Authored By: Aryamann Bhatia
Citation: Civil Appeal no. 10084 of 2016
Date of judgement: 6th October,2016
Division bench: Justice Kurian Joseph and Justice Rohinton Fali Nariman
Court: The Supreme Court of India
Introduction
Women for centuries have been subjected to abuse and violence at their homes. In recent times, when a lot of people are confined to their homes due to covid pandemic, there has been a significant increase in reported cases of violence/abuse against women. In countries like India, women still find it difficult to protest or lodge a complaint because of the sensitivity, humiliation and shame around the subject as well as pressure imposed by the families. Therefore, it is important that women should understand their rights provided by laws and the courts of our country.
The Protection of Women from Domestic Violence Act, 2005 defined different aspects as to the meaning of domestic violence, the aggrieved, the respondent etc. Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 defined the term “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 this Act.” On 6th October, 2016, in the case of Hiral P. Harsora and Ors vs Kusum Narottamdas Harsora and Ors. [Civil Appeal No.10084 of 2016], the Supreme Court deleted the word “adult male” replaced it with “person” in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, detecting that “the words “adult male person” are conflicting to the object of affording protection to women who have suffered from domestic violence “of any kind” and that “ 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. ” The provision of “adult male person” was challenged in the case.
Facts
Kusum Narottam Harsora and her mother Pushpa Narottam Harsora on 3rd April, 2007 filed a complaint against her brother/son Pradeep, his wife and the two sisters/ daughters under “The Protection of Women from Domestic Violence Act, 2005”, alleging acts proving violence against both the plaintiffs. They withdrew the case on 27th June 2007 and filed independent complaints against the respondents. The respondents’ sought 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(q) of “The Protection of Women from Domestic Violence Act, 2005”, which states that 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.
This application was rejected. Hence, a writ petition was filed in the Bombay High Court by the respondent. On 15th February 2012, the Bombay High Court accepted the argument of the respondent and on the basis of “The Protection of Women from Domestic Violence Act, 2005” discharged the female respondents. The mother and daughter filed a petition in the Supreme Court of India alleging that the Section 2(q) of the above-mentioned Act is violative of Article 14 of the Constitution of India.
Arguments
Arguments presented by Appellants
· Sh Harin P. Raval, Senior advocate appearing on behalf of the appellants argued that the “respondent” as defined in Section 2(q) of the Act can only mean an adult male person.
· He stated that as per Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 “respondent” only in the case of an aggrieved wife or female living in a relationship in the nature of a marriage, in this case, a female relative of the husband or male partner can be accused as a respondent.
· He sought to attack the judgment on the ground that the Court has not read down the provision of Section 2(q), but read just the definition.
· He further argued that in fact there was no uncertainty because the expression “adult male person” cannot be weakening in the manner done by the High Court in the dispute judgment.
Arguments presented by Respondents
· Ms. Meenakshi Arora, senior counsel appearing on behalf of the respondents, countered each of these submissions.
· She argued that the 2005 Act is for the protection of women from domestic violence of all kinds.
· In the said case, it was 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.
· She said that the High Court judgment was correct, and that if the said expression is not struck down, it should to be read down in the manner advised to make it constitutional.
· She also countered the submission of Shri Raval stating that the 2005 is not penal in nature and cannot be availed of in the civil courts.
· She further argued that the Act would become unworkable and would be used against adult male members and not their co-conspirators who may be females.
· Ms. Pinky Anand, Additional Solicitor General for India, adopted the arguments of the counsel appearing for the Union of India in the Bombay High Court.
· She submitted that in view of the judgment in Kusum Lata Sharma v. State of the Delhi High Court, constituting that the mother-in-law is also entitled to file a complaint against the daughter-in-law under the provisions of the 2005 Act. She submitted that the challenged judgment does not require interference at their end.
Judgement
The two judges of the Supreme Court consisting of Justice R. Nariman and Justice Kurian Joseph declared that the words “adult male” in Section 2(q) of the 2005 Act would stand deleted since these words do not agree with Article 14 of the Constitution of India. So, the provision to Section 2(q) rendered ineffective and stands deleted.
Precedents
· Prabir Kumar Ghosh & Ors vs Jharna Ghosh & Anr on 20 August, 2015
· Jyoti vs Vishal Chauhan on 3 March, 2020
· Smt. Kajal vs State Of U.P. And 3 Others on 31 January, 2020
Case analysis
· The court came to the ending that the issue of Domestic Violence against Women is still triumph. There are some compensations available to the aggrieved in the Criminal law, hence “The Protection of Women from Domestic Violence Act, 2005” is important.
· The limit of the Respondent to being an adult is not valid anymore as it is not difficult to find a minor person participating or abetting in domestic violence against the offence. The word “adult” deleted.
· The words “adult male” being deleted would not make the rest of the sub section or section invalid. The definition of the word “Respondent” shall be changed, and it shall include anyone and everyone without discriminating on gender or age.
· “Adult male” is a violation of Article 14 of The Constitutions of India 1949, they were deleted and the rest of the provision stayed valid.
· 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.
Conclusion
Hiralal P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, wherein the Hon’ble Court had struck down a part of Section 2(a) of DV Act holding it to be violative of Article 14 of the Constitution, and the phrase ‘adult male’ as appearing in Section 2(q) stood deleted. The High Court observed that if the said sub-section is read after deletion of the expression ‘adult male’, it would appear that any aggrieved person, in terms of DV Act, whether male or female, is entitled to invoke provisions of the Act. It gave an opening 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.
Reference/bibliography
·Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors on 6 October, 2016 (indiankanoon.org)
·Hiralal P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. - iPleaders https://main.sci.gov.in/judgments
·Protection of Women from Domestic Violence Act, section 2(q), No43.Acts of Parliament, 2005.
·Hiral P. Harsora and Ors. vs. Kusum Narottamdas Harsora and Ors. (2016) 10 SCC 165.
·Protection of Women from Domestic Violence Act, section 2(a), No43.Acts of Patliament,2005.
·Protection of Women from Domestic Violence Act, section 2(f), No43.Acts of Parliament, 2005.
·Protection of Women from Domestic Violence Act, section 2(s), No43.Acts of Parliament, 2005.
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