This judgment from Supreme Court in October 2016 changed PWDVA (Protection of Women from Domestic Violence Act), 2005 in a fundamental way.
Until this SC judgment, the DV Act allowed for complaint to be filed only against an adult male of the household, and whether other females could also be included as respondents along with adult male(s) was interpreted differently in different judgments, because the basic definition of word respondent included only adult males under Section 2(q) of the act.
Basically the DV Act was created on behest of feminist lobby by roping in the beta males and virtue signalling crowd and easily shamed aspiring middle classes as useful idiots; and it was practically made only for wives to file complaints on their husbands and ask for various reliefs like maintenance, compensation, child custody, residence order, protection order etc. In theory a sister can file complaint against brother or a daughter against father, but a check on statistics will reveal probably less than 1 in 1000 complaints will be of those kind. Any reasonable person should think that if a law is made for protection of women, why is it that 999 out of 1000 times, it’s only wives who are using that law and not other women in a household? Either no domestic violence happens on other women in household, or domestic violence is a unique kind of phenomenon which (only) men indulge in only against wives and not against any other women in family. Or more logically, DV Act is a one way route towards getting legally enforceable rights by wives, and the sheeple should believe that only women who are genuinely facing DV will use it and no one else! Actually the sheeple do believe in that, and that’s how the law got passed, and it will probably stay that way for many years given the gynocentric scenario of the times.
SC has removed the requirement of the respondent being an adult male, so after this judgment a DV complaint can be file against a female of household, a non-adult male of household, and by extension against a non-adult female of household too.
What this means is that cases under DV Act can be filed and reliefs claimed by any woman (wife, mother, sister, daughter, daughter-in-law) against any other male or female residing in the shared household. That respondent male or female can be adult or non-adult, whereas earlier in the original DV Act the requirement was that respondent needs to be both an adult and a male.
Possible disadvantage of judgment for husband and his female relatives in same household
Until this SC judgment, the DV Act allowed for complaint to be filed only against an adult male of the household, and whether other females like his sister/mother could also be included as respondents along with adult male(s) was interpreted differently in different judgments, because the basic definition of word respondent included only adult males under Section 2(q) of the act. It was understood that including female relatives’ names was a civil version of IPC 498A tradition of including maximum number of husband’s relatives in complaint with a view towards negotiating quick and fact settlement for divorce. With that requirement being removed, it would be possible for a wife to file complaint against mother and sister(s) of husband without even having husband’s name as a respondent, and ask for the same reliefs as are being claimed from husbands till now. However, practically speaking this is not a major disadvantage since husband’s name is always kept as the first respondent, since the expectation under various laws on maintenance as well as mindset in society is that it is the husband who should be liable to pay maintenance and other similar reliefs to wife and not other members of household like his father, mother, sister etc. Unless there is a situation where the husband is poor and his mother is ultra-rich, I don’t see how the feminist and ‘oppressed-by-patriarchy’ crowd is going to utilize this change to their advantage.
Possible advantage of this judgment for female relatives of husband in same household
With this amendment to DV Act, cases under DV Act can be filed and reliefs claimed by any woman (wife, mother, sister, daughter, daughter-in-law) against any other male or female residing in the shared household. This opens up the possibility of utilizing DV Act by husband’s mother or sister(s) who may have to face abuse and violence at the hands of daughters-in-law and similar situations in a household. Earlier a wife could ask for protection order against husband and his female relatives too. With this amendment by SC, the female relatives of husband are made on par with the wife, because they are also allowed to file complaint with allegations of DV done on them by the wife. Apart from that, this amendment by Supreme Court will not be of direct use to husbands who are facing cases under DV Act from wives. In case mother of any husband has faced DV from daughter in law, she could file a complaint under DV Act against daughter-in-law, which can run as a separate case on its own. But the husband will still have to face the cases filed by wife, since each case runs independently in court on its own merits and based on its own evidences, arguments etc. Even if a mother files a case against daughter-in-law and gets some reliefs, the husband will still have to fight his own cases where he is made party as respondent. One should keep that perspective in mind, and not fall into the trap of “what counter-cases I can file and quickly get out of this mess” mentality. This counter-case mindset is favourite escape plan of people with little knowledge of law who then also get misled by some lawyers.
The judgment is a long one and one can focus more on those parts which deal with Article 14 (equality before law) and reasonable classification.
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Full Judgment text below:
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Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10084 of 2016
(ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015)
HIRAL P. HARSORA AND ORS. …APPELLANTS
VERSUS
KUSUM NAROTTAMDAS HARSORA
AND ORS. …RESPONDENTS
J U D G M E N T
R.F. Nariman, J.
1. Leave granted.
2. The present appeal arises out of a judgment dated
25.9.2014 of a Division Bench of the Bombay High Court. It
raises an important question as to the constitutional validity of
Section 2(q) of the Protection of Women from Domestic
Violence Act, 2005, (hereinafter referred to as “the 2005 Act”).
3. On 3.4.2007, Kusum Narottam Harsora and her mother
Pushpa Narottam Harsora filed a complaint under the 2005 Act
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against Pradeep, the brother/son, and his wife, and two
sisters/daughters, alleging various acts of violence against
them. The said complaint was withdrawn on 27.6.2007 with
liberty to file a fresh complaint.
4. Nothing happened for over three years till the same duo
of mother and daughter filed two separate complaints against
the same respondents in October, 2010. An application was
moved before the learned Metropolitan Magistrate for a
discharge of respondent Nos. 2 to 4 stating that as the
complaint was made under Section 2(a) read with Section 2(q)
of the 2005 Act, it can only be made against an adult male
person and the three respondents not being adult male persons
were, therefore, required to be discharged. The Metropolitan
Magistrate passed an order dated 5.1.2012 in which such
discharge was refused. In a writ petition filed against the said
order, on 15.2.2012, the Bombay High Court, on a literal
construction of the 2005 Act, discharged the aforesaid three
respondents from the complaint. We have been informed that
this order has since attained finality.
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5. The present proceedings arise because mother and
daughter have now filed a writ petition, being writ petition
No.300/2013, in which the constitutional validity of Section 2(q)
has been challenged. Though the writ petition was amended,
there was no prayer seeking any interference with the order
dated 15.2.2012, which, as has already been stated
hereinabove, has attained finality.
6. The Bombay High Court by the impugned judgment dated
25.9.2014 has held that Section 2(q) needs to be read down in
the following manner:-
“In view of the above discussion and in view of the
fact that the decision of the Delhi High Court in
Kusum Lata Sharma’s case has not been disturbed
by the Supreme Court, we are inclined to read down
the provisions of section 2(q) of the DV Act and to
hold that the provisions of \”respondent\” in
section 2(q) of the DV Act is not to be read in
isolation but has to be read as a part of the scheme
of the DV Act, and particularly along with the
definitions of \”aggrieved person\”, “domestic
relationship\” and \”shared household\” in clauses (a),
(f) and (s) of section 2 of the DV Act. If so read, the
complaint alleging acts of domestic violence is
maintainable not only against an adult male person
who is son or brother, who is or has been in a
domestic relationship with the aggrieved
complainant- mother or sister, but the complaint can
also be filed against a relative of the son or brother
including wife of the son / wife of the brother and
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sisters of the male respondent. In other words, in
our view, the complaint against the daughter-in-law,
daughters or sisters would be maintainable under
the provisions of the DV Act, where they are co-
respondent/s in a complaint against an adult male
person, who is or has been in a domestic
relationship with the complainant and such co-
respondent/s. It must, of course, be held that a
complaint under the DV Act would not be
maintainable against daughter-in-law, sister-in- law
or sister of the complainant, if no complaint is filed
against an adult male person of the family.”
7. The present appeal has been filed against this judgment.
Shri Harin P. Raval, learned senior advocate appearing on
behalf of the appellants, assailed the judgment, and has argued
before us that it is clear that the “respondent” as defined in
Section 2(q) of the said Act can only mean an adult male
person. He has further argued that the proviso to Section 2(q)
extends “respondent” only in the case of an aggrieved wife or
female living in a relationship in the nature of a marriage, in
which case even a female relative of the husband or male
partner may be arraigned as a respondent. He sought to assail
the judgment on the ground that the Court has not read down
the provision of Section 2(q), but has in fact read the proviso
into the main enacting part of the said definition, something that
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was impermissible in law. He has argued before us that the
2005 Act is a penal statute and should be strictly construed in
the event of any ambiguity. He further argued that in fact there
was no ambiguity because the expression “adult male person”
cannot be diluted in the manner done by the High Court in the
impugned judgment. He cited a large number of judgments on
the golden rule of literal construction, on how reading down
cannot be equated to re-reading in constitutional law, and on
how a proviso cannot be introduced into the main part of a
provision so as to distort its language. He also cited before us
judgments which stated that even though a statute may lead to
some hardship, that would not necessarily render the provision
unconstitutional nor, in the process of interpretation, can a
Court mend or bend the provision in the face of the plain
language used. He also cited judgments before us stating that
given the plain language, it is clear that it is only for the
legislature to make the changes suggested by the High Court.
8. Ms. Meenakshi Arora, learned senior counsel appearing
on behalf of the respondents, countered each of these
submissions. First and foremost, she argued that the 2005 Act
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is a piece of social beneficial legislation enacted to protect
women from domestic violence of all kinds. This being the
case, it is clear that any definition which seeks to restrict the
reach of the Act would have to be either struck down as being
violative of Article 14 of the Constitution or read down.
According to her, given the object of the statute, which is
discernible clearly from the statement of objects and reasons,
the preamble, and various provisions of the 2005 Act which she
took us through, it is clear that the expression “adult male
person” is a classification not based on any intelligible
differentia, and not having any rational relationship with the
object sought to be achieved by the Act. In fact, in her
submission, the said expression goes contrary to the object of
the Act, which is to afford the largest possible protection to
women from domestic violence by any person, male or female,
who happens to share either a domestic relationship or shared
household with the said woman. In the alternative, she argued
that the High Court judgment was right, and that if the said
expression is not struck down, it ought to be read down in the
manner suggested to make it constitutional. She also added
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that the doctrine of severability would come to her rescue, and
that if the said expression were deleted from Section 2(q), the
Act as a whole would stand and the object sought to be
achieved would only then be fulfilled. She referred to a large
number of judgments on Article 14 and the doctrine of
severability generally. She also argued that within the definition
of “shared household” in Section 2(s) of the Act, the
“respondent” may be a member of a joint family. She has
adverted to the amendment made to the Hindu Succession Act
in 2005, by which amendment females have also become
coparceners in a joint Hindu family, and she argued that
therefore the 2005 Act is not in tune with the march of statutory
law in other areas. She also countered the submission of Shri
Raval stating that the 2005 Act is in fact a piece of beneficial
legislation which is not penal in nature but which affords various
remedies which are innovative in nature and which cannot be
availed of in the ordinary civil courts. She added that Section 31
alone was a penal provision for not complying with a protection
order, and went on to state that the modern rule as to penal
provisions is different from that sought to be contended by Shri
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Raval, and that such rule requires the court to give a fair
interpretation to the provisions of these statutes, neither leaning
in favour of the accuser or the accused. She also added that
given the beneficial statute that we have to strike
down/interpret, a purposive construction alone should be given,
and as the offending expression “adult male person” is contrary
to such purpose and would lead to absurdities and anomalies, it
ought to be construed in tune with the Act as a whole, which
therefore would include females, as well, as respondents. She
also pointed out that, at present, the sweep of the Act was such
that if a mother-in-law or sister-in-law were to be an aggrieved
person, they could only be aggrieved against adult male
members and not against any opposing female member of a
joint family – for example, a daughter-in-law or a sister-in-law.
This will unnecessary stultify what was sought to be achieved
by the Act, and would make the Act a dead letter insofar as
these persons are concerned. She also argued that the Act
would become unworkable in that the reliefs that were to be
given would only be reliefs against adult male members and not
their abettors who may be females.
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9. Ms. Pinky Anand, learned Additional Solicitor General for
India, more or less adopted the arguments of the counsel who
appeared for the Union of India in the Bombay High Court. It
was her submission that in view of the judgment in Kusum
Lata Sharma v. State (Crl. M.C. No.75 of 2011 dated 2.9.2011)
of the Delhi High Court, laying down that the mother-in-law is
also entitled to file a complaint against the daughter-in-law
under the provisions of the 2005 Act, and the SLP against the
said judgment having been dismissed by the Supreme Court,
her stand was that it would be open to a mother-in-law to file a
complaint against her son as well as her daughter-in-law and
other female relatives of the son. In short, she submitted that
the impugned judgment does not require interference at our
end.
10. This appeal therefore raises a very important question in
the area of protection of the female sex generally. The Court
has first to ascertain what exactly is the object sought to be
achieved by the 2005 Act. In doing so, this Court has to see the
statement of objects and reasons, the preamble and the
provisions of the 2005 Act as a whole. In so doing, this Court is
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only following the law already laid down in the following
judgments.
11. In Shashikant Laxman Kale v. Union of India, (1990) 2
SCR 441, this Court was faced with the constitutional validity of
an exemption section contained in the Indian Income Tax Act,
1961. After referring in detail to Re: Special Courts Bill, 1979
2 SCR 476 and the propositions laid down therein on Article 14
generally and a few other judgments, this Court held:-
“It is first necessary to discern the true purpose or
object of the impugned enactment because it is only
with reference to the true object of the enactment
that the existence of a rational nexus of the
differentia on which the classification is based, with
the object sought to be achieved by the enactment,
can be examined to test the validity of the
classification. In Francis Bennion’s Statutory
Interpretation, (1984 edn.), the distinction between
the legislative intention and the purpose or object of
the legislation has been succinctly summarised at p.
237 as under:
“The distinction between the purpose or object of
an enactment and the legislative intention governing
it is that the former relates to the mischief to which
the enactment is directed and its remedy, while the
latter relates to the legal meaning of the enactment.”
There is thus a clear distinction between the two.
While the purpose or object of the legislation is to
provide a remedy for the malady, the legislative
intention relates to the meaning or exposition of the
remedy as enacted. While dealing with the validity
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of a classification, the rational nexus of the
differentia on which the classification is based has
to exist with the purpose or object of the legislation,
so determined. The question next is of the manner
in which the purpose or object of the enactment has
to be determined and the material which can be
used for this exercise. For determining the purpose
or object of the legislation, it is permissible to look
into the circumstances which prevailed at the time
when the law was passed and which necessitated
the passing of that law. For the limited purpose of
appreciating the background and the antecedent
factual matrix leading to the legislation, it is
permissible to look into the Statement of Objects
and Reasons of the Bill which actuated the step to
provide a remedy for the then existing malady. In A.
Thangal Kunju Musaliar v. M. Venkitachalam
Potti [(1955) 2 SCR 1196 : AIR 1956 SC 246 :
(1956) 29 ITR 349] , the Statement of Objects and
Reasons was used for judging the reasonableness
of a classification made in an enactment to see if it
infringed or was contrary to the Constitution. In that
decision for determining the question, even affidavit
on behalf of the State of “the circumstances which
prevailed at the time when the law there under
consideration had been passed and which
necessitated the passing of that law” was relied on.
It was reiterated in State of West Bengal v. Union of
India [(1964) 1 SCR 371 : AIR 1963 SC 1241] that
the Statement of Objects and Reasons
accompanying a Bill, when introduced in
Parliament, can be used for ‘the limited purpose of
understanding the background and the antecedent
state of affairs leading up to the legislation’.
Similarly, in Pannalal Binjraj v. Union of India [1957
SCR 233 : AIR 1957 SC 397 : (1957) 31 ITR 565] a
challenge to the validity of classification was
repelled placing reliance on an affidavit filed on
behalf of the Central Board of Revenue disclosing
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the true object of enacting the impugned provision
in the Income Tax Act.”
12. To similar effect, this Court held in Harbilas Rai Bansal v.
State of Punjab, (1996) 1 SCC 1, as follows:
“The scope of Article 14 has been authoritatively
laid down by this Court in innumerable decisions
including Budhan Choudhry v. State of Bihar [(1955)
1 SCR 1045 : AIR 1955 SC 191] , Ram Krishna
Dalmia v. Justice S.R. Tendolkar [1959 SCR 279 :
AIR 1958 SC 538] , Western U.P. Electric Power
and Supply Co. Ltd. v. State of U.P. [(1969) 1 SCC
817] and Mohd. Hanif Quareshi v. State of
Bihar [1959 SCR 629 : AIR 1958 SC 731] . To be
permissible under Article 14 of the Constitution a
classification must satisfy two conditions namely (i)
that the classification must be founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from others left out
of the group and (ii) that differentia must have a
rational relation to the object sought to be achieved
by the statute in question. The classification may be
founded on different basis, but what is necessary is
that there must be a nexus between the basis of
classification and the object of the Act under
consideration.
The statement of objects and reasons of the Act is
as under:
“Statement of Objects and Reasons of the East
Punjab Urban Rent Restriction Act, 1949 (Act 3 of
1949).— Under Article 6 of the India (Provisional
Constitution) Order, 1947, any law made by the
Governor of the Punjab by virtue of Section 93 of
the Government of India Act, 1935, which was in
force immediately before 15-8-1947, is to remain in
force for two years from the date on which the
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Proclamation ceased to have effect, viz., 14-8-1947.
A Governor’s Act will, therefore, cease to have effect
on 14-8-1949. It is desired that the Punjab Urban
Rent Restriction Act, 1947 (Punjab Act No. VI of
1947), being a Governor’s Act, be re-enacted as a
permanent measure, as the need for restricting the
increase of rents of certain premises situated within
the limits of urban areas and the protection of
tenants against mala fide attempts by their landlords
to procure their eviction would be there even after
14-8-1949.
In order to achieve the above object, a new Act
incorporating the provisions of the Punjab Urban
Rent Restriction Act, 1947 with necessary
modification is being enacted.”
It is obvious from the objects and reasons quoted
above that the primary purpose for legislating the
Act was to protect the tenants against the mala fide
attempts by their landlords to procure their eviction.
Bona fide requirement of a landlord was, therefore,
provided in the Act — as originally enacted — a
ground to evict the tenant from the premises
whether residential or non-residential.
The provisions of the Act, prior to the amendment,
were uniformly applicable to the residential and
non-residential buildings. The amendment, in the
year 1956, created the impugned classification. The
objects and reasons of the Act indicate that it was
enacted with a view to restrict the increase of rents
and to safeguard against the mala fide eviction of
tenants. The Act, therefore, initially provided —
conforming to its objects and reasons — bona fide
requirement of the premises by the landlord,
whether residential or non-residential, as a ground
of eviction of the tenant. The classification created
by the amendment has no nexus with the object
sought to be achieved by the Act. To vacate a
premises for the bona fide requirement of the
landlord would not cause any hardship to the
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tenant. Statutory protection to a tenant cannot be
extended to such an extent that the landlord is
precluded from evicting the tenant for the rest of his
life even when he bona fide requires the premises
for his personal use and occupation. It is not the
tenants but the landlords who are suffering great
hardships because of the amendment. A landlord
may genuinely like to let out a shop till the time he
bona fide needs the same. Visualise a case of a
shopkeeper (owner) dying young. There may not be
a member in the family to continue the business and
the widow may not need the shop for quite some
time. She may like to let out the shop till the time
her children grow up and need the premises for
their personal use. It would be wholly arbitrary — in
a situation like this — to deny her the right to evict
the tenant. The amendment has created a situation
where a tenant can continue in possession of a
non-residential premises for life and even after the
tenant’s death his heirs may continue the tenancy.
We have no doubt in our mind that the objects,
reasons and the scheme of the Act could not have
envisaged the type of situation created by the
amendment which is patently harsh and grossly
unjust for the landlord of a non-residential
premises.” [paras 8, 9 &13]
13. In accordance with the law laid down in these judgments
it is important first to discern the object of the 2005 Act from the
statement of objects and reasons:-
STATEMENT OF OBJECTS AND REASONS
1. Domestic violence is undoubtedly a human rights
issue and serious deterrent to development. The
Vienna Accord of 1994 and the Beijing Declaration
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and the Platform for Action (1995) have
acknowledged this. The United Nations Committee
on Convention on Elimination of All Forms of
Discrimination Against Women (CEDAW) in its
General Recommendation No. XII (1989) has
recommended that State parties should act to
protect women against violence of any kind
especially that occurring within the family.
2. The phenomenon of domestic violence is widely
prevalent but has remained largely invisible in the
public domain. Presently, where a woman is
subjected to cruelty by her husband or his relatives,
it is an offence under section 498A of the Indian
Penal Code. The civil law does not however
address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping
in view the rights guaranteed under articles 14, 15
and 21 of the Constitution to provide for a remedy
under the civil law which is intended to protect the
woman from being victims of domestic violence and
to prevent the occurrence of domestic violence in
the society.
4. The Bill, inter alia, seeks to provide for the
following:-
(i) It covers those women who are or have been in a
relationship with the abuser where both parties
have lived together in a shared household and
are related by consanguinity, marriage or through
a relationship in the nature of marriage or
adoption. In addition, relationships with family
members living together as a joint family are also
included. Even those women who are sisters,
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widows, mothers, single women, or living with the
abuser are entitled to legal protection under the
proposed legislation. However, whereas the Bill
enables the wife or the female living in a
relationship in the nature of marriage to file a
complaint under the proposed enactment against
any female relative of husband or the male
partner, it does not enable any female relative of
the husband or the male partner to file a
complaint against the wife or the female partner.
(ii) It defines the expression “domestic violence” to
include actual abuse or threat or abuse that is
physical, sexual, verbal, emotional or economic.
Harassment by way of unlawful dowry demands
to the woman or her relatives would also be
covered under this definition.
(iii) It provides for the rights of women to secure
housing. It also provides household, whether or
not she has any title or rights in such home or
household. This right is secured by a residence
order, which is passed by the Magistrate.
iv) It empowers the Magistrate to pass protection
orders in favour of the aggrieved person to
prevent the respondent from aiding or committing
an act of domestic violence or any other
specified act, entering a workplace or any other
place frequented by the aggrieved person,
attempting to communicate with her, isolating any
assets used by both the parties and causing
violence to the aggrieved person, her relatives or
others who provide her assistance from the
domestic violence.
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(v) It provides for appointment of Protection Officers
and registration of non-governmental
organizations as service providers for providing
assistance to the aggrieved person with respect
to her medical examination, obtaining legal aid,
safe shelter, etc.
5. The Bill seeks to achieve the above objects. The
notes on clauses explain the various provisions
contained in the Bill.”
14. A cursory reading of the statement of objects and reasons
makes it clear that the phenomenon of domestic violence
against women is widely prevalent and needs redressal.
Whereas criminal law does offer some redressal, civil law does
not address this phenomenon in its entirety. The idea therefore
is to provide various innovative remedies in favour of women
who suffer from domestic violence, against the perpetrators of
such violence.
15. The preamble of the statute is again significant. It states:
Preamble
“An Act to provide for more effective protection of
the rights of women guaranteed under the
constitution who are victims of violence of any kind
occurring within the family and for matters
connected therewith or incidental thereto.”
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16. What is of great significance is that the 2005 Act is to
provide for effective protection of the rights of women who are
victims of violence of any kind occurring within the family. The
preamble also makes it clear that the reach of the Act is that
violence, whether physical, sexual, verbal, emotional or
economic, are all to be redressed by the statute. That the
perpetrators and abettors of such violence can, in given
situations, be women themselves, is obvious. With this object
in mind, let us now examine the provisions of the statute itself.
17. The relevant provisions of the statute are contained in the
following Sections:
“2. Definitions.—In this Act, unless the context
otherwise requires,—
(a) “aggrieved person” means any woman who is, or
has been, in a domestic relationship with the
respondent and who alleges to have been subjected
to any act of domestic violence by the respondent;
(f) “domestic relationship” means a relationship
between two persons who live or have, at any point
of time, lived together in a shared household, when
they are related by consanguinity, marriage, or
through a relationship in the nature of marriage,
adoption or are family members living together as a
joint family;
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(q) “respondent” means any adult male person who
is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved
person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file
a complaint against a relative of the husband or the
male partner.
(s) “shared household” means a household where
the person aggrieved lives or at any stage has lived
in a domestic relationship either singly or along with
the respondent and includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either
the aggrieved person or the respondent or both
jointly or singly have any right, title, interest or
equity and includes such a household which may
belong to the joint family of which the respondent is
a member, irrespective of whether the respondent
or the aggrieved person has any right, title or
interest in the shared household.
3. Definition of domestic violence.—For the
purposes of this Act, any act, omission or
commission or conduct of the respondent shall
constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety,
life, limb or well-being, whether mental or physical,
of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse;
or
(b) harasses, harms, injures or endangers the
aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful
demand for any dowry or other property or valuable
security; or
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(c) has the effect of threatening the aggrieved
person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether
physical or mental, to the aggrieved person.
Explanation I.—For the purposes of this section,—
(i) “physical abuse” means any act or conduct which
is of such a nature as to cause bodily pain, harm, or
danger to life, limb, or health or impair the health or
development of the aggrieved person and includes
assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual
nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and
insults or ridicule specially with regard to not having
a child or a male child; and
(b) repeated threats to cause physical pain to any
person in whom the aggrieved person is interested.
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial
resources to which the aggrieved person is entitled
under any law or custom whether payable under an
order of a court or otherwise or which the aggrieved
person requires out of necessity including, but not
limited to, household necessities for the aggrieved
person and her children, if any, stridhan, property,
jointly or separately owned by the aggrieved person,
payment of rental related to the shared household
and maintenance;
(b) disposal of household effects, any alienation of
assets whether movable or immovable, valuables,
shares, securities, bonds and the like or other
property in which the aggrieved person has an
interest or is entitled to use by virtue of the domestic
relationship or which may be reasonably required by
the aggrieved person or her children or her stridhan
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or any other property jointly or separately held by
the aggrieved person; and
(c) prohibition or restriction to continued access to
resources or facilities which the aggrieved person is
entitled to use or enjoy by virtue of the domestic
relationship including access to the shared
household. Explanation II.—For the purpose of
determining whether any act, omission, commission
or conduct of the respondent constitutes “domestic
violence” under this section, the overall facts and
circumstances of the case shall be taken into
consideration.
17. Right to reside in a shared household.—
(1) Notwithstanding anything contained in any other
law for the time being in force, every woman in a
domestic relationship shall have the right to reside
in the shared household, whether or not she has
any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or
excluded from the shared household or any part of it
by the respondent save in accordance with the
procedure established by law.
18. Protection orders.—The Magistrate may, after
giving the aggrieved person and the respondent an
opportunity of being heard and on being prima facie
satisfied that domestic violence has taken place or
is likely to take place, pass a protection order in
favour of the aggrieved person and prohibit the
respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of
domestic violence;
(c) entering the place of employment of the
aggrieved person or, if the person aggrieved is a
child, its school or any other place frequented by the
aggrieved person;
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(d) attempting to communicate in any form,
whatsoever, with the aggrieved person, including
personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or
bank accounts used or held or enjoyed by both the
parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including
her stridhan or any other property held either jointly
by the parties or separately by them without the
leave of the Magistrate;
(f) causing violence to the dependants, other
relatives or any person who give the aggrieved
person assistance from domestic violence;
(g) committing any other act as specified in the
protection order.
19. Residence orders.—
(1) While disposing of an application under
sub-section (1) of section 12, the Magistrate may,
on being satisfied that domestic violence has taken
place, pass a residence order—
(a) restraining the respondent from dispossessing or
in any other manner disturbing the possession of
the aggrieved person from the shared household,
whether or not the respondent has a legal or
equitable interest in the shared household;
(b) directing the respondent to remove himself from
the shared household;
(c) restraining the respondent or any of his relatives
from entering any portion of the shared household
in which the aggrieved person resides;
(d) restraining the respondent from alienating or
disposing of the shared household or encumbering
the same;
(e) restraining the respondent from renouncing his
rights in the shared household except with the leave
of the Magistrate; or
(f) directing the respondent to secure same level of
alternate accommodation for the aggrieved person
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as enjoyed by her in the shared household or to pay
rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be
passed against any person who is a woman.
(2) The Magistrate may impose any additional
conditions or pass any other direction which he may
deem reasonably necessary to protect or to provide
for the safety of the aggrieved person or any child of
such aggrieved person.
(3) The Magistrate may require from the respondent
to execute a bond, with or without sureties, for
preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed
to be an order under Chapter VIII of the Code of
Criminal Procedure, 1973 (2 of 1974) and shall be
dealt with accordingly.
(5) While passing an order under sub-section (1),
sub-section (2) or sub-section (3), the court may
also pass an order directing the officer-in-charge of
the nearest police station to give protection to the
aggrieved person or to assist her or the person
making an application on her behalf in the
implementation of the order.
(6) While making an order under sub-section (1),
the Magistrate may impose on the respondent
obligations relating to the discharge of rent and
other payments, having regard to the financial
needs and resources of the parties.
(7) The Magistrate may direct the officer-in-charge
of the police station in whose jurisdiction the
Magistrate has been approached to assist in the
implementation of the protection order.
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(8) The Magistrate may direct the respondent to
return to the possession of the aggrieved person
her stridhan or any other property or valuable
security to which she is entitled to.
20. Monetary reliefs.—
(1) While disposing of an application under
sub-section (1) of section 12, the Magistrate may
direct the respondent to pay monetary relief to meet
the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved
person as a result of the domestic violence and
such relief may include but is not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage
or removal of any property from the control of the
aggrieved person; and
(d) the maintenance for the aggrieved person as
well as her children, if any, including an order under
or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being
in force.
(2) The monetary relief granted under this section
shall be adequate, fair and reasonable and
consistent with the standard of living to which the
aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an
appropriate lump sum payment or monthly
payments of maintenance, as the nature and
circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the
parties to the application and to the in-charge of the
police station within the local limits of whose
jurisdiction the respondent resides.
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Page 25
(5) The respondent shall pay the monetary relief
granted to the aggrieved person within the period
specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to
make payment in terms of the order under
sub-section (1), the Magistrate may direct the
employer or a debtor of the respondent, to directly
pay to the aggrieved person or to deposit with the
court a portion of the wages or salaries or debt due
to or accrued to the credit of the respondent, which
amount may be adjusted towards the monetary
relief payable by the respondent.
26. Relief in other suits and legal proceedings.—
1. Any relief available under sections 18, 19, 20, 21
and 22 may also be sought in any legal
proceeding, before a civil court, family court or a
criminal court, affecting the aggrieved person
and the respondent whether such proceeding
was initiated before or after the commencement
of this Act.
2. Any relief referred to in sub-section (1) may be
sought for in addition to and along with any other
relief that the aggrieved person may seek in such
suit or legal proceeding before a civil or criminal
court.
3. In case any relief has been obtained by the
aggrieved person in any proceedings other than
a proceeding under this Act, she shall be bound
to inform the Magistrate of the grant of such
relief.
31. Penalty for breach of protection order by
respondent.—
(1) A breach of protection order, or of an interim
protection order, by the respondent shall be an
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Page 26
offence under this Act and shall be punishable with
imprisonment of either description for a term which
may extend to one year, or with fine which may
extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as
practicable be tried by the Magistrate who had
passed the order, the breach of which has been
alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the
Magistrates may also frame charges under section
498A of the Indian Penal Code (45 of 1860) or any
other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), as the case may
be, if the facts disclose the commission of an
offence under those provisions.”
18. It will be noticed that the definition of “domestic
relationship” contained in Section 2(f) is a very wide one. It is a
relationship between persons who live or have lived together in
a shared household and are related in any one of four ways –
blood, marriage or a relationship in the nature of marriage,
adoption, or family members of a joint family. A reading of
these definitions makes it clear that domestic relationships
involve persons belonging to both sexes and includes persons
related by blood or marriage. This necessarily brings within
such domestic relationships male as well as female in-laws,
quite apart from male and female members of a family related
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by blood. Equally, a shared household includes a household
which belongs to a joint family of which the respondent is a
member. As has been rightly pointed out by Ms. Arora, even
before the 2005 Act was brought into force on 26.10.2006, the
Hindu Succession Act,1956 was amended, by which Section 6
was amended, with effect from 9.9.2005, to make females
coparceners of a joint Hindu family and so have a right by birth
in the property of such joint family. This being the case, when a
member of a joint Hindu family will now include a female
coparcener as well, the restricted definition contained in Section
2(q) has necessarily to be given a relook, given that the
definition of ‘shared household’ in Section 2(s) of the Act would
include a household which may belong to a joint family of which
the respondent is a member. The aggrieved person can
therefore make, after 2006, her sister, for example, a
respondent, if the Hindu Succession Act amendment is to be
looked at. But such is not the case under Section 2(q) of the
2005 Act, as the main part of Section 2(q) continues to read
“adult male person”, while Section 2(s) would include such
female coparcener as a respondent, being a member of a joint
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family. This is one glaring anomaly which we have to address
in the course of our judgment.
19. When Section 3 of the Act defines domestic violence, it is
clear that such violence is gender neutral. It is also clear that
physical abuse, verbal abuse, emotional abuse and economic
abuse can all be by women against other women. Even sexual
abuse may, in a given fact circumstance, be by one woman on
another. Section 3, therefore, in tune with the general object of
the Act, seeks to outlaw domestic violence of any kind against a
woman, and is gender neutral. When one goes to the remedies
that the Act provides, things become even clearer. Section
17(2) makes it clear that the aggrieved person cannot be
evicted or excluded from a shared household or any part of it by
the “respondent” save in accordance with the procedure
established by law. If “respondent” is to be read as only an
adult male person, it is clear that women who evict or exclude
the aggrieved person are not within its coverage, and if that is
so, the object of the Act can very easily be defeated by an adult
male person not standing in the forefront, but putting forward
female persons who can therefore evict or exclude the
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aggrieved person from the shared household. This again is an
important indicator that the object of the Act will not be
sub-served by reading “adult male person” as “respondent”.
20. This becomes even clearer from certain other provisions
of the Act. Under Section 18(b), for example, when a protection
order is given to the aggrieved person, the “respondent” is
prohibited from aiding or abetting the commission of acts of
domestic violence. This again would not take within its ken
females who may be aiding or abetting the commission of
domestic violence, such as daughters-in-law and sisters-in-law,
and would again stultify the reach of such protection orders.
21. When we come to Section 19 and residence orders that
can be passed by the Magistrate, Section 19(1)(c) makes it
clear that the Magistrate may pass a residence order, on being
satisfied that domestic violence has taken place, and may
restrain the respondent or any of his relatives from entering
any portion of the shared household in which the aggrieved
person resides. This again is a pointer to the fact that a
residence order will be toothless unless the relatives, which
include female relatives of the respondent, are also bound by it.
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And we have seen from the definition of “respondent” that this
can only be the case when a wife or a common law wife is an
aggrieved person, and not if any other woman belonging to a
family is an aggrieved person. Therefore, in the case of a wife
or a common law wife complaining of domestic violence, the
husband’s relatives including mother-in-law and sister-in-law
can be arrayed as respondents and effective orders passed
against them. But in the case of a mother-in-law or sister-in-law
who is an aggrieved person, the respondent can only be an
“adult male person” and since his relatives are not within the
main part of the definition of respondent in Section 2(q),
residence orders passed by the Magistrate under Section 19(1)
(c) against female relatives of such person would be
unenforceable as they cannot be made parties to petitions
under the Act.
22. When we come to Section 20, it is clear that a Magistrate
may direct the respondent to pay monetary relief to the
aggrieved person, of various kinds, mentioned in the Section. If
the respondent is only to be an “adult male person”, and the
money payable has to be as a result of domestic violence,
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compensation due from a daughter-in-law to a mother-in-law
for domestic violence inflicted would not be available, whereas
in a converse case, the daughter-in-law, being a wife, would be
covered by the proviso to Section 2(q) and would consequently
be entitled to monetary relief against her husband and his
female relatives, which includes the mother-in-law.
23. When we come to Section 26 of the Act, the sweep of the
Act is such that all the innovative reliefs available under
Sections 18 to 22 may also be sought in any legal proceeding
before a civil court, family court or criminal court affecting the
aggrieved person and the respondent. The proceeding in the
civil court, family court or criminal court may well include female
members of a family, and reliefs sought in those legal
proceedings would not be restricted by the definition of
“respondent” in the 2005 Act. Thus, an invidious discrimination
will result, depending upon whether the aggrieved person
chooses to institute proceedings under the 2005 Act or chooses
to add to the reliefs available in either a pending proceeding or
a later proceeding in a civil court, family court or criminal court.
It is clear that there is no intelligible differentia between a
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proceeding initiated under the 2005 Act and proceeding initiated
in other fora under other Acts, in which the self-same reliefs
grantable under this Act, which are restricted to an adult male
person, are grantable by the other fora also against female
members of a family. This anomaly again makes it clear that
the definition of “respondent” in Section 2(q) is not based on
any intelligible differentia having any rational relation to the
object sought to be achieved by the 2005 Act. The restriction of
such person to being an adult male alone is obviously not a
differentia which would be in sync with the object sought to be
achieved under the 2005 Act, but would in fact be contrary to it.
24. Also, the expression “adult” would have the same effect of
stultifying orders that can be passed under the aforesaid
sections. It is not difficult to conceive of a non-adult 16 or 17
year old member of a household who can aid or abet the
commission of acts of domestic violence, or who can evict or
help in evicting or excluding from a shared household an
aggrieved person. Also, a residence order which may be
passed under Section 19(1)(c) can get stultified if a 16 or
17 year old relative enters the portion of the shared household
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in which the aggrieved person resides after a restraint
order is passed against the respondent and any of his
adult relatives. Examples can be multiplied, all of which would
only lead to the conclusion that even the expression “adult” in
the main part is Section 2(q) is restrictive of the object sought to
be achieved by the kinds of orders that can be passed under
the Act and must also be, therefore, struck down, as this word
contains the same discriminatory vice that is found with its
companion expression “male”.
25. Shri Raval has cited a couple of judgments dealing with
the provisions of the 2005 Act. For the sake of completeness,
we may refer to two of them.
26. In Sandhya Manoj Wankhade v. Manoj Bhimrao
Wankhade, (2011) 3 SCC 650, this Court, in a petition by a
married woman against her husband and his relatives,
construed the proviso to Section 2(q) of the 2005 Act. This
Court held:
“No restrictive meaning has been given to the
expression “relative”, nor has the said expression
been specifically defined in the Domestic Violence
Act, 2005, to make it specific to males only. In such
circumstances, it is clear that the legislature never
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intended to exclude female relatives of the husband
or male partner from the ambit of a complaint that
can be made under the provisions of the Domestic
Violence Act, 2005.” [Para 16]
27. In Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the
appellant entered into a live-in relationship with the respondent
knowing that he was a married person. A question arose before
this Court as to whether the appellant could be said to be in a
relationship in the nature of marriage. Negativing this
contention, this Court held:
“The appellant, admittedly, entered into a live-in
relationship with the respondent knowing that he
was a married person, with wife and two children,
hence, the generic proposition laid down by the
Privy Council in Andrahennedige Dinohamy v.
Wijetunge Liyanapatabendige Balahamy [(1928) 27
LW 678 : AIR 1927 PC 185] , that where a man and
a woman are proved to have lived together as
husband and wife, the law presumes that they are
living together in consequence of a valid marriage
will not apply and, hence, the relationship between
the appellant and the respondent was not a
relationship in the nature of a marriage, and the
status of the appellant was that of a concubine. A
concubine cannot maintain a relationship in the
nature of marriage because such a relationship will
not have exclusivity and will not be monogamous in
character. Reference may also be made to the
judgments of this Court in Badri Prasadv. Director of
Consolidation [(1978) 3 SCC 527] and Tulsa v.
Durghatiya [(2008) 4 SCC 520] .
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We may note that, in the instant case, there is no
necessity to rebut the presumption, since the
appellant was aware that the respondent was a
married person even before the commencement of
their relationship, hence the status of the appellant
is that of a concubine or a mistress, who cannot
enter into relationship in the nature of a marriage.
The long-standing relationship as a concubine,
though not a relationship in the nature of a
marriage, of course, may at times, deserves
protection because that woman might not be
financially independent, but we are afraid that the
DV Act does not take care of such relationships
which may perhaps call for an amendment of the
definition of Section 2(f) of the DV Act, which is
restrictive and exhaustive.
Parliament has to ponder over these issues, bring
in proper legislation or make a proper amendment
of the Act, so that women and the children, born out
of such kinds of relationships be protected, though
those types of relationship might not be a
relationship in the nature of a marriage.” [Paras 57,
59 & 64]
28. It may be noted that in Badshah v. Urmila Badshah
Godse & Anr., (2014) 1 SCC 188, this Court held that the
expression “wife” in Section 125 of the Criminal Procedure
Code, includes a woman who had been duped into marrying a
man who was already married. In so holding, this Court held:
“Thus, while interpreting a statute the court may not
only take into consideration the purpose for which
the statute was enacted, but also the mischief it
seeks to suppress. It is this mischief rule, first
propounded in Heydon case [(1584) 3 Co Rep 7a :
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76 ER 637] which became the historical source of
purposive interpretation. The court would also
invoke the legal maxim construction of ut res magis
valeat quam pereatin such cases i.e. where
alternative constructions are possible the court must
give effect to that which will be responsible for the
smooth working of the system for which the statute
has been enacted rather than one which will put a
road block in its way. If the choice is between two
interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation
should be avoided. We should avoid a construction
which would reduce the legislation to futility and
should accept the bolder construction based on the
view that Parliament would legislate only for the
purpose of bringing about an effective result. If this
interpretation is not accepted, it would amount to
giving a premium to the husband for defrauding the
wife. Therefore, at least for the purpose of claiming
maintenance under Section 125 Cr.P.C, such a
woman is to be treated as the legally wedded
wife.”[Para 20]
29. We will now deal with some of the cases cited before us
by both the learned senior advocates on Article 14, reading
down, and the severability principle in constitutional law.
30. Article 14 is in two parts. The expression “equality before
law” is borrowed from the Irish Constitution, which in turn is
borrowed from English law, and has been described in State of
U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14, as the negative
aspect of equality. The “equal protection of the laws” in
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Article 14 has been borrowed from the 14th Amendment to the
U.S. Constitution and has been described in the same
judgment as the positive aspect of equality namely the
protection of equal laws. Subba Rao, J. stated:
“This subject has been so frequently and recently
before this court as not to require an extensive
consideration. The doctrine of equality may be
briefly stated as follows: All persons are equal
before the law is fundamental of every civilised
constitution. Equality before law is a negative
concept; equal protection of laws is a positive one.
The former declares that every one is equal before
law, that no one can claim special privileges and
that all classes are equally subjected to the ordinary
law of the land; the latter postulates an equal
protection of all alike in the same situation and
under like circumstances. No discrimination can be
made either in the privileges conferred or in the
liabilities imposed. But these propositions conceived
in the interests of the public, if logically stretched too
far, may not achieve the high purpose behind them.
In a society of unequal basic structure, it is well nigh
impossible to make laws suitable in their application
to all the persons alike. So, a reasonable
classification is not only permitted but is necessary
if society should progress. But such a classification
cannot be arbitrary but must be based upon
differences pertinent to the subject in respect of and
the purpose for which it is made.” [at page 34]
31. In Lachhman Dass v. State of Punjab, (1963) 2 SCR
353, Subba Rao, J. warned that over emphasis on the doctrine
of classification or an anxious and sustained attempt to
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discover some basis for classification may gradually and
imperceptibly deprive Article 14 of its glorious content. That
process would inevitably end in substituting the doctrine of
classification for the doctrine of equality. This admonition seems
to have come true in the present case, as the classification of
“adult male person” clearly subverts the doctrine of equality, by
restricting the reach of a social beneficial statute meant to
protect women against all forms of domestic violence.
32. We have also been referred to D.S. Nakara v. Union of
India, (1983) 1 SCC 305. This judgment concerned itself with
pension payable to Government servants. An office
Memorandum of the Government of India dated 25.5.1979
restricted such pension payable only to persons who had retied
prior to a specific date. In holding the date discriminatory and
arbitrary and striking it down, this Court went into the doctrine of
classification, and cited from Re: Special Courts Bill, (1979) 2
SCR 476 and Maneka Gandhi v. Union of India, (1978) 2
SCR 621, and went on to hold that the burden to affirmatively
satisfy the court that the twin tests of intelligible differentia
having a rational relation to the object sought to be achieved by
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the Act would lie on the State, once it has been established that
a particular piece of legislation is on its face unequal. The
Court further went on to hold that the petitioners challenged
only that part of the scheme by which benefits were admissible
to those who retired from service after a certain date. The
challenge, it was made clear by the Court, was not to the
validity of the Scheme, which was wholly acceptable to the
petitioners, but only to that part of it which restricted the number
of persons from availing of its benefit. The Court went on to
hold:
“If it appears to be undisputable, as it does to us
that the pensioners for the purpose of pension
benefits form a class, would its upward revision
permit a homogeneous class to be divided by
arbitrarily fixing an eligibility criteria unrelated to
purpose of revision, and would such classification
be founded on some rational principle? The
classification has to be based, as is well settled, on
some rational principle and the rational principle
must have nexus to the objects sought to be
achieved. We have set out the objects underlying
the payment of pension. If the State considered it
necessary to liberalise the pension scheme, we find
no rational principle behind it for granting these
benefits only to those who retired subsequent to
that date simultaneously denying the same to those
who retired prior to that date. If the liberalisation
was considered necessary for augmenting social
security in old age to government servants then
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those who, retired earlier cannot be worst off than
those who retire later. Therefore, this division which
classified pensioners into two classes is not based
on any rational principle and if the rational principle
is the one of dividing pensioners with a view to
giving something more to persons otherwise equally
placed, it would be discriminatory. To illustrate, take
two persons, one retired just a day prior and
another a day just succeeding the specified date.
Both were in the same pay bracket, the average
emolument was the same and both had put in equal
number of years of service. How does a fortuitous
circumstance of retiring a day earlier or a day later
will permit totally unequal treatment in the matter of
pension? One retiring a day earlier will have to be
subject to ceiling of Rs 8100 p.a. and average
emolument to be worked out on 36 months’ salary
while the other will have a ceiling of Rs 12,000 p.a.
and average emolument will be computed on the
basis of last 10 months’ average. The artificial
division stares into face and is unrelated to any
principle and whatever principle, if there be any, has
absolutely no nexus to the objects sought to be
achieved by liberalising the pension scheme. In fact
this arbitrary division has not only no nexus to the
liberalised pension scheme but it is
counter-productive and runs counter to the whole
gamut of pension scheme. The equal treatment
guaranteed in Article 14 is wholly violated inasmuch
as the pension rules being statutory in character,
since the specified date, the rules accord differential
and discriminatory treatment to equals in the matter
of commutation of pension. A 48 hours’ difference in
matter of retirement would have a traumatic effect.
Division is thus both arbitrary and unprincipled.
Therefore, the classification does not stand the test
of Article 14.” [para 42]
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33. We were also referred to Rattan Arya and others v.
State of Tamil Nadu and another, (1986) 3 SCC 385, and in
particular, to the passage reading thus:-
“We may now turn to S.30(ii) which reads as
follows:
\”Nothing contained in this Act shall apply to any
residential building or part thereof occupied by
anyone tenant if the monthly rent paid by him in
respect of that building or part exceeds four
hundred rupees.\”
By one stroke, this provision denies the benefits
conferred by the Act generally on all tenants to
tenants of residential buildings fetching a rent in
excess of four hundred rupees. As a result of this
provision, while the tenant of a non-residential
building is protected, whether the rent is Rs. 50, Rs.
500 or Rs. 5000 per month, a tenant of a residential
building is protected if the rent is Rs. 50, but not if it
is Rs. 500 or Rs. 5000 per month. Does it mean that
the tenant of a residential building paying a rent of
Rs. 500 is better able to protect himself than the
tenant of a non-residential building paying a rent of
Rs. 5000 per month? Does it mean that the tenant
of a residential building who pays a rent of Rs. 500
per month is not in need of any statutory protection?
Is there any basis for the distinction between the
tenant of a residential building and the tenant of a
non-residential building and that based on the rent
paid by the respective tenants? Is there any
justification at all for picking out the class of tenants
of residential buildings paying a rent of more than
four hundred rupees per month to deny them
the |rights conferred generally on all tenants of
buildings residential or non-residential by the Act?
41
Page 42
Neither from the Preamble of the Act nor from the
provisions of the Act has it been possible for us
even to discern any basis for the classification made
by S.30(ii) of the Act.”(Para 3)
34. In Subramanian Swamy v. CBI, (2014) 8 SCC 682, a
Constitution Bench of this Court struck down Section 6A of the
Delhi Police Special Establishment Act on the ground that it
made an invidious distinction between employees of the Central
Government of the level of Joint Secretary and above as
against other Government servants. This Court, after
discussing various judgments dealing with the principle of
discrimination (when a classification does not disclose an
intelligible differentia in relation to the object sought to be
achieved by the Act) from para 38 onwards, ultimately held that
the aforesaid classification defeats the purpose of finding prima
facie truth in the allegations of graft and corruption against
public servants generally, which is the object for which the
Prevention of Corruption Act, 1988 was enacted. In paras 59
and 60 this Court held as follows:
“It seems to us that classification which is made in
Section 6-A on the basis of status in government
service is not permissible under Article 14 as it
42
Page 43
defeats the purpose of finding prima facie truth into
the allegations of graft, which amount to an offence
under the PC Act, 1988. Can there be sound
differentiation between corrupt public servants
based on their status? Surely not, because
irrespective of their status or position, corrupt public
servants are corrupters of public power. The corrupt
public servants, whether high or low, are birds of the
same feather and must be confronted with the
process of investigation and inquiry equally. Based
on the position or status in service, no distinction
can be made between public servants against
whom there are allegations amounting to an offence
under the PC Act, 1988.
Corruption is an enemy of the nation and tracking
down corrupt public servants and punishing such
persons is a necessary mandate of the PC Act,
1988. It is difficult to justify the classification which
has been made in Section 6-A because the goal of
law in the PC Act, 1988 is to meet corruption cases
with a very strong hand and all public servants are
warned through such a legislative measure that
corrupt public servants have to face very serious
consequences. In the words of Mathew, J. in Shri
Ambica Mills Ltd. [State of Gujarat v. Shri Ambica
Mills Ltd., (1974) 4 SCC 656 : 1974 SCC (L&S)
381 : (1974) 3 SCR 760] : (SCC p. 675, paras
53-54)
“53. The equal protection of the laws is a pledge
of the protection of equal laws. But laws may
classify. …
54. A reasonable classification is one which
includes all who are similarly situated and none who
are not.”
Mathew, J., while explaining the meaning of the
words, “similarly situated” stated that we must look
beyond the classification to the purpose of the law.
The purpose of a law may be either the elimination
of a public mischief or the achievement of some
43
Page 44
positive public good. The classification made in
Section 6-A neither eliminates public mischief nor
achieves some positive public good. On the other
hand, it advances public mischief and protects the
crimedoer. The provision thwarts an independent,
unhampered, unbiased, efficient and fearless
inquiry/investigation to track down the corrupt public
servants.” [paras 59 and 60]
35. In a recent judgment, reported as Union of India v. N.S.
Ratnam, (2015) 10 SCC 681, this Court while dealing with an
exemption notification under the Central Excise Act stated the
law thus:-
“We are conscious of the principle that the
difference which will warrant a reasonable
classification need not be great. However, it has to
be shown that the difference is real and substantial
and there must be some just and reasonable
relation to the object of legislation or notification.
Classification having regard to microscopic
differences is not good. To borrow the phrase from
the judgment in Roop Chand Adlakha v. DDA [1989
Supp (1) SCC 116 : 1989 SCC (L&S) 235 : (1989) 9
ATC 639] : “To overdo classification is to undo
equality.” [para 18]
36. A conspectus of these judgments also leads to the result
that the microscopic difference between male and female, adult
and non adult, regard being had to the object sought to be
achieved by the 2005 Act, is neither real or substantial nor does
44
Page 45
it have any rational relation to the object of the legislation. In
fact, as per the principle settled in the Subramanian Swamy
judgment, the words “adult male person” are contrary to the
object of affording protection to women who have suffered from
domestic violence “of any kind”. We, therefore, strike down the
words “adult male” before the word “person” in Section 2(q), as
these words discriminate between persons similarly situate, and
far from being in tune with, are contrary to the object sought to
be achieved by the 2005 Act.
Having struck down these two words from the definition of
“respondent” in Section 2(q), the next question that arises is
whether the rest of the Act can be implemented without the
aforesaid two words. This brings us to the doctrine of
severability – a doctrine well-known in constitutional law and
propounded for the first time in the celebrated R.M.D.
Chamarbaugwalla v. Union of India, 1957 SCR 930. This
judgment has been applied in many cases. It is not necessary
to refer to the plethora of case law on the application of this
judgment, except to refer to one or two judgments directly on
point.
45
Page 46
37. An early application of the aforesaid principle is contained
in Corporation of Calcutta v. Calcutta Tramways Co. Ltd.,
[1964] 5 S.C.R. 25, in which a portion of Section 437(i)(b) of the
Calcutta Municipal Act, 1951 was struck down as being a
procedural provision which was an unreasonable restriction
within the meaning of Article 19(6) of the Constitution.
Chamarbaugwalla’s case was applied, and it was ultimately
held that only the portion in parenthesis could be struck down
with the rest of the Act continuing to apply.
38. Similarly, in Motor General Traders v. State of A.P.,
(1984) 1 SCC 222, Section 32(b) of the Andhra Pradesh
Buildings (Lease, Rent & Eviction) Control Act, 1960 which
exempted all buildings constructed on and after 26.8.1957, was
struck down as being violative of Article 14 of the Constitution.
This judgment, after applying Chamarbaugwalla’s case in para
27, and D.S. Nakara’s case in para 28, stated the law thus:-
“On a careful consideration of the above question in
the light of the above principles we are of the view
that the striking down of clause (b) of Section 32 of
the Act does not in any way affect the rest of the
provisions of the Act. The said clause is not so
inextricably bound up with the rest of the Act as to
make the rest of the Act unworkable after the said
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Page 47
clause is struck down. We are also of the view that
the Legislature would have still enacted the Act in
the place of the Madras Buildings (Lease and Rent
Control) Act, 1949 and the Hyderabad House (Rent,
Eviction and Lease) Act, 1954 which were in force in
the two areas comprised in the State of Andhra
Pradesh and it could not have been its intention to
deny the beneficial effect of those laws to the
people residing in Andhra Pradesh on its formation.
After the Second World War owing to acute
shortage of urban housing accommodation, rent
control laws which were brought into force in
different parts of India as pieces of temporary
legislation gradually became almost permanent
statutes. Having regard to the history of the
legislation under review, we are of the view that the
Act has to be sustained even after striking down
clause (b) of Section 32 of the Act. The effect of
striking down the impugned provision would be that
all buildings except those falling under clause (a) of
Section 32 or exempted under Section 26 of the Act
in the areas where the Act is in force will be
governed by the Act irrespective of the date of their
construction.” [para 29]
39. In Satyawati Sharma v. Union of India, (2008) 5 SCC
287, Section 14(1)(e) of the Delhi Rent Control Act was struck
down in part, inasmuch as it made an invidious distinction
between bonafide requirement of two kinds of landlords, the
said ground being available for residential premises only and
not non residential premises. An argument was made that if the
Section was struck down only in part, nothing more would
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Page 48
survive thereafter. This was negatived by this Court in the
following words:
“In view of the above discussion, we hold that
Section 14(1)(e) of the 1958 Act is violative of the
doctrine of equality embodied in Article 14 of the
Constitution of India insofar as it discriminates
between the premises let for residential and
non-residential purposes when the same are
required bona fide by the landlord for occupation for
himself or for any member of his family dependent
on him and restricts the latter’s right to seek eviction
of the tenant from the premises let for residential
purposes only.
However, the aforesaid declaration should not be
misunderstood as total striking down of Section
14(1)(e) of the 1958 Act because it is neither the
pleaded case of the parties nor the learned counsel
argued that Section 14(1)(e) is unconstitutional in its
entirety and we feel that ends of justice will be met
by striking down the discriminatory portion of
Section 14(1)(e) so that the remaining part thereof
may read as under:
“14. (1)(e) that the premises let for residential
purposes are required bona fide by the landlord for
occupation as a residence for himself or for any
member of his family dependent on him, if he is the
owner thereof, or for any person for whose benefit
the premises are held and that the landlord or such
person has no other reasonably suitable
accommodation;
***”
While adopting this course, we have kept in view
well-recognised rule that if the offending portion of a
statute can be severed without doing violence to the
remaining part thereof, then such a course is
permissible—R.M.D. Chamarbaugwalla v. Union of
India [AIR 1957 SC 628] and Lt. Col. Sawai
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Page 49
Bhawani Singh v. State of Rajasthan[(1996) 3 SCC
105] .
As a sequel to the above, the Explanation
appearing below Section 14(1)(e) of the 1958 Act
will have to be treated as redundant.” [paras 41 –
43]
40. An application of the aforesaid severability principle would
make it clear that having struck down the expression “adult
male” in Section 2(q) of the 2005 Act, the rest of the Act is left
intact and can be enforced to achieve the object of the
legislation without the offending words. Under Section 2(q) of
the 2005 Act, while defining ‘respondent’, a proviso is provided
only to carve out an exception to a situation of “respondent” not
being an adult male. Once we strike down ‘adult male’, the
proviso has no independent existence, having been rendered
otiose.
41. Interestingly the Protection from Domestic Violence Bill,
2002 was first introduced in the Lok Sabha in 2002. This Bill
contained the definition of “aggrieved person”, “relative”, and
“respondent” as follows:
“2. Definitions.
In this Act, unless the context otherwise requires,-
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Page 50
a) “aggrieved person” means any woman who is
or has been a relative of the respondent and who
alleges to have been subjected to acts of domestic
violence by the respondent;”
xxxx
i) “relative” includes any person related by
blood, marriage or adoption and living with the
respondent;
j) “respondent’ means any person who is or has
been a relative of the aggrieved person and against
whom the aggrieved person has sought monetary
relief or has made an application for protection
order to the Magistrate or to the Protection Officer,
as the case may be; and”
42. We were given to understand that the aforesaid Bill
lapsed, after which the present Bill was introduced in the
Lok Sabha on 22.8.2005, and was then passed by both
Houses. It is interesting to note that the earlier 2002 Bill
defined “respondent” as meaning “any person who is…..”
without the addition of the words “adult male”, being in
consonance with the object sought to be achieved by the Bill,
which was pari materia with the object sought to be achieved by
the present Act. We also find that, in another Act which seeks
to protect women in another sphere, namely, the Sexual
Harassment of Women at Workplace (Prevention, Prohibition
50
Page 51
and Redressal) Act, 2013, “respondent” is defined in Section
2(m) thereof as meaning a person against whom the aggrieved
woman has made a complaint under Section 9. Here again it
will be noticed that the prefix “adult male” is conspicuous by its
absence. The 2002 Bill and the 2013 Act are in tune with the
object sought to be achieved by statutes which are meant to
protect women in various spheres of life. We have adverted to
the aforesaid legislation only to show that Parliament itself has
thought it reasonable to widen the scope of the expression
“respondent” in the Act of 2013 so as to be in tune with the
object sought to be achieved by such legislations.
43. Having struck down a portion of Section 2(q) on the
ground that it is violative of Article 14 of the Constitution of
India, we do not think it is necessary to go into the case law
cited by both sides on literal versus purposive construction,
construction of penal statutes, and the correct construction of a
proviso to a Section. None of this becomes necessary in view
of our finding above.
44. However, it still remains to deal with the impugned
judgment. We have set out the manner in which the impugned
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Page 52
judgment has purported to read down Section 2(q) of the
impugned Act. The doctrine of reading down in constitutional
adjudication is well settled and has been reiterated from time to
time in several judgments, the most recent of which is
contained in Cellular Operators Association of India v. TRAI,
(2016) 7 SCC 703. Dealing with the doctrine of reading down,
this Court held:-
“But it was said that the aforesaid Regulation
should be read down to mean that it would apply
only when the fault is that of the service provider.
We are afraid that such a course is not open to us in
law, for it is well settled that the doctrine of reading
down would apply only when general words used in
a statute or regulation can be confined in a
particular manner so as not to infringe a
constitutional right. This was best exemplified in one
of the earliest judgments dealing with the doctrine of
reading down, namely, the judgment of the Federal
Court in Hindu Women’s Rights to Property Act,
1937, In re [Hindu Women’s Rights to Property Act,
1937, In re, 1941 SCC OnLine FC 3 : AIR 1941 FC
72] . In that judgment, the word “property” in Section
3 of the Hindu Women’s Rights to Property Act was
read down so as not to include agricultural land,
which would be outside the Central Legislature’s
powers under the Government of India Act, 1935.
This is done because it is presumed that the
legislature did not intend to transgress constitutional
limitations. While so reading down the word
“property”, the Federal Court held: (SCC OnLine
FC)
52
Page 53
“… If the restriction of the general words to
purposes within the power of the legislature would
be to leave an Act with nothing or next to nothing in
it, or an Act different in kind, and not merely in
degree, from an Act in which the general words
were given the wider meaning, then it is plain that
the Act as a whole must be held invalid, because in
such circumstances it is impossible to assert with
any confidence that the legislature intended the
general words which it has used to be construed
only in the narrower sense: Owners of SS
Kalibia v.Wilson [Owners of SS Kalibia v. Wilson,
(1910) 11 CLR 689 (Aust)] , Vacuum Oil Co. Pty.
Ltd. v. Queensland [Vacuum Oil Co. Pty.
Ltd. v. Queensland, (1934) 51 CLR 677
(Aust)] , R. v. Commonwealth Court of Conciliation
and Arbitration, ex p Whybrow &
Co. [R. v. Commonwealth Court of Conciliation and
Arbitration, ex p Whybrow & Co., (1910) 11 CLR 1
(Aust)] and British Imperial Oil Co. Ltd. v.Federal
Commr. of Taxation [British Imperial Oil Co.
Ltd. v. Federal Commr. of Taxation, (1925) 35 CLR
422 (Aust)] .” (emphasis supplied)
This judgment was followed by a Constitution Bench
of this Court in DTC v.Mazdoor
Congress [DTC v. Mazdoor Congress, 1991 Supp
(1) SCC 600 : 1991 SCC (L&S) 1213] . In that case,
a question arose as to whether a particular
regulation which conferred power on an authority to
terminate the services of a permanent and
confirmed employee by issuing a notice terminating
his services, or by making payment in lieu of such
notice without assigning any reasons and without
any opportunity of hearing to the employee, could
be said to be violative of the appellants’
fundamental rights. Four of the learned Judges who
heard the case, the Chief Justice alone dissenting
on this aspect, decided that the regulation cannot
be read down, and must, therefore, be held to be
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Page 54
unconstitutional. In the lead judgment on this aspect
by Sawant, J., this Court stated: (SCC pp. 728-29,
para 255)
“255. It is thus clear that the doctrine of
reading down or of recasting the statute can be
applied in limited situations. It is essentially used,
firstly, for saving a statute from being struck down
on account of its unconstitutionality. It is an
extension of the principle that when two
interpretations are possible—one rendering it
constitutional and the other making it
unconstitutional, the former should be preferred.
The unconstitutionality may spring from either the
incompetence of the legislature to enact the statute
or from its violation of any of the provisions of the
Constitution. The second situation which summons
its aid is where the provisions of the statute are
vague and ambiguous and it is possible to gather
the intention of the legislature from the object of the
statute, the context in which the provision occurs
and the purpose for which it is made. However,
when the provision is cast in a definite and
unambiguous language and its intention is clear, it
is not permissible either to mend or bend it even if
such recasting is in accord with good reason and
conscience. In such circumstances, it is not possible
for the court to remake the statute. Its only duty is to
strike it down and leave it to the legislature if it so
desires, to amend it. What is further, if the remaking
of the statute by the courts is to lead to its distortion
that course is to be scrupulously avoided. One of
the situations further where the doctrine can never
be called into play is where the statute requires
extensive additions and deletions. Not only it is no
part of the court’s duty to undertake such exercise,
but it is beyond its jurisdiction to do so. (emphasis
supplied)” [paras 50 and 51]
54
Page 55
45. We may add that apart from not being able to mend or
bend a provision, this Court has earlier held that “reading up” a
statutory provision is equally not permissible. In B.R. Kapur v.
State of T.N., (2001) 7 SCC 231, this Court held:
“Section 8(4) opens with the words “notwithstanding
anything in sub-section (1), sub-section (2) or
sub-section (3)”, and it applies only to sitting
members of Legislatures. There is no challenge to it
on the basis that it violates Article 14. If there were,
it might be tenable to contend that legislators stand
in a class apart from non-legislators, but we need to
express no final opinion. In any case, if it were
found to be violative of Article 14, it would be struck
down in its entirety. There would be, and is no
question of so reading it that its provisions apply to
all, legislators and non-legislators, and that,
therefore, in all cases the disqualification must await
affirmation of the conviction and sentence by a final
court. That would be “reading up” the provision, not
“reading down”, and that is not known to the law.”
[para 39]
46. We, therefore, set aside the impugned judgment of the
Bombay High Court and declare that the words “adult male” in
Section 2(q) of the 2005 Act will stand deleted since these
words do not square with Article 14 of the Constitution of India.
Consequently, the proviso to Section 2(q), being rendered
otiose, also stands deleted. We may only add that the
impugned judgment has ultimately held, in paragraph 27, that
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the two complaints of 2010, in which the three female
respondents were discharged finally, were purported to be
revived, despite there being no prayer in Writ Petition
No.300/2013 for the same. When this was pointed out, Ms.
Meenakshi Arora very fairly stated that she would not be
pursuing those complaints, and would be content to have a
declaration from this Court as to the constitutional validity of
Section 2(q) of the 2005 Act. We, therefore, record the
statement of the learned counsel, in which case it becomes
clear that nothing survives in the aforesaid complaints of
October, 2010. With this additional observation, this appeal
stands disposed of.
……………………J.
(Kurian Joseph)
……………………J.
New Delhi; (R.F. Nariman)
October 6, 2016.
56
The post Allow DV complaints on females in household by removing requirement of “adult male” from definition of respondent – Supreme Court judgment appeared first on Men Rights India.
) ‘goods’ cannot be stolen further by another thief! He/She wants to have the safety under law that those ‘goods’ should be treated as his/her personal possession, and should be safe from theft from then on. If theft was not a crime, even thieves won’t feel ‘safe’.
“, “it would be better to serve daal chaawal”, OR “this is not a complete nutritious meal” etc. etc..
), state that I had filed false cases of xyz, made false allegations to police/court etc, against my most respected husband shri InnocentHarassedHusband, aged abc, and his parents shri abc and shrimati def, residing in city xyz, and have needlessly harassed, defamed, and dragged them into these false cases due to my own egoism, narcissistic nature, and reckless behaviour.
