2016 (10) TMI 1352 - SC - Indian Laws

Supreme Court Strikes Down Gender-Specific Terms in Domestic Violence Law, Ensures Gender-Neutral Protection

Hiral P. Harsora and Ors. Versus Kusum Narottamdas Harsora and Ors.

The Supreme Court found the words 'adult male' in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, to be discriminatory and in ... Constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 - Domestic violence - protection of the female sex generally - what exactly is the object sought to be achieved by the 2005 Act? - HELD THAT:- 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 - 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. A conspectus of these judgments also leads to the result that the microscopic difference between male and female, adult and non adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy judgment [2014 (5) TMI 783 - SUPREME COURT], the words 'adult male person' are contrary to the object of affording protection to women who have suffered from domestic violence 'of any kind' - the words 'adult male' before the word 'person' in Section 2(q) are struck off, as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act. Having struck down these two words from the definition of 'Respondent' in Section 2(q), the next question that arises is whether the rest of the Act can be implemented without the aforesaid two words. This brings us to the doctrine of severability - a doctrine well-known in constitutional law and propounded for the first time in the celebrated R.M.D. Chamarbaugwalla v. Union of India [1957 (4) TMI 56 - SUPREME COURT]. This judgment has been applied in many cases. It is not necessary to refer to the plethora of case law on the application of this judgment, except to refer to one or two judgments directly on point. An application of the severability principle would make it clear that having struck down the expression 'adult male' in Section 2(q) of the 2005 Act, the rest of the Section is left intact and can be enforced to achieve the object of the legislation without the offending words. Under Section 2(q) of the 2005 Act, while defining 'Respondent', a proviso is provided only to carve out an exception to a situation of 'Respondent' not being an adult male. Once 'adult male', is struck off, the proviso has no independent existence, having been rendered otiose. Having struck down a portion of Section 2(q) on the ground that it is violative of Article 14 of the Constitution of India, it is not deemed necessary to go into the case law cited by both sides on literal versus purposive construction, construction of penal statutes, and the correct construction of a proviso to a Section. None of this becomes necessary in view of our finding above. It is declared that the words 'adult male' in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted - appeal disposed off. Issues Involved:1. Constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005.Issue-wise Detailed Analysis:1. Constitutional Validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005:The Supreme Court granted leave to appeal against a judgment of the Bombay High Court, which had read down Section 2(q) of the Protection of Women from Domestic Violence Act, 2005. The appeal raised an important question regarding the constitutional validity of Section 2(q) of the 2005 Act, which defines 'Respondent' as 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 the Act.Background:The case originated from complaints filed by a mother and daughter against their male relatives and female relatives under the 2005 Act. The complaints were initially withdrawn and refiled after a few years. The Metropolitan Magistrate refused to discharge the female respondents, but the Bombay High Court later discharged them based on a literal interpretation of Section 2(q), which restricts complaints to adult male persons.High Court's Interpretation:The Bombay High Court read down Section 2(q) to include female relatives as respondents when they are co-respondents in a complaint against an adult male person. However, the High Court maintained that a complaint under the DV Act would not be maintainable against female relatives if no complaint is filed against an adult male person.Arguments by the Appellant:The appellant argued that the term 'Respondent' in Section 2(q) clearly means an adult male person, and the proviso only extends to female relatives in specific cases involving an aggrieved wife or female partner. The appellant contended that the High Court's interpretation effectively rewrote the statute, which is impermissible. They emphasized that the 2005 Act is a penal statute and should be strictly construed.Arguments by the Respondent:The respondent argued that the 2005 Act is a social beneficial legislation aimed at protecting women from domestic violence. They contended that restricting the definition of 'Respondent' to adult male persons violates Article 14 of the Constitution, as it does not align with the Act's objective of providing comprehensive protection to women. The respondent suggested that the term should be read down to include female relatives to fulfill the Act's purpose.Supreme Court's Analysis:The Supreme Court examined the object and purpose of the 2005 Act, which aims to provide effective protection to women from domestic violence. The Court noted that domestic violence can be perpetrated by both male and female members of a household and that the Act's remedies should be available against all perpetrators, regardless of gender.The Court found that the definition of 'Respondent' in Section 2(q) was inconsistent with the Act's objective, as it excluded female perpetrators and non-adult males from its scope. This exclusion created anomalies and limited the effectiveness of the Act's protections. The Court highlighted that the term 'domestic relationship' includes relationships involving both male and female members, and the Act's provisions should reflect this inclusivity.Judgment:The Supreme Court struck down the words 'adult male' from Section 2(q) of the 2005 Act, finding them discriminatory and violative of Article 14 of the Constitution. Consequently, the proviso to Section 2(q) was also rendered otiose and deleted. The Court emphasized that the remaining provisions of the Act could be implemented without the offending words, thereby achieving the Act's objective of protecting women from domestic violence.The Court set aside the impugned judgment of the Bombay High Court and declared the words 'adult male' in Section 2(q) unconstitutional. The Court also noted that the respondent's counsel had agreed not to pursue the revived complaints from 2010, and thus, nothing survived in those complaints.Conclusion:The Supreme Court's judgment ensures that the Protection of Women from Domestic Violence Act, 2005, provides comprehensive protection to women by allowing complaints against all perpetrators of domestic violence, regardless of gender or age. The decision aligns the Act with its intended purpose of safeguarding women's rights and addressing domestic violence in all its forms.