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 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 The said complaint was withdrawn on 27.6.2007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.
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 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 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 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 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 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.
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 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 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 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 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
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 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, 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.
(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.”
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;
(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
(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 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;
(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 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.
(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.
(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 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 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 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 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. 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, 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
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 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 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] .
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 : 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 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 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 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 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]
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
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 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.
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 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 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 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 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 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.
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 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 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 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 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
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 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, 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.
(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.”
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;
(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
(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 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;
(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 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.
(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.
(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 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 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 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 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. 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, 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
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 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 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] .
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 : 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 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 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 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 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]
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
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