3) Whether section 36 is discriminatory among women

3.1 Article 14 of the Constitution ensures gender equality. Article 15 prohibits discrimination on grounds of sex. Article 16 provides for equality of opportunity in public employment. Article 15 (3) of the Constitution permits the State to make special provisions for women and children. Article 39 enjoins the State to provide an adequate means of livelihood to men and women. Article 51 A (e) makes it a duty of every citizen to renounce practices derogatory to the dignity of women. The protection of women from domestic violence act 2005 with an object to provide for more effective protection of the rights of women guaranteed under the constitution. Still some provisions of the act is analyzed to be violative of the equality concept. 3.2 The full potential of soubhagya remains underutilized. The implementation of the laudable Constitutional postulates has not been satisfactory in the light of section 36 of DV act which validates all other legislations including section 125 of crpc which categorizes women into two. The Government of India has enacted 39 Central laws which have sought to empower women on par with men during the last two centuries. Yet discriminatory provisions like sec 125 crpc takes away the petitioners right to maintenance. 3.3 The purpose of maintenance is defeated in case the application of section 125 crpc is extended to the DV act through section 36, which is violative of Art 14 & 15(3) of the constitution of India. I would also like to contend that the petitioner is entitled to get interim maintenance till the case is properly disposed of. By extending sec 125 to the DV act even that claim is negated. Section 125 of the Criminal Procedure Code contains a ceiling of maintenance of rupees five hundred which was fixed in 1955 and retained in the Act of 1973. The said Section does not contain any provision for interim maintenance although the Supreme Court has granted interim maintenance under its inherent powers. This provision is thus violating the right to life which also includes getting right to support ones life.

3.4 The Act came about in response to decade-long pressure from international organizations and activists in India. It is most humbly submitted that the so called protective legislation in my clients case turn out to be helpless. Further my client was denied justice over her claim over her share of the properties in the light of sec 36 of the Act. The 2005 law focuses on the prohibition of marital aggression, the issue of protection and maintenance orders against husbands and partners who abuse a woman emotionally, physically or economically. This sounds fine on paper, but it is averred that a one-size-fits-all approach ignores women who need such protection the most.

3.5 The 2005 Act is impractical and consequently non-implementable in favour of those that need protection the most. Looking at the size of the country and the problem, it would be better to have a law that targets the poorest and the most uneducated and illiterate among women to start with, at least until the mechanisms to implement this nuclear family-lawyer dominated law are in place, if that is what the legislature wants. Here the protection of law is denied to the petitioner on the grounds that she is employed. But when it denies women her right and protects husband from his duty, it is violative of art 15(3) of constitution which emphasizes law to be in favour of women

3.6 It is asseverated that that there is no use having a law that is meant for the whole country when it clearly violates the right of maintenance granted to women under all personal laws. Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances. At this point of time I would also like to mention that according to my understanding maintenance not only includes basic necessities like food, clothing and residence but it also includes the things necessary for comfort and status in which the person entitled is reasonably expected to live. According to me the main aim of providing maintenance is that the wife should not be left destitute on separation or divorce from her husband. In a laymens term maintenance are those things which are indispensible for the survival of human being.

3.7 The provisions of Maintenance act are intended to fulfill a social purpose. These provisions are contained in criminal procedure code, 1973 under section 125 to 128 and under the Hindu Adoption and Maintenance act, 1956.The object of all these provision is to compel a man to perform the moral obligations, which he owes to the society in respect of his wife, children and parents. But when it frees the husband from liability on the reason of the wife being employed, it classifies women into two and thus is violative of the Constitution of India. 3.8 ARTICLE 39 of the constitution also state, inter-alia that the state shall, in particular, direct its policies towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. My humble submission is that when sec 125 classifies women under this section into two, denying employed women the protection of Art 39 and 14 it is against the spirit of the constitution. Hence sec 36 is to be held unconstitutional.

PRAYER
HEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HONBLE COURT MAY BE PLEASED TO:

TO HOLD THAT SECTION 36 OF CRPC IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION . THATSECTION 36 IS ULTRAVIRES TO ARTICLE 15(3) OF THE CONSTITUTION. THAT SECTION 36 IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION.

TO SET ASIDE THE ORDER PASSED BY THE LD.JFMC KALYAN NAGAR

MISCELLANEOUS AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE INTERESTS
OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE SOWBHAGYA .