OF REAL DESPERATE HOUSEWIVES & DOMESTIC VIOLENCE

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(001) OF REAL DESPERATE HOUSEWIVES & DOMESTIC VIOLENCE
Q: I am 36, with 3 kids and what used to be a loving father and husband. In the last 5 years of our 15 year marriage his business has experienced difficulties and he is close to bankruptcy. He also has a drinking problem and we began to argue almost daily especially about money. I could bear with all this but recently he began to start hitting me on an almost weekly basis. The other night he got so drunk he rode his motorbike right into our living room. Almost every other night he comes back late at 2 or 3 am in the morning. He forces himself on me and if I refuse to give in he will hit me. Two nights ago he brought petrol in a jerry can during one of our fights and threaten to burn down the family house. He was drunk at that time and when he sobers up he begs for forgiveness and promises not to hit me again. I was admitted for hospital twice for bodily injuries. I am contemplating suicide but when I think of the kids I cannot go through with it. What can I do?

TERI HATCHET



LEX BORNEO: Marriages are made in heaven with lots of love and affection but when they culminate into violence the marital home becomes hell on earth. The graphic violence no longer takes place on tv screens and on the streets outside but in the very place that is the supposed to be the sanctuary of peace and safety of the family. Slowly but surely the family is on its downward spiral as the daily fights takes its toll on the victim spouse, kids and their education.

In 1994 Parliament passed the Domestic Violence Act (DVA) to provide for legal protection in situation of domestic violence and matters incidental thereto. This article proposes to show how the DVA can be applied for protection of the persons such as the writer of this letter.

DOMESTIC VIOLENCE - DEFINITION

The first thing we need to understand is the definition of domestic violence.
What is domestic violence under the DVA 1994?
Under Section 2 of the DVA 1994 “domestic violence” means any of the following acts by a wrongdoer:
(a) wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury;
(b) causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;
(c) compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;
(d) confining or detaining the victim against the victim’s will; or
(e) causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim


WHO IS A VICTIM
Who is the victim of domestic violence under the Act?
The spouse or former spouse of the wrongdoer, a child, an incapacitated adult or any other member of the family of the wrongdoer is a victim under the DVA ( Section 2 DVA)
Suppose the wrongdoer’s spouse entered into a marriage ceremony with the wrongdoer without registration of his or her “marriage”. Is he or she covered under the Act?
Yes, under the DVA “spouse” includes a de facto spouse, that is to say, a person who has gone through a form of ceremony which is recognized as a marriage ceremony according to the religion or custom of the parties concerned, but such ceremony has not been registered or not capable of being registered under any written law relating to the solemnization and registration of marriages;




ACTION BY AND PROTECTION OF THE VICTIM
If I am a victim of domestic violence what shall I do?
First of all see a lawyer or lodge a police report against the wrongdoer and request for protection under the domestic violence act if it is not already recommended to you by the police.

How can I receive protection pending police investigation on my police report?
After a police report has been made by a victim of domestic violence and while police investigations are still pending can the victim receive protection under the DVA by what is known as an interim protection order. Under Section 4 of the DVA the court is empowered during the pendency of investigations relating to the commission of an offence involving domestic violence, issue an interim protection order prohibiting the person wrongdoer from using domestic violence against his or her spouse or former spouse or a child or an incapacitated adult or any other member of the family, as the case may be, as specified in the order.

What can the law do for me if my spouse is found guilty of domestic violence against me?
Under Section 5 of the DVA, the court may issue a protection order restraining the wrongdoer from using domestic violence or inciting other persons to commit violence against the victim or victims (now known as “protected persons”) ;

Besides restraining the wrongdoer the Court can also make the following orders under Section 6 of the DVA:-
a) the granting of the right of exclusive occupation to any victim of the shared residence or a specified part of the shared residence by excluding the wrongdoer from the shared residence or specified part ;
(b) prohibiting or restraining the wrongdoer from entering any victim’s place of residence or from entering any victim’s place of employment or school or other institution or from making personal contact with the victim;
(c) permitting the victim to enter the residence of the wrongdoer, accompanied by any enforcement officer for the purpose of collecting the victim’s personal belongings;
(d) requiring the wrongdoer to avoid making written or telephone communication with the victm;
(e) requiring the wrongdoer to permit any victim to have the continued use of a vehicle which has previously been ordinarily used by the victim;

THE PENALTIES UNDER DVA
What is the penalty for contravening the protection order?

(1) Any person who wilfully contravenes a protection order or any provision thereof shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months or to both.
(2) Any person who wilfully contravenes a protection order by using violence on a protected person shall, on conviction, be liable to a fine not exceeding four thousand ringgit or to imprisonment for a term not exceeding one year or to both.
(3) Any person who is convicted for a second or subsequent violation of a protection order under subsection (2) shall be punished with imprisonment for a period of not less than seventy-two hours and not more than two years, and shall also be liable to a fine not exceeding five thousand ringgit.


SUING FOR COMPENSATION

Besides a protection order can the victim of domestic violence get compensation from the court?
Under Section 10 where a victim of domestic violence suffers personal injuries or damage to property or financial loss as a result of
the domestic violence, the court may award such compensation in respect of the injury or damage or loss as it deems just and reasonable and it may take into account—
(a) the pain and suffering of the victim, and the nature and extent of the physical or mental injury suffered;
(b) the cost of medical treatment for such injuries;
(c) any loss of earnings arising therefrom;
(d) the amount or value of the property taken or destroyed or damaged;
(e) necessary and reasonable expenses incurred by or on behalf of the victim when the victim is compelled to separate or
be separated from the defendant due to the domestic violence, such as—
(i) lodging expenses to be contributed to a safe place or shelter;
(ii) transport and moving expenses;
(iii) the expenses required in setting up a separate household which may include amounts representing such housing loan payments or rental payments in respect of the shared residence, or alternative residence, as the case may be, for such period as the court considers just and reasonably necessary.

Who can make a police report in respect of a case for domestic violence? Does it have to be limited to the victim?

No it is not just the victim who can lodge a report. Under Section 18 of the Act any person who has reason to believe that an offence involving domestic violence is being or has been committed may give information in respect thereof to an enforcement officer.
Such person who gives any such information in good faith will not be liable for defamation or otherwise .

INTERESTING TIP: In fact a spouse who is afraid to make a police report FOR FEAR OF REPRISALS FROM SPOUSE should engage a relative or friend or woman support group to make the report.


Jayakumari v Suriya Narayanan

This is a decision made in the Kuala Lumpur High Court by James Foong J which is based on pre-DVA law but is nevertheless useful illustrate the approach of the courts in handling DVA cases.
The wife was married to the husband some 19 years ago…... There were two children to the marriage, both girls aged 16 and 14 respectively. The family resided at the matrimonial home which is a terrace house. Residing with them is the wife’s mother.
On 27 February 1996, the wife left the matrimonial home with her mother and children, and were residing temporarily in her cousin’s house. This was followed by the filing of a petition for judicial separation by her solicitors on 4 March 1996. On the same day, the wife sought the following reliefs from the High Court:

(a) that the husband be restrained by himself, or his servants, or agents from molesting, harassing, threatening, abusing, assaulting or in any way disturbing her; and
(b) that the husband be ordered to vacate the matrimonial home and not to enter therein until further order.

WHY DID SHE APPLY?
The wife claimed that the husband is a habitual gambler and an alcoholic which led him to be an irresponsible husband and father of the children. This also caused frequent quarrels culminating to a stage that she could no longer tolerate his behaviour.

HUSBAND VERBALLY ABUSES THE LAWYER AND THREATENS WIFE
On her instructions, a solicitor’s letter was issued to the husband exploring the possibility for an agreement to present a joint petition for divorce by mutual consent. In response to this letter, the wife was assaulted by the husband followed by the use of foul and abusive language on her solicitors. The wife claims that things got worse when the husband threatened to kill her, and informed the children to vacate the house for a few days as there will be a funeral taking place there. Out of fear, the wife left the house with her mother and the children.
THE HUSBAND’S DEFENCE & THE FUNERAL IN THE HOUSE
The husband denied the allegations of the petitioner and insisted that he has been a good husband and father by providing sufficiently for his family though on a fairly low salary. He claims that he did not assault the wife, but instead was assaulted by the wife’s brother who had interfered in his matrimonial dispute with the petitioner. As regards the alleged threat of murdering the petitioner, the respondent explained that it was all a mistake. What he meant was that he was going to kill himself and the funeral in the house was actually meant for himself.
The husband then proceeded to elaborate that he is a life insurance sales agent, and due to rising costs is forced to operate his business in the matrimonial home where there is the use of the telephone and computer. He needs the matrimonial home and the house telephone to conduct his business since his clients are already familiar with the house address and phone number.

THE JUDGE’S TAKE ON THE MATTER – THE OJ SIMPSON PRECEDENT

In the words of the learned judge “I am of the opinion that factors to be considered in such a claim should be, whether such an order is necessary for the protection of the wife and in considering this, the conduct of the parties must be taken into account, so are the position and interest of the parties including the children (if any). And only when the conduct of the husband is so outrageous that it is impossible for both the parties to live together, that an application to evict the husband from the matrimonial home is granted.
In our present case, the petitioner has claimed that she was being assaulted. Her life was even threatened when the husband told the children to leave the matrimonial home as there would be a funeral pending in a few days time. The husband has attempted to explain this threat as a reference to himself committing suicide, but such an explanation, in the opinion of this court is only a feeble, shoddy and frivolous attempt to hide the real truth of the threat to the wife. As the wife has been assaulted before, coupled with the admission of the husband that he drinks, it is not surprising that the wife fled from the matrimonial home with mother and children when the threat of murder was uttered. Though the husband has agreed to be restrained by injunction from molesting, assaulting and disturbing the petitioner, there is no assurance that serious harm or even death may not come to the wife if the parties are to reside together, considering that when a death threat has been uttered, it must have at least been considered by the wife. Such threats should not be taken too lightly, especially in a case such as this where the pride of the husband may be affected by the fact that he cannot match up to the expectation of the wife and that of her family’s success, such as the wife’s brother being a doctor. ………….When such an exposure of fear for life has been revealed by the wife, this court should not tread upon it too lightly, as the authority in the Los Angeles police force has learned in the recent case of the murdered wife of the famous American Football star, OJ Simpson.
The children, this court was informed by counsel, are in their critical year at school where one will be sitting for her Form 5 examination and the other the Form 3. Depriving them of the use of the matrimonial home which they are accustomed to would certainly have a critical adverse effect on their studies.

…………….in this case, the matrimonial home is a terrace house where one cannot miss the other while going from one part of the house to the other. There is not sufficient room even to contemplate and meditate given the number of occupants residing therein, especially when the husband reiterated that he treats the house as his office making approximately 600 telephone calls to his clients a month from the house phone.
Within the circumstances as described above, this court on the balance of probability is of the firm opinion that it is impossible for the wife to live together in the same house as the husband.
The husband pleaded that he is not a man of means earning approximately RM600 a month as a life insurance agent. However, he seems to have miscalculated when this income could not be sufficient to meet his own disclosed expenditure on a per month basis. He claims that he spends RM450 on tuition fees for his children alone while concurrently providing a servant for the family. Taking the servant’s wages to be a bare minimum of RM200, there would be hardly any money left for general expenses, food and travelling leaving aside the payment for telephone charges on his numerous calls. Obviously, he must be earning much more than disclosed.
The husband further claims that his business would be affected if he were evicted. This court fails to see how this could be so given the nature of the husband’s profession. As a life insurance agent, his work should be involved more with seeing clients and liaising with his insurance company, certainly not by sitting at home though it may be his office. Communication with clients and potential customers will not be affected in this modern day by the aid of an economically available mobile phone.
After careful consideration of all the relevant factors, this court hereby allows the wife’s application and accordingly orders the wife to vacate the said matrimonial home within seven days bringing with him only his personal belongings including the computer which he asserts is required for his work, provided always that this instrument belongs to him.



THE PROTECTION ORDER

We end this article by showing to you a sample of the protection order under Section 5 of the DVA that will be issued by the High Court in favour of the victims of domestic violence:-

DOMESTIC VIOLENCE ACT 1994 (Section 5)
DOMESTIC VIOLENCE REGULATIONS 1999
PROTECTION ORDER
State of Sabah Malaysia
In the High Court at Lahad Datu
Application No. 200 of year 2012
Police Report No 2000

WHEREAS TERI HATCHET JUNIOR, Identity Card No. 00000000007, aged 21, having an address at Jalan Saman Lama is present in this Court and WHEREAS the Court, having read the application, is satisfied that TERI HATCHET SENIOR & TERI HATCHET JUNIOR is in need of protection, this Court hereby issues a protection order in their favour;

IT IS ORDERED that TERI HACKER Identity Card No* 0000000006, having an address at Jalan Saman Baru
is restrained from using domestic violence against TERI HATCHET SENIOR & TERI HATCHET JUNIOR’

IT IS ALSO ORDERED that TERI HACKER shall not incite any other person to commit violence against TERI HATCHET SENIOR & TERI HATCHET JUNIOR

GIVEN under my hand and seal of the Court at Lahad Datu on the 24th day of September year 2012
.............................................
Magistrate