This case analysis is written by Mahima Mehra, a student of BBA.LLB, Symbiosis Law School, Noida.
Table of Contents
Introduction
This case is a Civil Appeal no. 10084 of 2016, Arising out of the Special Leave Petition (Civil) No. 9132 of the year 2015. The appeal talks about the constitutional validity of the Section 2(q) ]of the “Protection of Women from Domestic Violence Act, 2005” which gives us the definition of the term “respondent” as any “adult male person”, and that the complaint can be filed by the aggrieved wife or female partner living in a relationship which is by nature that of a marriage, against the husband or any of his relative. This provision is being seen as contradictory to the Article 14 of the “Constitution of India, 1949”. Due to the words “adult male person”, any complaint against the respondent number 2 to 4, which are daughter-in-law, sister-in-law, or sister of the complainant shall not be maintainable if no complaint is made against any of the “adult male members” of the family.
The judgement was heard in the apex court, i.e. the Supreme Court of India, it was decided on 6th October, 2016. The Honourable Judges present in the case were – Justice Kurian Joseph and Justice Rohinton Fali Nariman. The judgement in question is of twenty-six pages.
Facts of the case
Kusum Narottam Harsora and her mother Pushpa Narottam Harsora on 3rd April, 2007 filed a complaint against their brother/ son Pradeep, his wife and the two sisters/ daughters under “The Protection of Women from Domestic Violence Act, 2005”, while alleging numerous acts proving violence against both the complainants. The aforementioned complaint was withdrawn on 27th June 2007, with having the liberty of filing a new complaint in the given matter. The mother and the daughter then subsequently filed two different complaints against all the aforementioned respondents. The respondents’ counsel moved an application before the Metropolitan Magistrate seeking the discharge of Respondents No. 2 to 4, i.e. the wife of the son/brother Pradeep, and his two sisters, as the said complaint was filed under Section 2(a)[3] which is to be read along Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005”, and due to those provisions, the complaint can only be made against any “adult male member”, and it was mentioned that as the Respondents’ no. 2 to 4 did not fall in the category of being “adult male”, they shall be discharged.
The Metropolitan Magistrate dismissed the application by rejecting it. The Respondents then appealed by the way of a writ petition filed against the said order in the Bombay High Court. On 15th February 2012, the Bombay High Court, on the basis of a literal construction of “The Protection of Women from Domestic Violence Act, 2005”, the writ petition was accepted by the Hon’ble Judge, and the three respondents, i.e. no 2 to 4, the wife of Pradeep, and the two sisters/ daughters were discharged from the said complaint. The High Court order then subsequently attained finality in the given case. The current case and proceedings came up due to the fact that the Complainants, i.e. the mother and the daughter filed a petition, against the judgment dated 25th September, 2014 of a Division Bench of the Bombay High Court, challenging the constitutional validity of Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005” The High Court by the way of the impugned judgement had held that the provisions of the term “Respondent” mentioned in Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005” shall not be read and interpreted in isolation rather they shall be read as being a part of the scheme of the entire “The Protection of Women from Domestic Violence Act, 2005”. This should be read in particularly with the given definitions of terms such as “aggrieved person”, “domestic relationship” and “shared household” given in the clauses (a), (f) and (s) of Section 2 of “The Protection of Women from Domestic Violence Act, 2005”, respectively.
If this procedure is followed and the provisions are read in consonance with one another, the complaint filed by the mother and daughter, which is alleging acts of domestic violence done against them by the son/ brother, his wife, and the two daughters/ sisters, can be subsequently maintainable not just against the “adult male member” i.e. the son/ brother, who was or still is in a domestic relation with his mother and sister, who are the complainants, the aggrieved, rather it can also be filed and maintained against any relative of the brother/ son which shall be including the wife and the sisters of Pradeep, i.e. the son/ brother.
Therefore, it can be seen that the complaint can be maintainable against the wife and the sisters under the provisions of The Protection of Women from Domestic Violence Act, 2005”, in a situation where the wife and the sisters are named as Co – Respondents in a complaint filed against the “adult male member” where the “adult male member” was or is still in a domestic nature of relationship with the complainants, i.e. his mother and sister, as well as with the co-respondents, i.e. his wife and the other two sisters. However, there is no provision in a complaint filed under “The Protection of Women from Domestic Violence Act, 2005” to be maintainable, if the said complaint is filed only against the daughter-in-law, sister-in-law, or the sister or daughter of the aggrieved complainants., in a situation where there is no complaint filed against any “adult male member” of the family.
Relevant laws
The original complaint was filed under “The Protection of Women from Domestic Violence Act, 2005”, against the Respondents, i.e. Pradeep, the son/ brother, his wife, and the two sisters/ daughters. The main provision in question in the current petition is the Section 2(q) of Act and the other sub-sections which are involved in this case are Section 2 (a), (f) and (s). Section 2(q) of the Act is said to be violative of Article 14 of “The Constitution of India, 1949”. The counsel to prove their respective points depend upon “The Hindu Succession Act in 2005” as well. The Statement of Objects and Reasons of “The Protection of Women from Domestic Violence Act, 2005” as well as its preamble have been heavily lied upon to deliver the judgement. Other than that Section 3, 17, 18, 19, 20, 26 and 31 of “The Protection of Women from Domestic Violence Act, 2005” have also been read to come to a decision. There have been references made to various previous cases as well in order to reach a satisfactory conclusion and decision. The precedents which were taken into account for reaching this judgment are –
- “Corporation of Calcutta v. Calcutta Tramways Co. Ltd, “In which the applicability of the doctrine of Sustainability can be seen, which answers the question that if two words are struck down can the rest of the provision remain untouched.
- Satyawati Sharma v. Union of India, this takes into precedence the aforementioned case to prove the doctrine of sustainability.
- Motor General Traders v. State of A.P, is also referred to further prove the applicability of Section 2(q) even after the words “adult male member” will be struck down”.
- Shashikant Laxman Kale v. Union of India, has been referred to ascertain the ambit of protection of women in general by “The Protection of Women from Domestic Violence Act, 2005”.
Issues
- The Court needs to ascertain the objective of “The Protection of Women from Domestic Violence Act, 2005” and its role in protecting the women in general, and in order to do so the court shall assess its Statement of Objects and Reasons as well as the Preamble of “The Protection of Women from Domestic Violence Act, 2005”.
- If the words “adult male member” are violative in nature to the Article 14 of “The Constitution of India, 1949” and are they becoming a hurdle in letting all the women get justice from this act, i.e. “The Protection of Women from Domestic Violence Act, 2005”.
- If the words “adult male member” of the Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005” are struck down, would it let the rest of the provision remain valid or would that render this subsection invalid?
Judgement
The judgement given by the Hon’ble Supreme Court was, that it set aside the impugned judgement given by The Bombay High Court and the declaration was made that the words “adult male” given in the definition of “Respondent” in the Section 2(q) of the Act shall be struck down and would be deleted from henceforth. The Ratio behind the same was that the words were in violation of Article 14 of “The Constitution of India,1949”. It was also made clear that the Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005” shall not be rendered invalid, and only the said words i.e. “Adult male” are being struck down, the rest of the sub section remains as it is and is valid.
Analysis
Judge’s reasoning
The following are the reasons of logic which the judges derived in order to reach the following conclusion and deliver the said judgement –
- After reading the Statement of Objects and Preamble, the court came to the conclusion that the problem of Domestic Violence against Women is still prevailing, and there is hardly any redressal available in the civil law, there are some redressal available to the aggrieved in the Criminal law, therefore “The Protection of Women from Domestic Violence Act, 2005” is important.
- The restriction of the Respondent to being an adult is not valid anymore as it is not difficult to find a 16/17-year-old person participating or abetting in domestic violence against the aggrieved, or may be found helping in the act of evicting the aggrieved from the shared household. Therefore, the word “adult” is struck down.
- The differentiation between the male and female, and the adult and non-adult, is not done on any reasonable grounds, and the term “adult male member” stands obsolete, it leaves the female or the non-adult perpetrators and thus fail to fulfil the objective of the act, i.e. to provide protection against domestic violence to aggrieved women.
- The words “adult male” being struck down would not make the rest of the sub section or section obsolete or invalid, only the definition of the word “Respondent” shall be changed, and it shall include anyone and everyone without discriminating on gender or age.
- As the words “adult male” were in violation of Article 14 of “The Constitutions of India, 1949”, they were struck down and the rest of the provision stayed intact and valid.
Critique
The judgement given is one of the important judgements in relation to Protection of Women against cases of Domestic violence as now even the perpetrators who are not male or adult, yet guilty can be taken to the court and a suit against them would be maintainable. These days the cases of Domestic Violence are not just on women, even men are facing the problems of Domestic Violence, and now that the provision allows women to be respondents, such cases can be dealt with as well, under this provision. However, the reasoning of court to look into other legislation’s definitions in order to rectify its own, does not make sense, as it is not the court’s duty to bring uniformity in all the related legislations, specifically in a case which deals with only one such legislation’s one particular subsection definition, i.e. Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005”. Secondly, the legislations looked upon were “The Hindu Succession Act, 1956”, and the amendment in question was taken place on 9th September 2005, whereas “The Protection of Women from Domestic Violence Act, 2005” was enacted on 13th September, 2005.
That means the amendment of “The Hindu Succession Act, 1956” was done before the enactment of the said act, so if the Legislators did not deem it necessary to refer to the amendment while enacting “The Protection of Women from Domestic Violence Act, 2005”, the court need not take the said task upon itself. Moreover, the court looks into the definition of “respondent” provided in “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, stating that the parliament has widened the scope of the term “Respondent”, therefore similar changes should be brought to Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005”, however this does not make sense, as in the 2002 bill of The Protection of Women from Domestic Violence, did not make any mention to “adult male”, however in the 2005 Act, they made such an exception, then again in 2013, they did not, so this going back and forth does not support the statement that the Parliament widened the scope, rather it just points out how the Parliament themselves took 2 separate stands on 3 separate occasions.
Conclusion
In the above project, I have tried to highlight the Judgement of “HIRAL P. HARSORA AND ORS. vs. KUSUM NAROTTAMDAS HARSORA AND ORS.” and the ratio behind it. The judgement talks about the term “adult male” being struck down from the Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005” because it is in violation to the Article 14 of “The Constitution of India, 1949”. In the Analysis part, I have tried to explain the ratio, the judge’s reasoning behind the statement, i.e. because of the said Section 2(q) the complete objectives of the act, i.e. to safeguard women against domestic violence were not being fulfilled, as it gave a loophole to the female or non-adult preparators to commit the acts of domestic violence, and yet no suit would be maintainable against them. Therefore, that has been rectified by this judgement, moreover, I have tried to critique the judgement. The judgement in itself is an important one, and would help various more cases of Domestic Violence to be solved, and more women can be safe-guarded, however the reasons given to strike down the expression were a little dicey and faulty according to me, and I have tried to point out the same.
References
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