Hiral P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. - (Supreme Court) (06 Oct 2016)

Supreme Court strikes down words "adult male" from proviso of Section 2(q) DMV Act as same is contrary to object of affording protection to women

MANU/SC/1269/2016

Constitution

Present appeal arises out of a judgment passed by Division Bench of Bombay High Court raising an important question as to constitutional validity of Section 2(q) of Protection of Women from Domestic Violence Act, 2005. An application was moved before Metropolitan Magistrate for a discharge of Respondent Nos. 2 to 4 stating that as complaint was made under Section 2(a) read with Section 2(q) of 2005 Act, it can only be made against an adult male person and three Respondents not being adult male persons were, therefore, required to be discharged. Metropolitan Magistrate passed an order in which such discharge was refused. Bombay High Court, on a literal construction of 2005 Act, discharged three Respondents from complaint.

Protection of Women from Domestic Violence Act, 2005 is to provide for effective protection of rights of women who are victims of violence of any kind occurring within family. The preamble also makes it clear that reach of the Act is that violence, whether physical, sexual, verbal, emotional or economic, are all to be redressed by statute. That perpetrators and abettors of such violence can, in given situations, be women themselves, is obvious.

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. 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. When Section 3 of 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.

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. Restriction of such person to being an adult male alone is not a differentia which would be in sync with object sought to be achieved under 2005 Act, but would in fact be contrary to it.

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. 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".

Microscopic difference between male and female, adult and non adult, regard being had to 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 principle settled in Subramanian Swamy judgment, words "adult male person" are contrary to object of affording protection to women who have suffered from domestic violence "of any kind". Therefore, Supreme Court strikes down words "adult male" before the word "person" in Section 2(q), as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act.

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' struck down, proviso has no independent existence, having been rendered otiose. Supreme Court declared words "adult male" in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of Constitution of India. Consequently, proviso to Section 2(q), being rendered otiose, also stands deleted.

Relevant : Sections 2(q), 19(1)(c), 3 of Protection of Women from Domestic Violence Act, 2005, Subramanian Swamy v. CBI MANU/SC/0417/2014 : (2014) 8 SCC 682

Tags : PROVISION CONSTITUTIONAL VALIDITY