by U.S. News" to improve their ranking, he says.

Segal also says the ABA has a "terrible conflict of interest" stemming from its dual role as an accreditor of law schools and as the voice of the profession, though he doesn't mention that the Section of Legal Education and Admissions to the Bar, the ABA's accrediting arm, is completely independent of the association. He said that despite some reforms that have brought more nonlawyers into the process, the accrediting function is still essentially dominated by lawyers, whose primary interest is in enhancing the prestige and salaries of the legal profession.

"That is just a recipe for a bunch of self-interested decisions," he said.

Fonte: Mark Hansen