Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI WP (Crl.) No. 638 of 2010
Reserved On: May 28, 2010.
% Pronounced On: June 03, 2010. VARSHA KAPOOR . . . Petitioner through
: Mr. Arvind Jain with Mr. T.S. Chaudhary, Advocates.
VERSUS
UOI & ORS. . . .Respondent through: Mr. A.S. Chandhiok, ASG with Mr.
Pratap Singh Parmar and
Mr. Puneet Khurana, Advocates
for UOI.
Mr. Sanjeev Bhandari, Addl.
S.C. (Crl.) for the respondent
No.3/State.
Mr. Shashank Rai, Advocate for
the respondent No.4.
Mr. Ravindra S. Garia, with Ms.
Samridhi Sinha, Advocates for
the interveners.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers may be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J.
1. The petitioner herein is the mother-in-law of the respondent No.4.
The respondent No.4 has instituted proceedings in the Court of
Metropolitan Magistrate (Mahila Court South), New Delhi under Section
12 of the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as "DV Act"). In this application, the
respondent No.4 has impleaded her husband as respondent No.1 and one
Rakesh Dhawan as WP(Crl.) No.638 of 2010 Page 1 of 25 respondent No.3.
Her mother-in-law has been arrayed as the respondent No.2 (the
petitioner herein). Allegations of domestic violence perpetrated by
her husband and mother-in- law are levelled on the basis of which the
respondent No.4 has sought protection order under Section 18,
Residence Order under Section 19 and Monetary Relief under Section 20
as well as Compensation Order under Section 22 of the DV Act.
2. Notice in this Application filed by the respondent No.4 has been
issued by the Mahila Court to all the respondents and the petitioner
has also received the said notice in her capacity as respondent
No.2/mother-in-law. On receipt of this notice, she has rushed to this
Court by means of the present writ petition, as her contention is that
being a lady, she cannot be impleaded as the respondent in the said
proceedings. Her submission flows from Section 2(q) of the DV Act,
which defines "respondent". Contention is that the said definition
includes only "adult male person". It is also the case of the
petitioner that in case proviso to Section 2 (q) is interpreted
including "female" also as the respondent, then such a provision is
ultra vires the Constitution of India. We may add at this stage itself
that though the prayer clause in the writ petition contains challenge
to the vires of Section 2(q) of the DV Act as well, at the time of
hearing, no arguments were advanced thereon.
3. Section 2 (q) of the DV Act reads as under: "2(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:
WP(Crl.) No.638 of 2010 Page 2 of 25 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."
4. In nutshell, the submission is that the main provision of Section 2
(q), which defines "respondent", specifically states that it would
mean any "adult male person". However, proviso to this provision which
carves out specific category of "aggrieved person" viz. a wife or a
female living in a relationship in the nature of a marriage, it
stipulates that complaint by such aggrieved wife or female can file a
complaint against "a relative of the husband or the male partner" as
well. It is argued that the expression "a relative" would be
circumscribed by adult male person and therefore, such a relative as
mentioned in the proviso could only be an adult male person and would
not include a female relative.
5. The argument is premised on the following: (a) The preamble as well
as object and reasons of the DV Act clearly demonstrates that the DV
Act is passed to give redressal to females who suffer domestic
violence at the hands of male persons. It is, thus, gender based
violence, which is the focus of the DV Act. When purpose is to redress
this gender based violence, the respondent, by necessary implication,
can only be a male person, who subjects a woman to domestic violence.
The learned counsel highlighted in this behalf that violence
constitutes a major form and process of oppression of women. An
understanding of gender reality over the years reveals how WP(Crl.)
No.638 of 2010 Page 3 of 25 violence has always been used as a means
to subjugate women and keep them in a position of subordination.
Gender based violence may take many different forms and there may be
distinctive patterns or manifestations of gender violence associated
with particular communities, cultures or regions and historical
epochs. Gender violence is present in all societies; it is a
structural phenomenon embedded in the context of culture,
socio-economic and emotional dependency, the property of some male
protector. Societies organized around gendered, hierarchical power
relation give legitimacy to violence against women. Violence against
women, like all other historical manifestation of violence, is
embedded in the socio-economic and political context of power
relations. It is produced within class, caste and patriarchal social
relations in which male power dominates. A narrow definition of
violence may define it as an act of criminal use of physical force.
But this is an incomplete definition. Violence also includes
exploitation, discrimination, upholding of unequal economic and social
structures, the creation of an atmosphere of terror, threat, or
reprisal and forms of religio-culture.
Thus, it is the submission of the learned counsel that when the object
and purpose, which the legislature seeks to achieve is to provide
mechanism for preventing domestic violence perpetrated by male
persons, and is, thus, gender based, necessary corollary would be that
the term "a relative" WP(Crl.) No.638 of 2010 Page 4 of 25 contained
in the proviso would mean only "adult male person" as respondent.
(b) Learned counsel proceeded to buttress his aforesaid submission by
arguing that the main provision categorically limits the category of
"respondent" within the confines of "adult male person". Once that is
the clear and categorical definition provided to the term "respondent"
in the main provision, the proviso has to take colour therefrom
inasmuch as it cannot expand or limit the scope of the main provision.
The petitioner has relied upon the judgment of the Supreme Court in
the case of Dwarka Parsad Vs. Dwarka Das Saraf [AIR 1975 SC 1758],
where following principle of law is laid down while interpreting a
proviso: "...If on a fair construction, the principle provision is
clear, a proviso canto expand or limit it. A proviso must be limited
to the subject matter of the enacting clause. A proviso must prima
facie be read and considered in relation to the principle matter to
which it is a proviso. It is not a separate or independent enactment."
(c) Submission in the alternate, as pointed out above, was that if
relative includes female, as per the proviso, then such a provision is
ultra vires Article 15 (3) of the Constitution of India. It is argued
that the said provision enables the Parliament to make law for the
welfare of women and such a law cannot be for protection of one woman
against other woman. Therefore, this provision would not withstand the
concept of reasonableness and would be arbitrary and thus violative of
Article 14and 15of the Constitution of India. WP(Crl.) No.638 of 2010
Page 5 of 25
6. Mr. A.S. Chandhiok, learned ASG appeared for Union of India. Mr.
Sanjeev Bhandari, ASC appeared for the respondent No.3/Govt. of NCT OF
Delhi. Mr. Shashank Rai, learned counsel represented the respondent
No.4 while Mr. Ravindra S. Garia, learned counsel appeared for
interveners/NGO, which was allowed to intervene and make submission.
All the counsel countered the submissions of the learned counsel for
the petitioner.
7. The purpose with which the DV Act was enacted hardly needs to be
emphasized. In fact, that is accepted even by the petitioner. The
Statement of the Objects and Reasons of the Act states that:
"Domestic violence is undoubtedly a human rights issue and serious
deterrent to development. The Vienna Accord of 1994 and Beijing
Declaration and Platform for Action (1955) have acknowledged this. The
United Nations Committee on Convention on Elimination of All Forms of
Discrimination 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. 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 Indian Penal Code. However, the civil law does
not address this phenomenon in its entirety. It is, therefore,
proposed to enact a law keeping in view the rights guaranteed under
Articles 14, 15 and 21 of the Constitution of India to provide for a
remedy under civil law, which is intended to protect the women from
being victims of domestic violence and to prevent the occurrence of
domestic violence in the society."
8. It is also accepted position between the parties that the Statue is
a special benevolent piece of legislation aimed to provide for more
effective protection of rights of women guaranteed under the
Constitution, who are victims of violence of any kind occurring within
the family and for matters connected WP(Crl.) No.638 of 2010 Page 6 of
25 therewith or incidental thereto. It would not be out of place to
mention at this stage itself that vires of the entire DV Act were
challenged by means of a petition filed in this Court, which challenge
was emphatically repelled. It happened in the case of Aruna Parmod
Shah Vs. Union of Indian (Writ Petition (Crl.) No.425 of 2008). While
dismissing challenge to the constitutionality of the aforesaid Act,
the Division Bench of this Court made the following pertinent
observations: "What Article 14 of the Constitution prohibits is "class
legislation" and not "classification for purpose of legislation". If
the legislature reasonably classifies persons for legislative purposes
so as to bring them under a well-defined class, it is not open to
challenge on the ground of denial of equal treatment that the law does
not apply to other persons. The test of permissible classification is
twofold: (i) that the classification must be founded on intelligible
differential which distinguishes persons grouped together from others
who are left out of the group, and (ii) that differential must have a
rational connection to the object sought to be achieved. Article 14
does not insist upon classification, which is scientifically perfect
or logically complete. A classification would be justified unless it
is patently arbitrary. If there is equality and uniformity in each
group, the law will not become discriminatory; though due to some
fortuitous circumstance arising out of (sic) peculiar situation some
included in a class get an advantage over others so long as they are
not singled out for special treatment. In substance, the differential
required is that it must be real and substantial, bearing some just
and reasonable relation to the object of the legislation.
Domestic Violence is a worldwide phenomenon and has been discussed in
International for a, including the Vienna Accord of 1994 and the
Beijing Declaration and the Platform for Action (1995). The United
Nations Committee Convention on Elimination of All Forms of
Discrimination against Women (CEDAW) has recommended that States
should act to protect women against violence of any kind, especially
that occurring within the family. There is a perception, not unfounded
or unjustified, that the lot and fate of women in India is an abjectly
dismal one, which requires bringing into place, on an urgent basis,
protective and ameliorative measures against exploitation of women.
The argument that the Act is ultra vires the Constitution of India
because it accords protection only to women and not to men is
therefore, wholly devoid of any merit. We do not rule out the
possibility of a man becoming the victim of domestic violence, but
such cases would be few and far between, thus not requiring or
justifying the protection of parliament."
WP(Crl.) No.638 of 2010 Page 7 of 25
9. Keeping in mind that the DV Act has been held to be a valid piece
of legislation giving power to the Parliament having regard to the
provisions of Article 15 (3) of the Constitution which gives power to
the Parliament to make such a law and thus, it is not ultra vires the
legislative power of the Parliament, we proceed to determine the tow
issues posed before us, viz., interpretation of Section 2(q) and
constitutional validity thereof.
Re: Interpretation of Section 2(q):
10. The first task is to examine the scope of the definition of the
term "respondent" as defined in Section 2 (q), particularly proviso
thereof which includes a relative of the husband or the male partner
as well who could be the respondent. Discussion in this behalf has to
start with the definition of "aggrieved person" as provided under
Section 2 (q) of DV Act inasmuch as it is that aggrieved person who is
permitted to file application and initiate proceedings under various
provisions of the Act. Section 2 (a) reads as under:
"2(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."
11. We would also take note of Section 12, 19 and 31 of DV Act as
conjoint reading of all these Sections form the basis of redressal
machinery provided to the aggrieved person in the scheme of the DV
Act. These provisions read as under: "12. Application to Magistrate.-
(1) An aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act: WP(Crl.) No.638
of 2010 Page 8 of 25 Provided that before passing any order on such
application, the Magistrate shall take into consideration any domestic
incident report received by him from the Protection Officer or the
service provider.
(2) The relief sought for under sub -Section (1) may include a relief
for issuance of an order for payment of compensation or damages
without prejudice to the right of such person to institute a suit for
compensation or damages for the injuries caused by the acts of
domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages
has been passed by any court in favour of the aggrieved person, the
amount, if any, paid or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the amount payable
under such decree and the decree, shall notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908), or any
other law for the time being in force, be executable for the balance
amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and
contain such particulars as may be prescribed or as nearly as possible
thereto.
(4) The Magistrate shall fix the first date of hearing, which shall
not ordinarily be beyond three days from the date of receipt of the
application by the Court.
(5) The Magistrate shall endeavour to dispose of every application
made under sub-Section (1) within a period of sixty days from the date
of its first hearing.
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 off 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:
WP(Crl.) No.638 of 2010 Page 9 of 25 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 pero0n 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 officer5-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.
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 extent 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 charge 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."
12. When we interpret the provisions of Section 2 (q) in the context
of the aforesaid scheme, our conclusion would be that the WP(Crl.)
No.638 of 2010 Page 10 of 25 petition is maintainable even against a
woman in the situation contained in proviso to Section 2(q) of the DV
Act. No doubt, the provision is not very satisfactorily worded and
there appears to be some ambiguity in the definition of "respondent"
as contained in Section 2 (q). The Director of Southern Institute for
Social Science Research, Dr. S.S. Jagnayak in his report has described
the ambiguity in Section 2(q) as "Loopholes to Escape the Respondents
from the Cult of this Law" and opined in the following words:
"As per Section 2 Clause (q) the respondent means any adult male
person who is or has been in a domestic relationship. Hence, a plain
reading of the Act would show that an application will not lie under
the provisions of this Act against a female. But, when Section 19(1)
proviso is perused, it can be seen that the petition is maintainable,
even against a lady. Often this has taken as a contention, when ladies
are arrayed as respondents and it is contended that petition against
female respondents are not maintainable. This is a loophole which
should be plugged."
13. But then, Courts are not supposed to throw their hands up in the
air expressing their helplessness. It becomes the duty of the Court go
give correct interpretation to such a provision having regard to the
purpose sought to be achieved by enacting a particular legislation.
This so expressed by the Supreme Court in the case of Ahmedabad
Municipal Corpn. Anr. Vs. Nilaybhai R. Thakore & Anr. [(1999) 8 SCC
139 in the following words:
"14. Before proceeding to interpret Rule 7 in the manner which we
think is the correct interpretation, we have to bear in mind that it
is not the jurisdiction of the court to enter into the arena of the
legislative prerogative of enacting laws. However, keeping in mind the
fact that the Rule in question is only a subordinate legislation and
by declaring the Rule ultra vires, as has been done by the High Court,
we would be only causing considerable damage to the cause for which
the Municipality had enacted this Rule. We, therefore, think it
appropriate to rely upon the famous and oft-quoted principle relied by
Lord Denning in the case of Seaford Court Estates Ltd. v. Asher [1994]
2 All ER 155 wherein WP(Crl.) No.638 of 2010 Page 11 of 25 he held :
"When a defect appears a judge cannot simply fold his hand and blame
the draftsman. He must set to work on the constructive task of finding
the intention of Parliament and then he must supplement the written
words so as to give 'force and life' to the intention of the
Legislature. A judge should ask himself the question how, if the
makers of the Act had themselves come across this ruck in the texture
of it, they would have straightened it out ? He must then do as they
would have done. A judge must not alter the material of which the Act
is woven, but he can and should iron out the creases". This statement
of law made by Lord Denning has been consistently followed by this
Court starting in the case of M. Pentiah and Ors. v. Muddala
Veeramallappa and Ors. : [1961]2SCR295 and followed as recently as in
the case of S. Gopal Reddy v. Slate of Andhra Pradesh : 1996CriLJ3237
. Thus, following the above Rule of interpretation and with a view to
iron out the creases in the impugned Rule which offends Article 14, we
interpret Rule 7 as follows : "Local student means a student who has
passed H.S.C./New S.S.C. examination and the qualifying examination
from any of the High Schools or Colleges situated within the Ahmedabad
Municipal Corporation limits and includes a permanent resident student
of Ahmedabad Municipality who acquires the above qualifications from
any of the High School or College situated within Ahmedabad Urban
Development Area."
14. This Court also followed the aforesaid principles in the case of
Star India P. Ltd. Vs. The Telecom Regulatory Authority of India and
Ors. [146 (2008) DLT 445 (DB) in the following words:
"28. It is also a firmly entrenched principle of interpretation of
statutes that the Court is obliged to correct obvious drafting errors
and adopt the constructive role of 'finding the intention of
Parliament... not only from the language of the statute, but also from
a consideration of the social conditions which gave rise to it' as
enunciated in State of Bihar v. Bihar Distillery Ltd.: AIR1997SC1511 .
The Court should also endeavor to harmoniously construe a statute so
that provisions which appear to be irreconcilable can be given effect
to, rather than strike down one or the other. It must also not be
forgotten that jural presumption is in favor of the constitutionality
of a statute."
15. Having regard to the purpose which the DV Act seeks to achieve and
when we read Section 2 (q) along with other provisions, out task is
quite simple, which may in first blush appears to be somewhat tricky.
We are of the considered view that the manner in which definition of
"respondent" is given WP(Crl.) No.638 of 2010 Page 12 of 25 under
Section 2(q) of DV Act, it has to be segregated into two independent
and mutually exclusive parts, not treating proviso as adjunct to the
main provision. These two parts are: a) Main enacting part which deals
with those aggrieved persons, who are "in a domestic relationship".
Thus, in those cases where aggrieved person is in a domestic
relationship with other person against whom she has sought any relief
under the DV Act, in that case, such person as respondent has to be an
adult male person. Given that aggrieved person has to be a female,
such aggrieved person in a domestic relationship can be a mother, a
sister, a daughter, sister-in-law, etc. b) Proviso, on the other hand,
deals with limited and specific class of aggrieved person, viz. a wife
or a female living in relationship in the nature of marriage. First
time by this legislation, the legislator has accepted live in
relationship by giving those female who are not formally married, but
are living with a male person in a relationship, which is in the
nature of marriage, also akin to wife, though not equivalent to wife.
This proviso, therefore, caters for wife or a female in a live in
relationship. In their case, the definition of "respondent" is widened
by not limiting it to "adult male person" only, but also including "a
relative of husband or the male partner", as the case may be.
WP(Crl.) No.638 of 2010 Page 13 of 25 What follows is that on the one
hand, aggrieved persons other than wife or a female living in a
relationship in the nature of marriage, viz., sister, mother, daughter
or sister-in-law as aggrieved person can file application against
adult male person only. But on the other hand, wife or female living
in a relationship in the nature of marriage is given right to file
complaint not only against husband or male partner, but also against
his relatives.
16. Having dissected definition into two parts, the rationale for
including a female/woman under the expression "relative of the husband
or male partner" is not difficult to fathom. It is common knowledge
that in case a wife is harassed by husband, other family members may
also join husband in treating the wife cruelty and such family members
would invariably include female relatives as well. If restricted
interpretation is given, as contended by the petitioner, the very
purpose for which this Act is enacted would be defeated. It would be
very easy for the husband or other male members to frustrate the
remedy by ensuring that the violence on the wife is perpetrated by
female members. Even when Protection Order under Section 18 or
Residence Order under Section 19 is passed, the same can easily be
defeated by violating the said orders at the hands of the female
relatives of the husband.
17. It is not even necessary to proceed on the aforesaid assumptions.
Various provisions in the DV Act, provide for clinching the
circumstances indicating that female relative was WP(Crl.) No.638 of
2010 Page 14 of 25 clearly in the mind of the legislature when it
comes to filing of the complaint/application by a wife or a female
living in a relationship in the nature of marriage, as contemplated in
proviso to Section 2(q). These provisions are Section 19, 21 and 31 of
the DV Act. The wordings of Section 19 of the DV Act makes it clear
that the section provides for disposal of applications made under
sub-section (1) of Section 12 by the Magistrate. Under Sub-section (1)
of Section 19, the Magistrate can pass any order against a female
person other than the orders under Clause (b). Whereas proviso to Sub-
section (1) of Section 19 puts a bar on the power of the Magistrate
for passing an order against any person who is a woman under Section
19(1)(b). In other words, except residence order under Section
19(1)(b), it is competent for the Magistrate to pass orders against
the relatives of the husband including a female person under Section
19(1)(c) i.e., restraining the respondent or any of his relatives from
entering any portion of the shared household in which the aggrieved
person resides. For example, if the aggrieved person along with
husband resides in a house owned by joint family including the
presents of the respondent, his brothers and sisters, if any whether
or not the respondent has no legal or equitable interest or title in
the shared household, he can be restrained form dispossessing the
aggrieved person. Further, under Sub-section (8) of Section 19, if an
aggrieved person was provided with residential house towards her
Stridhan, property or valuable security, namely, gold jewellery etc.,
which was in possession of the female member of the husband. Section
21 WP(Crl.) No.638 of 2010 Page 15 of 25 of the Act deals with grant
of temporary custody of any child or children to the aggrieved person
or the person making an application on her behalf and specifies
necessary arrangements for visit of such child or children by the
respondent. For instance, if the children are under the custody of
mother-in-law of an aggrieved person, if we give a restricted meaning
to Section 2(q), no such order can be passed for giving temporary
custody of the child against a female relative of the husband, i.e.,
father, mother who are residing jointly.
18. Another provision, viz., Section 31 of the DV Act would also lead
us to the same answer. This exercise has already been undertaken by
the Division Bench of the Kerala High Court in the case of
Vijayalekshmi Amma Vs. Bindu [2010(1) KLT 79] in the following words:
"8. It is to be borne in mind that Sub-section (1) of Section 31 only
provides that a breach of protection order or of an interim protection
order, by the respondent shall be an offence under the Act and shall
be punishable with the sentence provided therein. Section 32 provides
for cognizance and proof of the offence. Under Sub-section (1)
notwithstanding anything contained in the Code of Criminal Procedure,
the offence under Sub-section (1) of Section 31 shall be cognizable
and non-bailable. Under Sub-section (2) of Section 32, upon the sole
testimony of the aggrieved person, the court may conclude that an
offence under Section 31(1) has been committed by the accused. Under
Sub-section (1) of Section 31 it is only the breach of a protection
order under Section 18 or an interim protection order under Section 23
which is made punishable. As is clear from Sub-section (1) of Section
31, such breach shall be by the "respondent". Therefore unless the
"respondent" could be a female person, an offence cannot be committed
by breach of such an order by a female person. If that be so, the
complaint provided under proviso to Clause (q) of Section 2, cannot be
a complaint as interpreted by the learned Judge, as it is an
impossibility because if a female person cannot be a respondent as
defined under Section 2(q), no protection order under Section 18 or
interim protection order under Section 23 could be passed against the
female person and in that case the proviso enabling filing of a
complaint against the female relative of the husband would be
redundant. If that be so, it could only be taken that the complaint
provided WP(Crl.) No.638 of 2010 Page 16 of 25 in the proviso to
Clause (q) of Section 2 is the application filed under Section 12,
though inadvertently an application is referred in the Section as
complaint. A learned single Judge of this Court in Remadevi v. State
of Kerala 2008 (4) KLT 105 has taken an identical view that respondent
as defined under Section 2(q) could also be a female person. It cannot
be said that proceedings under Section 12 cannot be initiated against
a female person."
19. It is also well-recognized principle of law that while
interpreting a provision in statute, it is the duty of the Court to
give effect to all provisions. When aforesaid provisions are read
conjointly keeping the scheme of the DV Act, it becomes abundantly
clear that the legislator intended female relatives also to be
respondents in the proceedings initiated by wife or female living in
relationship in the nature of marriage.
20. If the proviso is not construed independently, in the manner we
have explained above and the meaning of the term "respondent" is
restricted only to the male persons while construing the expression "a
relative of the husband or male person", then the aforesaid provisions
contained in Sections 19 and 31 shall be rendered obtuse. This is not
contemplated under the scheme of the DV Act and would be contrary to
well- settled principle of interpretation. In Bhavnagar University Vs.
Palitana Sugar Mill Pvt. Ltd. and Ors. (AIR 2003 SC 511), the Apex
Court categorically laid down that the legislature does not use any
word unnecessarily. Every word or expression used in a stature ha a
meaning, a reason and it cannot be devoid from its reason.
Interpreting the statute without reason underlying it would be like
"body without a soul". We may also usefully quote the following
observations of the Supreme Court in the case of Utkal Contractors and
WP(Crl.) No.638 of 2010 Page 17 of 25 Joinery Pvt. Ltd. and Ors. Vs.
State of Orissa and Ors. [(1987) 3 SCC 279]:
"...A statute is best understood if we know the reason for it. The
reason for a statute is the safest guide to its interpretation. The
words of a statue take their colour from the reason for it."
21. The Single Bench of Madhya Pradesh High Court in the case of Ajay
Kant and Ors. Vs. Alka Sharma [2008 CrilJ 264] does not at all discuss
the aforesaid provisions of the DV Act and parameters with which such
a statute to be interpreted. We, therefore, are not in agreement with
the aforesaid view of MP High Court. Apart from solitary view of
Madhya Pradesh High Court, all other High Courts which have dealt with
this issue have taken the view, which we have advanced in this
judgment. The learned counsel for the petitioner had referred to the
judgment rendered by the Single Bench of Madras High Court in the case
of Uma Narayanan Vs. Priya Krishna Prasad [(2008) 3 MLJ 756]. However,
this judgment has since been overruled by its Division Bench in the
case of S. Meenavathi Vs. Senthamarai Selvi (Crl. O.P. (MD)
No.12092/2008) and R. Nivenran and Ors. Vs. Nivashini Mohan @ M.
Nivashini (Crl. O.P. No.24598/2008). The Division Bench of Kerala High
Court has also taken the same view in Vijayalekshmi Amma (supra) has
already been pointed out above. The Rajasthan High Court in the case
of Nand Kishore Vs. State of Rajasthan [RLW 2008 (4) RAJ 3432] and
Sarita (Smt.) Vs. Smt. Umarao [2008 (1) WLN 359], Andhra Pradesh High
Court in Afzalunnisa Begum Vs. State of A.P. [2009 Crl.LJ 4191] and
Gujarat High Court in WP(Crl.) No.638 of 2010 Page 18 of 25 the case
of Jaudipsinh Prabatsinh Jhala and Others [(2010) 51 GLR 635] have
also given the same interpretation.
22. We, thus, hold that the expression "a relative" in proviso to
Section 2(q) includes a female relative as well. Re: Constitutional
Validity of Section 2(q):
23. This brings us to the last leg of petitioner"s submission, viz.,
whether such a provision would be unconstitutional. As pointed out
above, submission of the learned counsel for the petitioner was that
the DV Act is enacted to protect women at the hands of men, therefore,
a woman cannot be respondent in a petition filed by another woman. We
are afraid there is hardly any merit in the argument. We have already
pointed out above that Section 2 (q) has provided two classes of
aggrieved persons. Main provision deals with those, who are in a
"domestic relationship" with the respondent whereas proviso deals with
aggrieved wife or a female in live-in relationship. Insofar as the
latter category is concerned, the legislature in its wisdom, has
widened the scope of "respondent" by including male as well as female
relatives of the husband or male partner also. Rationale for this is
not far to seek.
24. No doubt, when we talk of domestic violence against women, it may
include all women in legal relationship. The Declaration on
illumination of discrimination is as under: "Violence against women is
a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination
against women by men and to the prevention of the full advancement
WP(Crl.) No.638 of 2010 Page 19 of 25 of women, and that violence
against women is one of the crucial social mechanisms by which women
are forced into s subordinate position compared with men.
- Declaration on Elimination of Violence against Women, 1993."
At the same time, it is also well-known that most of the time, it is
the wife which becomes the target and subject matter of such domestic
violence. Apart from many other reasons, most prevalent cause is the
dowry. The Parliament in India has been enacting statutes from time to
time in order to curb this menace. Dowry Provision Act, 1961 was
enacted, which identifies dowry as social evil and giving and taking
dowry was prohibited by law. Human rights activities feel that demand
for dowry reflects the degraded women in the society. It is the
negation of women"s human rights including their right to equality. It
also becomes main cause of domestic violence targeting women bringing
insufficient dowry at the time of marriage. Though the intention was
to eliminate, or at least curb the dowry system continued (and
continues till date) in spite of the said Act having passed half a
century ago. It even leads to what is commonly described as "dowry
death". The fact that the violence exists in the matrimonial home, the
legislature made dowry related violence as criminal offence by
introducing Section 498A IPC in the year 1983. Significantly,
constitutional validity of Section 498A was upheld by the Supreme
Court in the case of Sushil Kumar Sharma Vs. Union of India and Others
[AIR 2005 SC 3100]. Within three years, Section 304B IPC was
introduced, which made the unnatural death of a woman in the
matrimonial home, within seven years of marriage, an offence, if it
could be shown that WP(Crl.) No.638 of 2010 Page 20 of 25 she was
subjected to cruelty immediately before her death. There have been
voices that Section 498A is misused. Fact also remains that dowry
related crimes still continue to occur. At times, female relatives of
the husband are also actively involved.
25. Since invoking criminal machinery under Section 498A IPC has
serious ramifications, need was felt to have civil law on domestic
violence inasmuch as there was no law enabling the Court to give
protection order to give monetary relief in case women go to Court
complaining violence. In order to provide such remedies, DV Act has
been enacted. It is in this backdrop, we have to appreciate that
married women (i.e. wives) are given rights to agitate their
grievances against wide spectrum of respondents under proviso to
Section 2(q) of the DV Act, with attempt to put an end to domestic
violence and at the same time saving matrimonial home, which was not
possible under the remedies provided in criminal law and there was no
such provision under the existing Family Laws. When this was the
lacuna in law sought to be plugged by passing the DV Act and the
purpose was to remove the said mischief, leaving family relatives of a
husband or a male partner out of purview of the "respondent" would
negate the purpose for which the DV Act is passed. Therefore, even the
mischief rule of interpretation, commonly known as Heyden"s Rule
squarely becomes applicable, which persuades us to provide that
construction to the provision which shall suppress the mischief, and
advance the remedy, and to suppress subtle WP(Crl.) No.638 of 2010
Page 21 of 25 inventions and evasions for continuance of the mischief,
and pro privato commodo, and to add force and life to the cure and
remedy, according to the true intent of the makers of the Act, pro
bono publico (see Bengal Immunity Co. Vs. State of Bihar, AIR 1955 SC
661).
26. We, therefore, are of the opinion that a wife or a female living
in a relationship in the nature of marriage belongs to "a well defined
class". The legislation passes the test of permissible classification
as both the conditions stand satisfied, viz., (i) classification is
founded on intelligible differentia; and (ii) differential as a
rational relation to the objective sought to be achieved by the
statutes, i.e., DV Act.
27. It, therefore, cannot be treated as irrational or arbitrary
provision, which would render it violative of Article 14 of the
Constitution. Following observations of the Supreme Court in case of
State of A.P. Vs. Nallmillin Rami Reddi [AIR 2001 SC 3616] would
justify the permissibility of the aforesaid classification:
"What Article 14 of the Constitution prohibits is "class legislation"
and not "classification for purpose of legislation". If the
legislature reasonably classifies persons for legislative purposes so
as to bring them under a well-defined class, it is not open to
challenge on the ground of denial of equal treatment that the law does
not apply to other persons. The test of permissible classification is
twofold: (i) that the classification must be founded on intelligible
differential which distinguishes persons grouped together from others
who are left out of the group, and (ii) that differential must have a
rational connection to the object sought to be achieved. Article 14
does not insist upon classification, which is scientifically perfect
or logically complete. A classification would be justified unless it
is patently arbitrary. If there is equality and uniformity in each
group, the law will not become discriminatory; though due to some
fortuitous circumstance arising out of (sic) peculiar situation some
included in a class get an advantage over others so long as they are
not singled out for special treatment. In substance, the differential
required is that it must be real WP(Crl.) No.638 of 2010 Page 22 of 25
and substantial, bearing some just and reasonable relation to the
object of the legislation."
28. Merely because amplitude of "respondent" in a case where a wife or
female living in a relationship akin to marriage initiates the
proceedings is widened, would not be a ground to hold that such a
provision is "ultra vires". Fallacy in the argument of the learned
counsel for the petitioner is that he is seeking to compare the two
categories of "aggrieved persons"; one provided in the main provision
of Section 2(q) and other in proviso thereto. No doubt, the scope of
the "respondent" is restricted in the former category of cases.
However, if at all that would be a cause of grievance by those
aggrieved persons falling in the first category. The petitioner cannot
be permitted to take such plea thereby putting at naught the more
benevolent provision in the legislation in respect of a wife or a
female living in a relationship in the nature of marriage.
29. For centuries, jurists and legal scholars have debated about the
functions of law, viz., why do we need law, and what does it do for
society? More specifically, what functions does the law perform?
Though there may not be unanimity amongst the scholars of law on the
precise functions, it is widely recognized that the recurring theme of
law includes; (i) social control, (ii) disputes settlement and (iii)
social engineering. Though there are many methods of social control,
law is considered one of the forms of former social control by
prescribing social norms within which individuals/members of the
society have to behave. Likewise, law discharges the functions of
disputes settlement, i.e., disputes are settled by WP(Crl.) No.638 of
2010 Page 23 of 25 application of the law of land providing for legal
rights and obligations. Apart from these, many scholars are of the
view that principal function of law in modern society is social
engineering (with which we are concerned here). It refers to
purposive, application and direct social change initiated, guided and
supported by law. Roscoe Pound captures the essence of this function
of law when he states: "For the purpose of understanding the law of
today, I am content to think of law as a social institution to satisfy
social wants - the claims and demands involved in the existence of
civilized society - by giving effect to as much as we need with the
least sacrifice, so far as such wants may be satisfied or such claims
give effect by an ordering of human conduct through politically
organized society. For present purposes I am content to see in legal
history the record of a continually wider recognizing and satisfying
of human wants or claims or desires through social control; a more
embracing and more effective securing of social interests; a
continually more complete and effective elimination of waste and
precluding of friction in human enjoyment of the goods of existence -
in short, a continually more efficacious social engineering.
(1959:98-99)."
30. Though it will remain a matter of never ending debate as to
whether law brings social change or social changes in society brings
law (i.e. whether law "leads" change or "follows" change), it has to
be accepted that many times laws are passed to ensure normative
changes in the society. Abolition of Sati Pratha by an appropriate
enactment is a sterling example. In broad terms, "change" is of two
types: continuous or evolutionary and discontinuous or revolutionary.
The most common form of change is continuous. This day-to-day
incremental change is a subtle, but dynamic, factor in social
analysis.
31. The journey from enacting Dowry Prohibition Act, 1961 to Amendment
in IPC by incorporating Section 498A and 304B to WP(Crl.) No.638 of
2010 Page 24 of 25 the passing of DV Act is aimed at bringing
desirable and much needed social change in this particular sphere.
Therefore, Courts are required to give an interpretation which
subserves the aforesaid purpose with which the law is enacted. The
contention advanced by the petitioner, which negates the right given
to women by this legislation has to be eschewed.
32. We, thus, find no merit in this writ petition and dismiss the
same. No order as to costs.
(A.K. SIKRI)
JUDGE
(AJIT BHARIHOKE)
JUDGE
JUNE 03, 2010.
pmc
WP(Crl.) No.638 of 2010 Page 25 of 25
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